Chief Justice DURHAM, opinion of the Court:
¶ 1 Mr. Boyle was hit by a truck and injured while walking in a crosswalk. Mr. Christensen, the driver, admitted liability, but the case went to trial on damages. Not satisfied with the jury award, Mr. Boyle appealed, and the court of appeals affirmed the district court decision in all respects. Mr. Boyle sought certiorari review regarding
¶ 2 Appellants Mr. and Mrs. Boyle are husband and wife. Mr. Boyle was hit by a truck while walking in a crosswalk in a grocery store parking lot. Mr. Boyle sustained injuries that led to back surgery. For months he could not work and therefore lost his job. He now suffers from chronic pain that has multiple consequences, including an inability to sleep through the night, sleep in a bed, drive for extended periods, work an eight-hour day, or perform certain work-related tasks such as lifting two buckets of golf balls at once. He is now working for a new company in the same general industry he worked for before and for the golf shop where he worked before the injury, but with modified income potential and reduced abilities (mentally because of the lack of sleep and constant pain, and physically because he is unable to lift buckets of golf balls, drive for extended periods, or work a full eight-hour shift). He was once a professional golfer, and the back injury has also affected his golf game.
¶ 3 Mr. Boyle brought a negligence action against Mr. Christensen, who admitted liability. The case went to trial on the question of appropriate damages. Before trial, Mrs. Boyle also brought a claim for loss of consortium, which the district court dismissed. The grounds for dismissal were that Mrs. Boyle could not show that Mr. Boyle had suffered a qualifying injury under Utah Code section 30-2-11(1).
¶ 4 In the jury selection process, both parties submitted voir dire questions. The judge combined and revised the questions, omitting some of Mr. Boyle's questions that addressed jurors' views on tort reform issues. It is unclear from the record (and disputed in the briefs before this court) whether the district court provided copies of its own voir dire questions to the parties before it began questioning the potential jurors. During the jury selection process, Mr. Boyle's counsel neither objected to the omission of any questions nor asked for additional questions, even when given the opportunity to do so. Mr. Boyle does not dispute that no such attempt was made either before the jury or in the judge's chambers.
¶ 5 During closing argument, Mr. Christensen's counsel referred for the first time in trial to the McDonald's coffee case. Mr. Christensen's counsel incorrectly represented that both the McDonald's coffee case and the case at hand involved an effort at a per diem analysis in determining damages. Mr. Boyle's counsel immediately objected that the case was not in evidence and was prejudicial; his objection was noted but overruled. In the limited time allowed for Mr. Boyle's response, his counsel tried to mitigate the impact of this statement by explaining that the judge in the McDonald's case reduced the ultimate verdict. Mr. Boyle's counsel did not explain how the facts of the case had been misrepresented.
¶ 6 The jury verdict was for a total of $62,500. The jury awarded $29,700 for past
¶ 7 Mr. and Mrs. Boyle appealed, and the court of appeals affirmed. Boyle v. Christensen, 2009 UT App 241, 219 P.3d 58. The Boyles then petitioned this court for certiorari review. We have jurisdiction under Utah Code section 78A-3-102(3)(a) (Supp.2010).
¶ 8 "On certiorari, we review the court of appeals' decision for correctness." Magana v. Dave Roth Constr., 2009 UT 45, ¶ 19, 215 P.3d 143.
¶ 9 The court of appeals outlined the proper standards of review for each issue in this case. For challenges to the trial court's management of jury voir dire, an abuse of discretion standard was appropriate, but "alleged deficiencies in voir dire must [have been] brought to the district court's attention in order to be preserved for appeal." Boyle v. Christensen, 2009 UT App 241, ¶ 7, 219 P.3d 58. Challenges regarding "`whether remarks made during closing argument improperly influenced the verdict'" also an abuse of discretion standard. Id. ¶ 8 (quoting Green v. Louder, 2001 UT 62, ¶ 35, 29 P.3d 638). Finally, "a trial court's ruling on a motion to dismiss [is reviewed] for correctness, according no deference to the trial court." Id. ¶ 9 (internal quotation marks omitted); J.S. v. P.K. (In re Adoption of I.K.), 2009 UT 70, ¶ 7, 220 P.3d 464.
