NO. 92-219
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
DEBRA OKLAND, as Guardian A d Litem
f o r BERNIE OKLAND, a minor,
Plaintiff and Respondent,
KEITH DAVID WOLF,
-. ; ,,>?.fm-t1;
Defendant and Appellant. C L L 1, dF CUPn&t&ECOURI
ERA% OF MONTANA
APPEAL FROM: District Court of the Twentieth Judicial District,
I n and for the County of Lake,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
F o r Appellant:
Paul C. Meismer, Anita Harper Foe, Garlington,
Lohn & Robinson, Missoula, Montana
For Respondent:
Edward X. Duckworth, Attorney at Law,
Ronan, Montana
S u b m i t t e d on B r i e f s : August 20, 1 9 9 2
~ e c i d e d : April 15, 1993
Fif ed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff brought this action on behalf of her eight-year-old
son, Bernie Okland, for injuries sustained when the bicycle he was
operating collided with the vehicle being driven by defendant Keith
David Wolf. The jury returned a verdict, finding that both Wolf
and Okland were negligent and that each was 50 percent responsible
for the collision. The jury found that the reasonable amount of
Okland's damages was $40,000. Pursuant to the jury's finding of
comparative fault, the District Court entered judgment for
plaintiff in the amount of $20,000, plus costs and statutory
interest from the date of judgment. From this judgment, defendant
appeals. We affirm the District Court.
The issues raised by defendant on appeal are:
1. Was there substantial evidence to support the jury's
verdict?
2. Was defendant entitled to judgment as a matter of law
based on our decision in Ohon v. Parchen (1991), 249 Mont. 342, 816
P.2d 423?
3. Was defendant entitled to a new trial because of an
erroneous instruction given to the jury by the District Court?
4. Was defendant entitled to a new trial based upon improper
closing argument by plaintiff's attorney?
FACTUAL BACKGROUND
On July 3, 1990, eight-year-old Bernie Okland was operating
his bicycle in a westerly direction in the alley between 13th
Avenue and 12th Avenue in Polson. As he approached the alley's
2
intersection with 7th Street, he intended to make a right-hand turn
and proceed in a northerly direction. However, he was traveling
too fast, could not control his bicycle, and swerved into the
southbound lane, where he collided with defendant Keith David
Wolf's vehicle.
Defendant was 15 years old at the time of his collision with
Okland. He had received his driver's license 30 days prior to the
accident. Immediately before the collision, he was proceeding in
a southerly direction on 7th Street and conversing with his friend,
who was a passenger in the vehicle. According to all witnesses, he
was operating his vehicle at a speed of between 20 and 25 miles an
hour, which was within the legal speed limit. He testified that he
did not observe Okland until an instant before the collision.
There was no evidence that defendant applied his brakes or swerved
to take evasive action prior to the collision.
As a result of Okland's collision with defendant, he sustained
physical injuries and incurred medical expenses.
On January 10, 1991, plaintiff filed an amended complaint
alleging that the collision in which her son was injured was caused
by defendant's negligence. In his answer, defendant admitted that
the collision occurred, but denied that it was his fault and
alleged that it was caused entirely by the negligence of Okland.
The principals involved in the collision were deposed, as were
the investigating officer and an off-duty officer who witnessedthe
collision. Based on the testimony of these witnesses, defendant
moved the District Court prior to trial to enter summary judgment
holding that as a matter of law the collision in which Okland was
injured was caused solely by his own negligence. That motion was
denied by the District Court, and this case proceeded to trial
before a jury of 12 people on December 18, 1991. On December 19,
the jury returned its verdict, finding both parties negligent and
apportioning responsibility forthe collision equally between them.
The jury found that the total amount of damage sustained by Okland
as a result of his collision with defendant was $40,000.
Further facts will be discussed as necessary in the discussion
of the issues raised by defendant.
I
Was there substantial evidence to support the jury's verdict?
