Opinion
No. 5-451 / 04-1622
Filed October 26, 2005
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
Plaintiff appeals a jury verdict for defendants in this tort action arising from an automobile accident. AFFIRMED.
George Appleby and James Carney of Carney, Appleby, Nielsen Skinner, P.L.C., Des Moines, for appellant.
Douglas A. Haag and Harry Perkins III of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker Ordway, L.L.P., Des Moines, for appellees Mendenhall.
Jason Madden and William J. Miller of Bradshaw, Fowler, Procter Fairgrave, P.C., Des Moines, for appellee Wood.
Heard by Huitink, P.J., Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On January 17, 2000, at about 10 a.m., Matthew McCoy was driving westbound on Southeast Evergreen Avenue in Des Moines, Iowa. At the same time, Erin Mendenhall was driving eastbound on Evergreen. As she came around a curve, she hit a patch of ice and realized the car was not turning the direction she was turning the wheel. Mendenhall applied her brakes, but was unable to stop. Mendenhall's vehicle side-swiped McCoy's vehicle, and pushed it partially up over the curb on the north side of the street. Mendenhall's vehicle continued to slide several yards down the street.
Mendenhall got out of her car to see if McCoy was alright. She then proceeded to go to a nearby house to use the telephone. In the meantime, Thomas Wood was driving eastbound on Evergreen. He saw the two vehicles and attempted to stop to see if he could help. Wood also hit a patch of ice and was unable to stop. His car slid across the road, hit the curb, and then slid into the left-front fender of McCoy's vehicle.
McCoy filed suit against Mendenhall and Wood claiming they were negligent and that he received injuries to his shoulder and neck as a result of the two accidents. During the trial McCoy testified there had been sleet or freezing rain for about ten minutes before the accident. He stated Evergreen was icy, and he was driving between twenty to twenty-five miles per hour due to poor road conditions. McCoy estimated that Mendenhall was driving thirty-five to forty miles per hour, and Wood was driving forty miles per hour or more. The speed limit on Evergreen is thirty miles per hour.
Mary Mendenhall, the owner of the vehicle driven by Erin Mendenhall, was also included as a defendant.
Mendenhall testified that she was returning home from a doctor's appointment at about 10 a.m., and there was no precipitation. She stated she encountered one slippery spot on the intersection of Chestnut and Ninth Streets, but she was able to control her car and come to a stop at that location. She stated she proceeded cautiously, but did not encounter any other slick spots until the accident. She testified she was driving around twenty-five miles per hour.
At about 10 a.m., Wood was returning from getting his car serviced, and he did not notice any precipitation or slippery conditions on the roads. He stated the road looked fine and he did not have any problems driving until he hit the icy patch on Evergreen. Wood testified he looked as his speedometer as he attempted to brake, and he was driving thirty-two miles per hour. He asserted he was going much slower by the time he hit McCoy's vehicle because he had hit the curb first.
The jury was given an instruction on the sudden emergency doctrine, which provided, in part:
A person who relies upon sudden emergency to justify his or her conduct must prove all of the following propositions:
1. He and/or she was faced with a sudden emergency.
2. The emergency was not created by his or her own negligence.
3. He and/or she conducted himself or herself as a reasonably careful person would have in a similar emergency.
A sudden emergency is a combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action.
Someone who is faced with a sudden emergency not brought about by his or her fault, and is required by such emergency to act without sufficient time to determine the best action to take, is not held to the same accuracy of judgment as would be required if there was time to deliberate. A driver of a vehicle who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that decree of care which a reasonable careful person would have exercised under the same or similar circumstances.
McCoy objected to the instruction, asserting that it should have provided that a sudden emergency is an "unforeseen combination of circumstances which calls for immediate action."
The jury returned a verdict finding Mendenhall and Wood were not negligent. McCoy filed a motion for a new trial. He claimed the district court should not have given an instruction on sudden emergency because it was not supported by the facts of the case. He also reiterated his objection to the instruction which was given because it did not specify that a sudden emergency is an "unforeseen combination of circumstances." The district court overruled the motion for new trial. McCoy appeals.
II. Standard of Review
This case was tried at law, and our review is for the correction of errors at law. Iowa R. App. P. 6.4. The jury's factual findings are binding on appeal if they are supported by substantial evidence. Iowa R. App. P. 6.14(6)( a).
III. Sudden Emergency Instruction
McCoy claims the district court should have granted his motion for a new trial. He asserts the district court should have not given the sudden emergency instruction. In the alternative, he claims the sudden emergency instruction which was given did not adequately set forth the law on that issue. In ruling upon motions for new trial, the district court has broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R. App. P. 6.14(6)( c).
A.
We first turn to the issue of whether the district court erred by giving the jury a sudden emergency instruction. Defendants claim McCoy failed to preserve this issue for our review. During the trial McCoy objected to the substance of the instruction, not that the instruction was given at all. In his motion for new trial, however, McCoy argued the facts of the case did not support giving the sudden emergency instruction. Although we have doubts about whether this issue was preserved, we will address it.
