Opinion
No. 26472-6-III.
October 9, 2008.
Appeal from a judgment of the Superior Court for Okanogan County, No. 05-2-00406-3, Lesley A. Allan, J., entered September 17, 2007.
UNPUBLISHED OPINION
Douglas and Diane Buchanan appeal an automobile personal injury defense verdict finding no negligence against Joan Carol Danison. The Buchanans contend substantial evidence does not support the verdict and the trial court erred in giving a skidding instruction. Because substantial evidence supports the verdict and the challenged instruction is a correct statement of law, the trial court did not err in denying the Buchanans' new trial motion. Accordingly, we affirm.
After this case was filed, Ms. Danison changed her last name to Pfeiffer.
FACTS
Because this case partly involves a challenge to the sufficiency of the evidence, the facts are stated in the light most favorable to the nonmoving party, Ms. Danison. See Hizey v. Carpenter, 119 Wn.2d 251, 271-72, 830 P.2d 646 (1992).
On November 25, 2003, Ms. Danison, an on-duty employee of the Okanogan County Health District, was driving in a county vehicle when she collided with Mr. Buchanan along a stretch of Old Highway 97 at a curve near Rattlesnake Point. At about 2:30 p.m., Ms. Danison left her Okanogan office to drive southbound to Brewster. Ms. Danison encountered clear visibility conditions, shoulder snow, and ice patches on the roadway. As she approached the curve, she reduced her speed from 55 to 50. Leaving the curve, her vehicle left the road onto the shoulder when she overcorrected, skidded across the northbound lane, and hit a guardrail before striking Mr. Buchanan's oncoming vehicle. The Buchanans sued Ms. Danison and the District for negligence.
Ms. Danison did not claim comparative negligence at her jury trial. She formally admitted she "drifted off the paved road into snow buildup along the outer edge of the southbound lane . . . overcorrected, crossing into the northbound lane and collided with great impact into the front of Mr. Buchanan's vehicle." 2 Report of Proceedings (RP) (July 19, 2007) at 325-26. Her defense focused on whether she drove negligently under the circumstances.
Ms. Danison testified she was very familiar with the road, described the November 25, 2003 weather and road conditions, had tested her brakes and steering, was looking several car lengths ahead, and did not see any ice entering the curve. Ms. Danison testified after she negotiated the curve, "right in there it seems as though there was a transition from bare and wet to icier conditions." 2 RP (July 20, 2007) at 342. Suddenly, she started to slide, tried to pump her breaks, and did her best to regain control, but overcorrected. She had never encountered ice at that location before when other parts of the road were bare and wet.
Okanogan County Sheriff's Deputy Anthony Hawley investigated. He did not know where the stretch of ice started, or whether the curve was icy, although he saw ice on the road. Deputy Hawley testified the area tended to stay more shaded during the winter. Deputy Hawley gave the contributing causes for the accident as being over the centerline and being on the wrong side of the road.
Testifying about the road conditions were Bernard J. Randall, the tow truck driver, and two arriving drivers, Walter Abbink and Brian Carleton. Mr. Randall believed Rattlesnake Point did not tend to be icy when other areas of the highway were not. Mr. Abbink related it was not icy where he got out of his vehicle, but the road was icy where the accident occurred. Mr. Carleton saw glare ice on the road, said the roads were slick, and observed Rattlesnake Point tends to be shaded in the late afternoon.
Richard L. Cook, a consulting engineer appearing for Mr. Buchanan, testified to Ms. Danison's view at the curve and distances. At 50 miles per hour, he opined the stopping distance at a coefficient of friction of .15 would be 556 feet, and the stopping distance at a coefficient of friction of .25 would be 333 feet. Mr. Cook could not say where Ms. Danison's vehicle drifted onto the shoulder to her point of impact on the guardrail or say where her vehicle left the roadway in relation to the end of the curve. He did testify from where Ms. Danison's vehicle impacted the guardrail to "[w]here the tire tracks were seen on the shoulder by the deputy is not a major distance." 2 RP (July 19, 2007) at 304.
The court gave Instruction 14 over Mr. Buchanan's objection: "[t]he mere fact that an automobile skids and an accident occurs is not, alone, proof of negligence." 2 RP (July 20, 2007) at 369. The court gave standard negligence instructions requiring Mr. Buchanan to prove Ms. Danison's negligence, defining negligence, setting the driver's duty to use ordinary care, explaining the duty to see, and pointing out that violating a statute is considered evidence of negligence, but is not necessarily negligence.
The court instructed on three statutes: (1) driving at a reasonable and prudent speed, or "an appropriate reduced speed" in certain circumstances, including "when special hazard exists by reason of weather or highway conditions;" (2) driving on the right half of the roadway, except under limited circumstances; and (3) driving with one or more wheels on the roadway. Clerk's Papers (CP) at 59. Further, the court defined "roadway." The court refused to give an emergency instruction for Ms. Danison.