Defendant contends that the District Court erred when it
denied his motions for summary judgment, a directed verdict, and
judgment notwithstanding the verdict.
In reviewing a denial of a motion for summary judgment, our
scope of review is basically the same as when reviewing denial of
defendant's motion for a directed verdict. Doll v. Major Muffler Centers,
Inc. (1984), 208 Mont. 401, 416, 687 P.2d 48, 56.
Our scope of review from denial of a motion for a directed
verdict is the same as from denial of a motion for judgment
notwithstanding the verdict. Nelson v Flathead Valley Transit ( 1992) , 251
.
Mont. 269, 274, 824 P.2d 263, 267.
In Nelson, we explained the scope of review from an order
denying a motion for judgment notwithstanding the verdict as
follows:
In considering a motion for judgment notwithstanding
the verdict, the court must view all of the evidence in
a light most favorable to the non-moving party. Nicholson
.
v. United Pacific Insurance Company ( 1985) , 219 Mont 32 , 710 P .2d
1342. The motion may only be granted if it appears that
the non-moving party cannot recover upon any view of the
evidence, including legitimate inferences to be drawn
from it. Larson v. K-Mart Corporation (1990), 241 Mont. 428,
787 P.2d 361.
Nelson, 824 P.2d at 265.
In Simclzzik v. Angel Island Community Association ( 1992) , 253 Mont . 221,
228-29, 833 P.2d 158, 162-63, we stated:
We recently discussed our function in reviewing jury
verdicts. See Silvisv. Hobbs (Mont. 1992), [251 Mont. 407,]
824 P.2d 1013, 49 St. Rep. 62. It is not the function of
this Court to agree or disagree with the jury's verdict.
Our function is to determine whether substantial evidence
existed to support the verdict. In our examination, we
review the facts in the light most favorable to the
prevailing parties. If conflicting evidence exists, the
credibility and weight given to the evidence is in the
jury's province and we will not disturb the jury's
findings unless they are inherently impossible to
believe. Silvis, 824 P.2d at 1015-16, 49 St. Rep. at
63-64. Our job is complete once we find substantial
evidence in the record to support the jury's conclusion.
With that scope of review in mind, we conclude that the
following substantial evidence supports the jury's verdict:
The street on which this accident occurred was the main artery
from downtown Polson to the location of defendant's residence.
Prior to the date on which the accident occurred, defendant had
passed the intersection of the alley with 7th Street hundreds or
thousands of times. The intersection is located in a residential
area with homes on both sides of the street. Defendant was aware
that it was common for children to be playing and biking in the
area. He was also aware that because of the presence of children
in the area, it was important to keep a lookout on both sides of
the road. He acknowledged that he knew from the driver's education
course he had just completed that drivers need to be especially
alert for children because they are unpredictable and you never
know what they are going to do.
Defendant admitted that as he proceeded south on 7th Street he
would have been able to see a substantial part of the alley where
Okland was operating his bicycle, but testified that he and the
passenger in his vehicle were chatting and that he did not see the
bicycle until it was too late to take evasive action. He admitted
that if he had looked in the direction of the alley and seen Okland
coming, he could have either slowed down, braked, or swerved.
Rick Hunter testified that he is employed as a detective by
the Polson Police Department. He was off duty at the time of the
accident. However, he witnessed the accident as a passenger in a
third vehicle.
The vehicle in which Hunter was traveling was proceeding in an
easterly direction on 12th Avenue. His position was about one-half
block north of the intersection of the alley and 7th Street. He
was significantly further away from the alley than defendant.
However, from that vantage point he was able to observe Okland
operating his bicycle in a westerly direction in the alley. He
6
noticed that Okland did not have control of his bicycle. The bike
was wobbling as if its rider was trying to make a turn, but was
unable to do so. He was able to make these observations and
conclude that a collision was going to occur from one-half block
away. He testified that about two to three seconds passed from the
point when he first saw Okland until the impact occurred. He had
time to yell to the driver of his vehicle that there was going to
be an accident. During that time, he did not see defendant make
any effort to swerve. He did not see any brake lights applied, and
he did not see any indication that defendant had observed the
bicycle.