¶ 10 First, Mr. Boyle claims that the court of appeals erred in holding he did not preserve the jury voir dire issue for appeal. Furthermore, he argues that the district court abused its discretion in eliminating his proposed tort reform questions. We need not reach the latter point because we affirm the court of appeals on the former. Second, Mr. Boyle argues that the reference to the McDonald's coffee case in closing argument was improper and warranted reversal. We agree that, under the circumstances in this case, the improper reference had a reasonable probability of affecting the outcome to Mr. Boyle's detriment, thus requiring a new trial. Third, Mrs. Boyle argues that her loss of consortium claim was improperly dismissed. Because there were issues of fact (or at least issues of the reasonable inferences properly to be drawn therefrom) as to whether Mr. Boyle had suffered a qualifying injury, we agree that Mrs. Boyle's claim was erroneously dismissed.
¶ 11 The court of appeals correctly concluded that Mr. Boyle failed to preserve for appeal the claim that voir dire questioning was inadequate. The claim was not preserved because Mr. Boyle's counsel never objected that the district court's questions insufficiently addressed tort reform, nor did he seek additional questioning during the voir dire process before affirmatively approving the jury selected. In approving the composition of the jury, he was implicitly approving the process by which the jury had been selected. We have stated that
State v. Lee, 2006 UT 5, ¶ 18, 128 P.3d 1179 (citation omitted). Using the same logic, Mr. Boyle cannot approve the composition of the jury and later challenge the process used to select it unless he has registered a relevant objection.
¶ 12 In spite of this rule, Mr. Boyle argues that (1) the tort reform questions that he submitted to the judge before voir dire should be sufficient alone to preserve the issue on appeal, and (2) there was no opportunity
¶ 13 In arguing that his submitted tort reform questions should be sufficient to preserve the appeal, Mr. Boyle relies on Utah Rule of Civil Procedure 46:
Relying on this rule, Mr. Boyle claims he was not required to object to the district court's voir dire questions because they constituted a "ruling or order," and Mr. Boyle had already submitted differently formulated questions before the district court decided on its own list.
¶ 14 The problem with this reasoning is that the district court's list of voir dire questions did not constitute a "ruling or order" as those terms are used in rule 46. Voir dire questions cannot be fully defined until after the voir dire process is completed. Until that point, the district court may agree to additional or revised questioning. Here, the district court accepted questions from both parties, and then constructed its own questions in an effort to accommodate both sides. The district court's new questions presented a new issue to the parties: did the revised questions sufficiently address both parties' concerns and legal entitlements? If Mr. Boyle believed the tort reform issues had been inadequately addressed in the district court's new questions, he had an obligation to notify the district court so it could examine the issue. As we have stated:
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original) (citations omitted) (internal quotation marks omitted); see also UTAH R.APP. P. 24(a)(5)(A) (requiring an appellant's brief to contain a "citation to the record showing that the issue was preserved in the trial court"). Where parties fail to object to inadequate questioning in voir dire, the district court cannot be expected to second-guess that silence. It is not unreasonable to require attorneys to voice concerns they have regarding voir dire questions at the time of voir dire so that the district court can immediately address the issues, rather than allow them to remain silent and appeal later. This approach conserves judicial resources and promotes speedy justice for all concerned.