The jury returned a verdict for Ms. Danison, finding by special interrogatory she was not negligent. Mr. Buchanan unsuccessfully moved for reconsideration and a new trial under CR 59(a)(7) and (a)(9), arguing (1) Jury Instruction 14 misstated the law and (2) substantial evidence does not support the jury's verdict. Mr. Buchanan appealed.
ANALYSIS A. New Trial Motion
The issue is whether the trial court erred in denying Mr. Buchanan's new trial motion. Mr. Buchanan contends a new trial is warranted under either CR 59(a)(7) or (9), because (1) the jury verdict was well outside the range of the substantial evidence presented at trial and (2) substantial justice has not been done.
We review a grant or denial of a CR 59(a) motion for reconsideration or new trial for an abuse of discretion. Lian v. Stalick, 106 Wn. App. 811, 823-24, 25 P.3d 467 (2001) (citing Kohfeld v. United Pac. Ins. Co., 85 Wn. App. 34, 40, 931 P.2d 911 (1997)). "A trial court abuses its discretion when its decision is manifestly unreasonable, or based on untenable grounds or reasons." Id. at 824 (quoting Kohfeld, 85 Wn. App. at 40). CR 59(a) permits a new trial if it can be shown:
(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;
. . . .
(9) That substantial justice has not been done.
CR 59(a)(7), (9).
Turning first to CR 59(a)(7), "we view the evidence in the record in the light most favorable to the nonmoving party to determine whether, as a matter of law, there is no substantial evidence or reasonable inferences to sustain the verdict for the nonmoving party." Lian, 106 Wn. App. at 824 (citing Hizey, 119 Wn.2d at 271-72). "Evidence is substantial when it is of sufficient quantity to 'convince an unprejudiced, thinking mind of the truth of the declared premise.'" Id. (quoting Nord v. Shoreline Sav. Ass'n, 116 Wn.2d 477, 486, 805 P.2d 800 (1991)). Matters of credibility and weight are reserved for the jury; we do not substitute our judgment. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994); State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974).
Here, the jury could find the accident resulted from unexpected ice on the roadway, rather than Ms. Danison's negligence. Ms. Danison testified that before the curve, the road was bare and wet, without ice. She testified after entering the curve, she started to slide, and then tried to regain control of her vehicle, leading to her overcorrection. Ms. Danison testified the transition to ice came in the curve.
Mr. Randall and Mr. Abbink both added that Old Highway 97 at Rattlesnake Point did not tend to be icy, as compared to other areas of the highway. Deputy Hawley related the accident area tended to stay more shaded in the winter months. According to the tow truck driver, Rattlesnake Point was generally not icy if other parts of the highway were not icy. When Mr. Abbink stopped and left his car it was not icy, but the accident scene was icy. Mr. Carleton saw glare ice at the scene and agreed the area tended to be shaded in the afternoon. The jury could give what weight they desired to Mr. Cook's data. Mr. Cook did not know where Ms. Danison's vehicle began to drift or where her car left the road in relation to the end of the curve; however, he said it was not a "major distance" from the guardrail impact point to where the tires were seen on the shoulder. 2 RP (July 19, 2007) at 304.
Viewing the evidence in the light most favorable to Ms. Danison, the jury could have concluded the accident was caused by ice upon the roadway, encountered when Ms. Danison left the curve, rather than as a result of her negligence in not avoiding or anticipating the changed conditions. Mr. Buchanan views Ms. Danison's admissions as negligence, but the jury could have found Ms. Danison acted as a reasonably prudent driver and her acts were not the legal cause of Mr. Buchanan's damage. Accordingly, the trial court did not abuse its discretion in denying Mr. Buchanan's motion for a new trial pursuant to CR 59(a)(7).
Turning to CR 59(a)(9), "[g]ranting a new trial for lack of substantial justice, CR 59(a)(9), should be rare, given the other broad grounds available under CR 59." Lian, 106 Wn. App. at 825 (citing Kohfeld, 85 Wn. App. at 41). Here, the jury weighed the evidence and found Ms. Danison's evidence more persuasive. Determinations of credibility and weight given to evidence are matters for the jury. Burnside, 123 Wn.2d at 108; O'Connell, 83 Wn.2d at 839).
Accordingly, the trial court did not abuse its discretion in denying Mr. Buchanan's motion for a new trial pursuant to CR 59(a)(9).
B. Instruction
14 The issue is whether the court erred in giving Jury Instruction 14. Mr. Buchanan contends Jury Instruction 14 incorrectly states the law; it failed to shift the burden to Ms. Danison to show the only cause of the accident was skidding that was beyond her control; and it was the equivalent of giving a disfavored "unavoidable accident" instruction.