Hunter also testified that he was familiar with the area where
the accident occurred and that it is a thickly populated area
where, on a summer evening, it was common to see children on bikes
and pedestrians out walking. He testified that a driver in that
area should certainly plan on children being present and take
appropriate precautions. He stated that when he drives in that
area, he scans both sides of the road as a precaution.
Denman Lee, Ph.D., is a physics professor at Montana State
University and an accident reconstruction expert. He testified,
without objection by defendant, regarding his qualifications. Lee
investigated the accident to determine defendant's sight distances
as he proceeded in a southerly direction on 7th Street, and he
determined how long Okland's bicycle should have been visible to
defendant prior to the point where the collision occurred. He
testified that, based upon the speed at which he concluded the
7
bicycle was traveling, defendant would have been able to observe
the bicycle for at least 4 seconds prior to the collision if he had
been driving at a speed of 20 miles per hour, and 3.6 seconds prior
to the collision if he had been driving at a speed of 25 miles per
hour. Lee also testified that including reaction time, it would
have taken defendant approximately 2.3 seconds to bring his vehicle
to a complete stop from a speed of 20 miles per hour, and 2.6
seconds to bring his vehicle to a complete stop from a speed of 25
miles per hour. In summary, he concluded that if defendant had
seen what was there to be seen, he could have brought his vehicle
to a complete stop prior to colliding with Okland's bicycle.
The District Court properly instructed the jury that:
Negligence is the failure to use reasonable care.
Negligence may consist of action or inaction. A person
is negligent if he fails to act as an ordinarily prudent
person would act under the circumstances.
In Paytze v. Sorellson (1979), 183 Mont. 323, 599 P.2d 362, we held
that:
Under Montana law, a motorist has a duty to look not
only straight ahead but laterally ahead as well and to
see that which is in plain sight. Furthermore, a
motorist is presumed to see that which he could see by
looking, and he will not be permitted to escape the
penalty of his negligence by saying that he did not see
that which was in plain view. Nissen v Johnson (1959), 135
.
Mont. 329, 333, 339 P.2d 651, 653; SoreIk v Ryan (1955),
.
129 Mont. 29, 281 P.2d 1028; Koppang v Sevier (l938), 106
.
Mont. 79, 75 P.2d 790. If a motorist does not keep a
proper lookout, a jury may find him negligent.
We conclude that under these circumstances there was
sufficient evidence, when construed most favorably for the
prevailing party, to support the jury's finding that defendant was
negligent by failing to keep a proper lookout and have his vehicle
under sufficient control to avoid his collision with plaintiff's
son.
Defendant also contends that even if there was evidence to
support a finding that defendant was negligent, the District Court
should have concluded that Okland's negligence was greater than
defendant's as a matter of law. In support of this contention,
defendant cites numerous statutes which he contends Okland violated
by the manner in which he operated his bicycle. However, we find
the circumstances in this case similar to those in Dillard v Doe
.
(1992), 2 5 1 Mont. 379, 824 P.2d 1016, where we recently held that
when there is evidence of negligence by both parties, the
respective degree of each party's negligence is not normally
susceptible to apportionment as a matter of law.
In Dillard, the plaintiff was walking along the highway in
darkness, wind, and snow when he was struck by a snowplow. He sued
the State of Montana based on the alleged negligence of the
snowplow operator. The district court granted summary judgment to
the State based on its conclusion that the plaintiff was negligent
as a matter of law and that even if the snowplow operator was
negligent, reasonable minds could not differ on whether the
plaintiff's negligence exceeded that of the defendant. In
reversing the judgment of the district court, we pointed out that:
Ordinarily, issues of negligence are questions of
fact not susceptible to summary adjudication. Brohrnan v.
