Opinion
No. 3-287 / 02-1054.
Filed June 25, 2003.
Appeal from the Iowa District Court for Howard County, Margaret Lingreen, Judge.
Julie Bolson appeals the jury verdict for Karen Kuhn in this negligence action resulting from a car accident. AFFIRMED.
Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun Churbuck, Charles City, and James Moriarity, Cresco, for appellant.
Joel Yunek of Laird, Heiny, McManigal, Winga, Duffy Stambaugh, P.L.C., Mason City, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Julie Bolson appeals the jury verdict for Karen Kuhn in this negligence action resulting from a car accident. Bolson claims the district court erred by instructing the jury on sudden emergency. She also claims the court should have granted her motion for new trial. We affirm.
I. Background Facts Proceedings
Kuhn and Bolson are registered nurses, who usually drove together from their homes in Iowa to their jobs in Rochester, Minnesota. On February 8, 2000, at about 9:30 p.m., Kuhn had Bolson as a passenger in her Chevrolet Astro van as they were driving to work. There was blowing snow that evening, and Kuhn was driving on County Road A23 between fifty to fifty-five miles per hour. Bolson noticed a car in the ditch and alerted Kuhn. Kuhn testified, "So, I started tapping the brakes to stop to see if anyone needed help; and at that time, we must have hit like black ice and I started swerving, fishtailing." The van went into the ditch, rolled approximately three times, and landed on the passenger side. Deputy Sheriff Gordon Buss testified, "[t]he roadway was extremely slick right in that area." He stated there was black ice on the road.
Kuhn's vehicle was actually the third vehicle to go into the ditch in that area of A23 on February 8, 2000. Jon Lieder testified that about 7:00 p.m., he unexpectedly encountered a snowdrift, "a couple of feet high and very hard," which caused him to spin completely around and go into the ditch. Lieder was able to drive out of the ditch and proceed on his way. The car which Kuhn and Bolson observed in the ditch belonged to Mary Larson, who testified there was a huge drift, two to three feet high, across the road, which caused her to lose control and go into the ditch. Larson testified she had driven A23 a thousand times, but the snowdrift in that location caught her by surprise.
Bolson filed suit against Kuhn, alleging Kuhn's negligence caused her to suffer physical injuries. Kuhn raised the affirmative defense of sudden emergency. The case was submitted to a jury, which found Kuhn was not negligent. Bolson filed a motion for new trial claiming, in part, that "the sudden emergency defense was not available to a Defendant who created the situation or circumstances that created the sudden emergency." The district court denied the motion, pointing out that Bolson did not object to the instruction, and that she failed to show the jury did not follow the instruction. Bolson 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 supported by substantial evidence. Iowa R.App.P. 6.14(6)( a).
III. Sudden Emergency Instruction
Bolson contends the district court erred by instructing the jury on sudden emergency. Despite serious doubts about whether this issue was properly preserved for our review, we will proceed to address the issue on the merits.
Plaintiffs counsel failed to object to the sudden emergency instruction during the conference on instructions as required by Iowa Rule of Civil Procedure 1.924 (rule 196 as of the time of trial). Therefore, Bolson has waived her right to raise this argument on appeal. Tarrell v. Erdmann, 221 N.W.2d 504, 507 (Iowa 1974); Knudsen v. Merle Hay Plaza, Inc., 160 N.W.2d 279, 281 (Iowa 1968).
The elements of sudden emergency are: (1) the driver is confronted with a sudden emergency; (2) the emergency was not created by the driver's own negligence; and (3) the driver conducted himself or herself as a reasonable person in a similar emergency. Weiss v. Bal, 501 N.W.2d 478, 479 (Iowa 1993). The party asserting a sudden emergency existed has the burden of proving this legal excuse, and we view the evidence in the light most favorable to that party. Beyer v. Todd, 601 N.W.2d 35, 39 (Iowa 1999).
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. Vasconez v. Mills, 651 N.W.2d 48, 54 (Iowa 2002). Ordinarily, it is up to the jury to decide whether, in fact, a party was faced with a sudden emergency. Bangs v. Keifer, 174 N.W.2d 372, 374 (Iowa 1970).
We determine the factual situation in the present case is similar to that presented in Bannon v. Pfiffner, 333 N.W.2d 464 (Iowa 1983), and conclude the sudden emergency instruction was properly given. In Bannon, the supreme court noted a factual situation where:
[A]lthough 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 ice was reasonably foreseeable is for the jury to make.
Bannon, 333 N.W.2d at 470. See also Weiss, 501 N.W.2d at 482 (noting an unexpected patch of ice may create a sudden emergency). Here, there was evidence to show Kuhn went into the ditch due to an unexpected patch of black ice, which the jury could find created a sudden emergency.
Bolson herself indicated to the emergency room doctor there was a slick spot of ice, which could not be seen. In addition, Deputy Buss testified he had earlier hit an unexpected spot of black ice.
Bolson asserts Kuhn's own negligence created the emergency. She claims that if Kuhn had not tapped her brakes, they would not have slid and gone into the ditch. If a person tortiously brings about an emergency, it cannot be relied upon as an excuse for resulting harm although the person conducted himself properly in the emergency itself. Bannon, 333 N.W.2d at 470. Kuhn testified she intended to stop to see if anyone in the car in the ditch needed assistance. The supreme court has concluded, "such questions are particularly adapted to jury consideration, rather than to determination by the judge." Id. We are unable to find, as a matter of law, that Kuhn's own negligence created the emergency. We determine the district court did not err by giving the jury an instruction on sudden emergency.
IV. New Trial
Bolson claims she is entitled to a new trial because the verdict is not supported by sufficient evidence and is contrary to law. Bolson again claims Kuhn failed to show a sudden emergency, or in the alternative, that if there was a sudden emergency, it was of Kuhn's own making. In ruling upon motions for new trial the district court has a broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R.App.P. 6.14(6)( c).
We have already determined Kuhn presented sufficient evidence of a sudden emergency, not of her own making. We conclude the district court did not abuse its discretion by denying Bolson's motion for new trial. We affirm the decision of the district court.