In his third assignment of error, Mr. Buchanan claims Jury Instruction 14 was a comment on the evidence, but he provides no argument to support this contention and we disregard it. See RAP 10.3(a)(6) (requiring argument); see also Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (applying rule).
"Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). We review claimed errors of law in jury instructions de novo. Id. Further, for reversal, prejudice must be shown. Id.
In a negligence action, the plaintiff must prove the following four elements: "(1) existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause." Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). Negligence is the failure to exercise reasonable or ordinary care; "that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances or conditions." Gordon v. Deer Park Sch. Dist. No. 414, 71 Wn.2d 119, 122, 426 P.2d 824 (1967). Moreover, "[n]egligence is never presumed but must be established by a preponderance of the evidence by the one asserting it." Id. "The fact that an accident occurred does not in and of itself establish negligence." Id.
"[T]he mere skidding of an automobile, alone, is not evidence of negligence." Rickert v. Geppert, 64 Wn.2d 350, 355, 391 P.2d 964 (1964) (citing Osborne v. Charbneau, 148 Wash. 359, 364, 268 P. 884 (1928)). Rather, "it is a fact to be taken into consideration by the jury, along with all the other facts in the case, in determining whether there was negligence in the operation of the automobile." Osborne, 148 Wash. at 365.
In Rickert v. Geppert, the plaintiff parked her vehicle after she was rear-ended to exchange information with the other driver. Rickert, 64 Wn.2d at 351-52. Heavy fog was present and ice patched the roadway. Id. at 351. As she left her vehicle, she saw the defendant's vehicle skidding toward her. Id. at 352. The plaintiff moved to the rear of her vehicle before it was struck and injured by the defendant. Id. at 353. After a verdict for the defendant, the plaintiff appealed. Id. The critical instruction partly stated, "the mere skidding of an automobile, alone, is not evidence of negligence." Id. at 355. The court upheld the instruction, reasoning, "[t]he fact that an automobile skids and an accident results does not demonstrate that the conduct of a defendant was such that he created an unreasonable risk of harm to others." Id. And, important here, further reasoned:
[The defendant's] awareness or lack of awareness of icy conditions on the roadway would be a factor for the jury to consider in determining what should be the conduct of a reasonably prudent man under similar circumstances, but it does not amount to negligence as a matter of law, as [the plaintiff] suggests.
Id.
We conclude Jury Instruction 14 correctly stated the law under Rickert. Rather than being proof of negligence alone, both skidding and the occurrence of an accident are facts to be considered in determining whether the driver was negligent. Osborne, 148 Wash. at 365.
Mr. Buchanan argues the trial court should have included burden shifting language in Instruction 14 because of Ms. Danison's admissions, but the law imposes no such requirement. Mr. Buchanan's cases cited for his argument are inapposite because they were decided before 1986 when comparative negligence displaced contributory negligence in torts, and dealt with other legal theories. For example, Mr. Buchanan incorrectly relies on a jury instruction in Osborne v. Charbneau, but, the instruction applied the presumed negligence doctrine of res ipsa loquitur. Also see Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003) (res ipsa loquitur).
Next, Mr. Buchanan cites to a series of inapplicable cases involving violation of a statute as negligence per se. See Kiessling v. Nw. Greyhound Lines, 38 Wn.2d 289, 292-93, 229 P.2d 335 (1951); Martin v. Bear, 167 Wash. 327, 329-30, 9 P.2d 365 (1932); Tutewiler v. Shannon, 8 Wn.2d 23, 27, 111 P.2d 215 (1941); Thomas v. Adams, 174 Wash. 118, 120, 24 P.2d 432 (1933); Weaver v. Windust, 195 Wash. 240, 242, 80 P.2d 766 (1938); Coerver v. Haab, 23 Wn.2d 481, 485, 161 P.2d 194 (1945); NeSmith v. Bowden, 17 Wn. App. 602, 606-07, 563 P.2d 1322 (1977); Baughn v. Malone, 33 Wn. App. 592, 596, 656 P.2d 1118 (1983). However, since 1986 violating a statute is merely evidence of negligence with exceptions not relevant here. RCW 5.40.050.
Mr. Buchanan argues giving Instruction 14 is akin to giving a disfavored "unavoidable accident" instruction. We disagree. "An unavoidable accident is one which could not have been prevented by the exercise of due care by both parties under the circumstances prevailing." Woodiwiss v. Rise, 3 Wn. App. 5, 8, 471 P.2d 124 (1970) (citing Van Ry v. Montgomery, 58 Wn.2d 46, 48-49, 360 P.2d 573 (1961)). Instruction 14 tells the jury how to consider one fact (skidding) with other case facts to determine if Ms. Danison negligently operated her vehicle. Osborne, 148 Wash. at 365.
Viewing the jury instructions as a whole, we conclude the jury was properly informed of the applicable law. See Hue, 127 Wn.2d at 92. The trial court did not err in giving Jury Instruction 14.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and KULIK, J., concur.