State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69.
Liability should not be adjudicated upon a motion for
summary judgment where factual issues concerning
negligence and causation are presented. Duchesneau v. Silver
Bowcounty (1971), 158 Mont. 369, 377, 492 P.2d 926, 931.
Dillard, 824 P.2d at 1018-19.
We also relied on Reedv.Little (1984), 209 Mont. 199, 206-07, 680
P.2d 937, 940-41, where we held that where there is evidence that
one party to a lawsuit violated highway traffic statutes, and also
evidence of negligence on the part of the other party, it is up to
the jury to weigh and compare the negligence of both parties in
reaching its verdict. Likewise, in this case, we hold that where
there was evidence of negligence on the part of both parties, it
was for the fact finder to determine the comparative degree of
negligence. The District Court did not err by submitting the issue
of comparative negligence to the jury.
II
Was defendant entitled to judgment as a matter of law based on
our decision in Okon v. Parchen (1991), 249 Mont. 342, 816 P.2d 423?
Defendant contends that since he was operating his vehicle in
his own lane of travel at a lawful speed, his only act or omission
which contributed to the collision was his failure to anticipate
that plaintiff would violate the law. His argument continues that
since we held in Okon that it is not negligent to fail to
anticipate the negligence of another, defendant was not negligent
in this case. However, the facts in Okon are distinguishable from
the facts in this case and we conclude that plaintiff's recovery is
not barred by Okon.
In Okon, the plaintiff, who was the favored driver, collided
with the defendant in a Great Falls intersection when the defendant
failed to yield the right-of-way. We held that the plaintiff was
not negligent for failing to anticipate that the defendant would
not yield to him. The difference in that case was that the
plaintiff actually observed the defendant shortly prior to the
collision and saw nothing that would indicate that defendant would
not stop. There was no suggestion that the defendant's vehicle was
out of control. The plaintiff then did the responsible thing,
which was to look for traffic coming from the opposite direction.
When he looked back in the defendant's direction, the collision was
unavoidable. We noted that:
Olson said that he saw Parchen's pickup truck, but
thought Parchen was going to stop and looked away
momentarily. A driver of a vehicle traveling on a street
protected by a "yieldg1sign has a right to rely upon the
compliance of the driver of a vehicle which must yield
with the yield right-of-way statutes. Olson cannot be
contributorily negligent because his alleged failure to
see Parchen's vehicle entering the intersection was not
the proximate cause of the collision.
In this case, defendant did not see Okland because he did not
keep the lookout which we have held is required by law. If he had
observed Okland prior to the collision, he would have noted, as did
Officer Hunter, that Okland's bicycle was out of control and that
there was no way he would be able to bring it to a stop at the
intersection, or keep it in his own lane of travel. Under those
circumstances, it would not have been reasonable for defendant to
presume that Okland would comply with the rules of the road.
In Okon, the plaintiff observed the defendant at the
appropriate time and had no reason to believe he would not comply
with the law. In this case, defendant failed to observe Okland at
any time; if he had, he would have been aware that he was not in
sufficient control to comply with the law. For these reasons, we
conclude that Okon is not applicable to the facts in this case and
does not bar judgment for plaintiff.
I11
Was defendant entitled to a new trial because of an erroneous
instruction given to the jury by the District Court?
Included among the original jury instructions proposed by
plaintiff was Plaintiff's Proposed Instruction No. 28. It read as
follows:
It does not follow, merely because a party to this
action has violated some statutory provision that you
must find him to have been negligent. This is only
evidence to be considered in determining whether there
was negligence.
During the settlement of instructions, that instruction was
withdrawn by plaintiff. Defendant contends on appeal that he
objected to the instruction. However, there is no record of any
objection in the transcript provided to this Court.