¶ 15 Mr. Boyle claims that even were he required to make some objection, he was given no reasonable opportunity to do so. After reviewing the transcript of the jury selection in this case, we disagree. We find there were multiple opportunities for an objection or request for additional questioning. If Mr. Boyle had an advance copy of the district court's revised questions (a fact disputed by the parties and unclear from the record), he could have voiced his concern when the district court judge asked both parties whether they were ready to proceed. However, even if he did not receive the questions
¶ 16 Mr. Boyle has argued that if he did not preserve the voir dire issue for appeal, we should apply a plain error review. We will not do so because, "where the appellant affirmatively proclaims the acceptability of the jury in the trial court," the doctrine of invited error applies and denies appellate review. Lee, 2006 UT 5, ¶¶ 16-20, 128 P.3d 1179; see also State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (noting that parties invite error where they affirmatively represent to the court that they have no objection). When Mr. Boyle's counsel made no objections regarding inadequate questioning and then affirmatively passed the jury for cause
¶ 17 Mr. Boyle has argued that opposing counsel's reference to the McDonald's coffee case during closing arguments was improper and warrants reversal. Where counsel makes improper remarks during closing arguments, we will reverse only if "absent the improper argument, there was a reasonable likelihood of an outcome more favorable to the" complaining party. State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Granting a new trial is an extreme remedy that we do not provide lightly, but, for the reasons described below, we agree with Mr. Boyle that the reference here was both improper and reasonably likely to prejudice the jury, thus warranting reversal.
¶ 18 We grant both sides "considerable latitude in their closing arguments. . . . to fully discuss from their perspective the evidence and all inferences and deductions it supports." Id. However, that "latitude does not extend to counsel calling the jury's attention to material that the jury would not be justified in considering in its verdict." State v. Alonzo, 973 P.2d 975, 981 (Utah 1998). For example, comments meant to inflame passion or prejudice in the jury would be improper because they divert the
¶ 19 Here, during closing argument, Mr. Christensen's counsel referred to Mr. Boyle's requested pain and suffering damages and said the following:
Mr. Boyle's counsel immediately objected that the reference to this case was "prejudicial and . . . not in evidence." His objection was noted but overruled.
¶ 20 Before we analyze this statement, it may be useful to explain the cultural context of the McDonald's coffee case, more formally known as Liebeck v. McDonald's Restaurants, P.T.S., Inc.
¶ 21 Although the public view of the case is understandable when limited to a superficial view of its facts, a deeper look at the details and issues in the case may dramatically alter one's perspective. Among the many relevant facts generally missing from the public consciousness are the following:
¶ 22 Given the uniquely iconic nature of this case, the passion it has produced in the media, and the general misunderstanding of the totality of its facts and reasoning among the public, we find it hard to imagine a scenario where it would be proper for a party's counsel to refer to it before a jury. Generally, as here, such a reference would seem to have the sole purpose of recalling the public outrage over isolated elements of the case—thus improperly appealing to a jury's passions. It is not the jury's job to make legal determinations, so no legal arguments from the case are relevant. The facts in the McDonald's coffee case were not in evidence before this jury and were also utterly irrelevant. Indeed, the one attempt counsel made to make her reference seem relevant was a misrepresentation because the high punitive damages award in the McDonald's coffee case had nothing to do with a per diem analysis. It is certainly unfair to require the other party to clarify all the misconceptions about this irrelevant case in the limited time allotted for closing argument. The great latitude provided in closing arguments regards reasonable inferences about evidence properly before the jury and does not extend to misrepresentations or efforts to appeal to a jury's passions. Thus the reference to the McDonald's coffee case in closing argument was improper.
¶ 23 It is a difficult task to rewind the clock and determine whether a jury verdict might have been different had some things not been said. But we are not required to make that determination in absolute terms. Instead, to determine whether reversal is warranted, the test is whether "absent the improper argument, there was a reasonable likelihood of an outcome more favorable to the" complaining party. Dibello, 780 P.2d at 1225. Given the latitude generally provided in closing argument, and the extreme nature of the remedy of granting a new trial, we will not reverse simply because statements were improper. There must be a showing of a "reasonable likelihood" that there was actual prejudice in the outcome. We have defined the words "reasonable likelihood" as "`a probability sufficient to undermine confidence in the outcome.'" State v. Knight, 734 P.2d 913, 920 (Utah 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). It falls somewhere on a spectrum between absolute certainty of influence on the verdict and the mere possibility of such. See Brown v. Div. of Water Rights, 2010 UT 14, ¶ 20, 228 P.3d 747.