Under the doctrine of sudden emergency, a defendant's failure to obey statutory law may be excused if the failure is due to a sudden emergency. Foster v. Ankrum, 636 N.W.2d 104, 106 (Iowa 2001). A sudden emergency is defined as: (1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; or (3) a sudden or unexpected occasion for action, exigency, or pressing necessity. Vasconez v. Mills, 651 N.W.2d 48, 54 (Iowa 2002); Bangs v. Keifer, 174 N.W.2d 372, 374 (Iowa 1970).
The sudden emergency doctrine does not apply if it clearly appears the defendant "either had actual knowledge of a dangerous situation or in the exercise of reasonable care could have such knowledge in time to act in relation thereto." Vasconez, 651 N.W.2d at 54 (quoting Rice v. McDonald, 258 Iowa 372, 380, 138 N.W.2d 889, 894 (1965)). Here, McCoy claims Mendenhall and Wood should have known of the dangerous situation in this case, the icy roads, and that therefore, the sudden emergency doctrine should not apply.
The supreme court has considered a similar situation, and stated:
In the present context, two main situations may exist with respect to icy highways. In one situation the icy condition is general, and the driver must be taken as being aware of it. If such a driver proceeds in normal fashion notwithstanding the ice and eventually slides on a patch of it, he cannot set up the icy condition as an "emergency." An emergency requires "an unforeseen combination of circumstances" but the element of unforeseeability is missing. . . .
In the other situation, although the weather may be inclement, ice has not formed so far as the driver reasonably observes. He proceeds in accordance with conditions as they appear. Suddenly he encounters an unanticipated patch of ice and slides. Normally in this situation the driver may rightly claim that the decision on whether the ice was reasonably foreseeable is for the jury to make.
Bannon v. Pfiffner, 333 N.W.2d 464, 460-70 (Iowa 1983) (citations omitted).
In the present case there was sufficient evidence to support giving a sudden emergency instruction under the second scenario outlined above. Although Mendenhall testified she encountered one other slippery area, she also testified she did not encounter any other problems during her drive. Wood testified that he did not notice any slippery or slick conditions during his drive. We determine the issue of whether there was a sudden emergency was properly submitted to the jury. See Weiss v. Bal, 501 N.W.2d 478, 481 (Iowa 1993) ("We are mindful that it is ordinarily up to the jury to decide whether, in fact, a party was faced with a sudden emergency.").
McCoy also claims Mendenhall and Wood created an emergency by driving too fast for the conditions. "If a person tortiously bring about an emergency, he cannot rely on it as an excuse for resulting harm although he conducts himself properly in the emergency itself." Bannon, 333 N.W.2d at 470. There was disputed evidence on this issue, and we determine the question of whether defendants were driving too fast was a question properly submitted to the jury. See Weiss, 501 N.W.2d at 481.
B.
As an alternative argument, McCoy contends that the sudden emergency instruction was improper because it did not specify that a sudden emergency is an "unforeseen combination of circumstances." Vasconez, 651 N.W.2d at 54. The instruction given in this case comports with Iowa Civil Jury Instruction No. 600.75, which provides:
A sudden emergency is a combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action. A driver of a vehicle who, through not fault of [his] [her] own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.
Clearly, the uniform jury instruction does not contain the word "unforeseen." This is despite the fact that case law has defined a sudden emergency as an "unforeseen combination of circumstances." See e.g., Vasconez, 651 N.W.2d at 54; Foster, 636 N.W.2d at 106; Beyer v. Todd, 601 N.W.2d 35, 39 (Iowa 1999); Weiss, 501 N.W.2d at 480; Bannon, 333 N.W.2d at 470, Bangs, 174 N.W.2d at 374. The uniform instruction does contain the terms "sudden" and "unexpected" which contain the same idea as "unforeseen." If something is sudden and unexpected it is not foreseen. Furthermore, we are reluctant to disapprove uniform instructions. State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995); State v. Johnson, 534 N.W.2d 118, 127 (Iowa Ct.App. 1995). We conclude the district court did not err by following the uniform jury instruction on sudden emergency.
We determine the district court did not abuse its discretion in denying McCoy's motion for new trial. We affirm the decision of the district court.
AFFIRMED.
Zimmer, J., concurs; Brown, S.J., concurs specially.
I agree the evidence supports giving an instruction on sudden emergency as to both defendants. I also agree the uniform jury instruction given by the district court minimally conveys the information which the plaintiff claims is lacking. However, in situations such as this, I think the instruction would benefit from express incorporation of the unforseeability concept urged by the plaintiff, and supported by such cases as Vasconez v. Mills, 651 N.W.2d 48, 54 (Iowa 2002), and Bangs v. Keifer, 174 N.W.2d 372, 374 (Iowa 1970).