Somehow, the withdrawn instruction was included with the
court's instructions which were read to the jury. After the court
concluded reading those instructions, counsel for defendant asked
to approach the bench where a discussion off the record was
conducted. Following that discussion, the District Court Judge
reported to the jury that he had inadvertently included Instruction
No. 28 and that the attorneys had stipulated that it should be
removed from the instructions. Both attorneys so stipulated.
There is no further record of any objection to the procedure
followed by the court, nor is there any indication in the record
that defendant requested any relief, such as a mistrial or further
clarification, based upon the District Court's inadvertent reading
of the objectionable instruction.
The District Court did give correct instructions to the jury
regarding the effect of a statutory violation. Furthermore,
counsel for defendant clarified the error during closing argument
when he stated that:
A violation of a law in the State of Montana isn't
evidence of negligence. It is neslisence. The
instruction the judge read, if you find from the evidence
that the defendant or the plaintiff violated the law just
read to you, you're instructed that such conduct was
negligence as a matter of law. It is negligence.
[Emphasis added.]
The objectionable instruction was removed from those
instructions which were submitted to the jury and was not sent to
the jury room.
However, on appeal defendant contends that since the
inadvertent instruction was a misstatement of the law, defendant
was prejudiced when it was read and on that basis the verdict for
plaintiff should be reversed.
While it does appear that the defense objected to the
inadvertent reading of the incorrect instruction, it does not
appear from the record that defendant had any objection to the
solution that was arrived at by the District Court for dealing with
the mistake. These circumstances are similar to those presented in
Rasmrtssenv. Sibert (1969), 1 5 3 Mont. 286, 456 P.2d 835, where we held
that the defendant waived any prejudice resulting from the mention
of insurance by failing to request the appropriate relief prior to
entry of the jury verdict. In that case, there was discussion
outside the presence of the jury regarding the remark and no
specific relief was requested by the defendant until after trial.
The district court then granted a new trial based upon the
prejudicial remark. We reversed the district court for the
following reason:
Here there was no objection or motion to strike the
testimony, no request for admonition by the court, no
motion for mistrial, and no request for a corrective jury
instruction. Briefly stated, defendant did nothing. In
so doing defendant took a calculated risk. He knew the
words had been uttered. He knew that no issue had been
raised thereon. He knew that the jury had not been
admonished or instructedto disregard this testimony; and
he knew that his case was being submitted to the jury on
this basis. Under these circumstances, defendant's
failure to object or request corrective action
constituted a waiver of objection on this issue. It
cannot be urged for this first time upon motion for a new
trial following an adverse jury verdict. To hold
otherwise would not only putthe trial court in error on
an issue which had not been presented to it for ruling,
but would permit a litigant to submit his case to the
jury for a possible verdict in his favor, and in the
event he was unsuccessful, would permit him another
determination by another jury. [Citations omitted.]
Rasmussen, 4 5 6 P.2d at 840.
Likewise, in this case, defendant did not move for a mistrial
or other corrective action. He chose to submit his case to the
jury based on the posture that it was in. He is, therefore,
precluded from requesting relief in the nature of a mistrial for
the first time on appeal after receiving a verdict from the jury
that he considers adverse.
We conclude that the District Court did not err when it denied
defendant's motion for judgment notwithstanding the verdict based
upon the inadvertent instruction which was read to the jury.
IV
Was defendant entitled to a new trial based upon improper
closing argument by plaintiff's attorney?
On appeal, defendant contends that by discussing Okland's age
during closing argument, plaintiff's attorney invited the jury to
ignore the law and base its decision on sympathy, rather than the
appropriate standard of care. However, there is no indication in
the record that defendant ever objected to any remarks made by
plaintiff's attorney, nor is there any indication in the record
that defendant ever requested other relief or corrective action
from the District Court as a result of those remarks. For the same
reasons discussed in the previous issue of this opinion, defendant
is not permitted to raise this issue for the first time on appeal.
For the above reasons, the judgment of the District Court is
affirmed.