¶ 24 Although the improper reference was likely made with the intent to influence the jury, whether it had a reasonable likelihood of actually doing so is the question at issue. Here, a number of factors convince us there was a reasonable likelihood of a better verdict for Mr. Boyle absent the improper reference to the McDonald's coffee case: (1) the iconic nature of the case that has aroused such public passion, as described earlier in this opinion; (2) the fact that the trial judge did not sustain the objection, thus allowing the jury to believe it was proper to consider the McDonald's coffee case when deciding the verdict; (3) the misrepresentation of the McDonald's coffee case as a per diem analysis that could have convinced the jury it was similar to the case at hand when it was not; and (4) the size of the pain and suffering damages awarded by the jury, which certainly could have been the product of entirely rejecting a per diem analysis in response to the McDonald's coffee case comparison.
¶ 25 We need not and do not decide whether any of these factors alone would have been enough to overturn the verdict. But each additional factor takes us further on the spectrum from mere possibility toward greater probability that the statement had some negative influence on the verdict for Mr. Boyle. Taken together, these factors are
¶ 26 Mrs. Boyle argues that the district court erred when it dismissed her loss of consortium claim. The district court did so, and the court of appeals affirmed, based on an erroneous interpretation of the statute at issue.
Id. § 30-2-11(1)(a).
¶ 27 When interpreting a statute, we look first to its plain language and "presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning. . . . [I]f the plain meaning of the statute can be discerned from its language, no other interpretive tools are needed." State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (internal quotation marks omitted). Here, the plain language defines an injury as "a significant permanent injury to a person that substantially changes that person's lifestyle." UTAH CODE ANN. § 30-2-11(1)(a). The parties interpreted the words "and includes" (which follow that definition) to introduce an exhaustive list of examples. This was incorrect. When "including" precedes a list, its common usage is to indicate a partial list. See BLACK'S LAW DICTIONARY 777-78 (8th ed. 2004). Had the legislature wished to limit the definition of injury to only the three listed scenarios, it could easily have stated "must include" rather than "includes." The structure of the statute also supports this interpretation because the examples are listed as a subset of the definition. If these were the only consortium claims to be honored, the overlying definition would be superfluous. Furthermore, the parties' definition would, for example, likely exclude a claim where impotence was at issue, thus providing no remedy for loss of sexual relations between spouses—one of the more common definitions of loss of consortium. See id. at 328. Had this been the legislature's intent, we believe it would have stated so clearly. Because the statute does not say "must include," we interpret the list of examples as just that—examples that satisfy the definition previously stated, but not an exclusive list. See Mouty v. Sandy City Recorder, 2005 UT 41, ¶ 39, 122 P.3d 521 ("The legislature's use of the word `includes' indicates that the [subsequent] examples listed were not necessarily meant to be exhaustive.").
¶ 28 The parties argued at length over whether changes in Mr. Boyle's abilities post-accident could constitute "incapacity" to do the same "types of jobs" he could perform
¶ 29 We affirm the court of appeals' decision that Mr. Boyle failed to preserve for appeal the claim that voir dire questioning was inadequate. However, we conclude that the improper reference to the McDonald's coffee case in Mr. Christensen's closing argument had a reasonable likelihood of prejudicing the jury and producing a less favorable outcome for Mr. Boyle. We therefore reverse and remand for a new trial. On remand, Mrs. Boyle's claim for loss of consortium should be reinstated because there are issues of fact in dispute regarding whether there was an injury under the relevant consortium statute.
¶ 30 Associate Chief Justice DURRANT, Justice PARRISH, Justice NEHRING, and Justice LEE concur in Chief Justice DURHAM's opinion.