We concur:
Justices
Justice John Conway Harrison dissenting.
I dissent. On the four issues presented by the appellant on
appeal, I would find as to Issue 1 that there was not substantial
evidence to support the jury's verdict; as to Issue 2, that the
defendant was entitled to a judgment as a matter of law, based on
our decision in Olson v. Parchen (lggl), 249 Mont. 342, 816 P.2d
423; as to Issue 3, that the defendant is entitled to a new trial
because the District Court gave the jury an erroneous instruction;
and as to Issue 4, that the defendant is entitled to a new trial
based on improper closing arguments by the plaintiff's attorney.
As to Issue 1, which I think is clearly the deciding issue in
this matter, the fact that the eight-year-old plaintiff came out of
an alley on his bicycle, not under control, and swung into a lane
of traffic where the defendant was legally driving his automobile,
absolves the defendant of liability. The defendant was in no way
found to be negligent by the officers who investigated this
accident. Evidence introduced by the plaintiff that the defendant
had only recently received his driver's license had absolutely
nothing to do with the cause of this accident.
This accident was observed by an off-duty police officer who
was a passenger in a vehicle proceeding east along a street
parallel to the alley and about half a block from the intersection
of the alley and the street where the accident occurred. He saw
the plaintiff come out of the alley, and observing that the bicycle
appeared to be out of control, he concluded that an accident was
about to occur. Officers responding to the accident were
immediately at the scene. They took statements from everyone
involved and produced not one iota of evidence that shows in any
way that the defendant driver was negligent.
The fact that an accident occurred does not raise an inference
of negligence, nor is it evidence of failure to keep a proper
lookout, if, indeed, that is what happened in this case. Wilson v.
Doe (1987), 228 Mont. 42, 740 P.2d 687.
Numerous times this Court has recognized that it is not
negligence to fail to anticipate that an approaching vehicle with
an obligation to yield will disregard all traffic laws and common
sense and dash out into the path of a driver lawfully and carefully
proceeding in his proper lane of travel. This is what I believe
Olson stands for. See also Yates v. Hedges (1978), 178 Mont. 488,
585 P.2d 1290, and Slagsvold v. Johnson (1975), 168 Mont. 490, 544
P.2d 442. I1Itis not negligence to fail to anticipate injury which
can come about only as a result of the negligence of another.It
Green v. Hagele (l979), 182 Mont. 155, 158, 595 P.2d 1159, 1161.
Here, the jury was so instructed but obviously did not follow that
instruction.
As to Issue 2, my careful reading of the transcript in this
case convinces me that no evidence was produced showing that an act
or omission on the part of the defendant was the proximate cause of
the accident or of the plaintiff's injuries. Therefore I would
hold that under Olson, the District Court erred in not granting the
defendant summary judgment, a directed verdict or judgment
notwithstanding the verdict.
With regard to the third and fourth issues, I am troubled by
the District Court's reading of an improper instruction that may
well have misled the jury and deprived the defendant of a fair
trial, even though the instruction was withdrawn. Withdrawing the
instruction at least called for a warning on the part of the
District Court. I note that the error was called to the judge's
attention.
It is obvious to me that the instruction was intended to allow
the plaintiff to avoid the effect of his negligence per se. In
addition, even though the instruction had been withdrawn, the
prejudice of the original error was magnified when the plaintiff's
counsel, in his closing argument, encouraged the jury to ignore the
plaintiff's negligence. It is my belief that this, in itself,
warranted granting a new trial.
I would reverse and remand to the District Court for a new
trial.
April 15, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
E. Craig Daue, Esq.
Paul C. Meismer, Esq.
GARLINGTON, LOHN, & ROBINSON
P.O. Box 7909
Missoula, MT 59807
EDWARD K. DUCKWORTH
Attorney at Law
104 Highway 93 South
Ronan, MT 59864
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
~e~ufj/ - I