Kendrick v. Pippin

• Decision Date: 06 August 2009
• Docket Number: No. 08CA1487.,08CA1487.
• Citation: 222 P.3d 380
• Parties: Cheryl A. KENDRICK, Plaintiff-Appellant, v. Holly L. PIPPIN, Defendant-Appellee.
• Court: Colorado Court of Appeals

222 P.3d 380

Cheryl A. KENDRICK, Plaintiff-Appellant, v. Holly L. PIPPIN, Defendant-Appellee.

No. 08CA1487.

Colorado Court of Appeals, Div. VII.

August 6, 2009.

Law Office of Robert A. Garcin, Robert A. Garcin, Loveland, Colorado, for Plaintiff-Appellant.

The Ukasick Law Firm, LLC, Troy A. Ukasick, Loveland, Colorado, for Defendant-Appellee.

Opinion by Judge J. JONES.

This is a personal injury case arising out of an automobile accident. A jury found that defendant, Holly L. Pippin, was not negligent in causing the accident, in which her pickup truck struck the car of plaintiff, Cheryl A. Kendrick. Ms. Kendrick appeals, contending that the district court erred when it (1) gave the jury a "sudden emergency" instruction because there was no competent evidence of a sudden emergency; (2) failed to give the jury a res ipsa loquitur instruction because the manner in which the accident occurred gave rise to a presumption that Ms. Pippin was negligent; (3) denied her motion for a new trial because a juror who was an engineer made calculations regarding speed, distance, and reaction time that she shared with the other jurors during deliberations; and (4) limited voir dire to thirty minutes per side because that amount of time was inadequate to question the seventeen prospective jurors. We perceive no error, and therefore we affirm.

I. Background

The accident occurred on the morning of February 10, 2006, at the intersection of 37th Street and Highway 287 (North Garfield Street) in Loveland. It had been snowing for several hours. Ms. Kendrick was stopped (because of a red light) in the eastbound left turn lane of 37th Street. As Ms. Pippin was driving her pickup truck southbound on Highway 287, approaching 37th Street, she applied her brakes when the traffic signal turned from green to yellow. Her truck began to slide, and Ms. Pippin realized that she would not be able to stop before the signal turned red. In an effort to avoid colliding with any vehicles entering the intersection, she attempted to make a right turn onto westbound 37th Street. She could not complete the turn, however, and her truck went over the 37th Street center median, striking the driver's side of Ms. Kendrick's car.

Ms. Kendrick sued Ms. Pippin for negligence. A jury found that Ms. Kendrick had incurred injuries, damages, or losses, but that Ms. Pippin was not negligent and that Ms. Pippin's negligence, if any, was not a cause of Ms. Kendrick's injuries, damages, or losses.

II. Discussion

A. Sudden Emergency Instruction

Ms. Kendrick contends initially that the district court abused its discretion by instructing the jury on the sudden emergency doctrine. Specifically, she argues that only Ms. Pippin testified that the ice or snow on the road was unexpected, and that this testimony did not amount to competent evidence supporting the sudden emergency instruction.

The court gave the jury the following instruction on sudden emergency:

A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

We review the district court's decision to give a particular jury instruction for an abuse of discretion. Fishman v. Kotts, 179 P.3d 232, 235 (Colo.App.2007). "We will find an abuse of discretion only upon a showing that the court's ruling was manifestly arbitrary, unreasonable, or unfair." City of Brighton v. Palizzi, 214 P.3d 470, 473 (Colo. App.2008).

Under the sudden emergency doctrine, "a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions." Young v. Clark, 814 P.2d 364, 365 (Colo.1991). The existence of such an emergency "is merely a circumstance to be considered in determining whether the actor's conduct was reasonable," and therefore does not preclude a finding that the actor was negligent. Id.; accord Hesse v. McClintic, 176 P.3d 759, 764 (Colo.2008). The questions whether there was a sudden emergency and, if so, whether the actor was negligent are questions of fact to be determined by the fact finder. Hesse, 176 P.3d at 764; Davis v. Cline, 177 Colo. 204, 208, 493 P.2d 362, 364 (1972); Stewart v. Stout, 143 Colo. 70, 72, 351 P.2d 847, 848 (1960); Vu v. Fouts, 924 P.2d 1129, 1132 (Colo.App.1996).

A party is entitled to have a sudden emergency instruction submitted to the jury "where competent evidence is presented that [the] party was confronted with a sudden or expected occurrence not of the party's own making." Young, 814 P.2d at 369; Davis, 177 Colo. at 208, 493 P.2d at 364-65; Vu, 924 P.2d at 1132. This is so even where the evidence of a sudden emergency is conflicting. See Hetrick v. Dame, 536 P.2d 1153, 1155 (Colo.App.1975) (not published pursuant to C.A.R. 35(f)).

Contrary to Ms. Kendrick's assertion, there was competent evidence that Ms. Pippin was confronted with a sudden emergency. Ms. Pippin testified that she had lived in Colorado her entire life and had almost thirteen years' worth of experience driving in snow and ice. She traveled the same route to work every day and was familiar with the traffic patterns of that route. Immediately prior to the accident, she had driven four miles through seven or eight intersections without losing control of her vehicle or sliding. She knew that it had been drizzling the night before the accident, but thought that the roads were "pretty clear" until she got to the intersection. She was driving at forty miles per hour, below the posted speed limit of forty-five miles per hour.

In light of Ms. Pippin's testimony, the district court properly instructed the jury on sudden emergency. Cf. Stewart, 143 Colo. at 72, 351 P.2d at 848 (sudden emergency instruction appropriate where both parties came upon a patch of ice on a curve of a mountain road and road to that point was dry); Hetrick, 536 P.2d at 1154-56 (sudden emergency instruction appropriate where the defendant's vehicle rear-ended the plaintiff's vehicle on a patch of ice on a slushy and icy road where road was generally snow packed, slushy, and icy in spots). Though Ms. Kendrick contends that Ms. Pippin's testimony was not corroborated by other evidence, she cites no authority for the proposition that such corroboration is required before a sudden emergency instruction may be given. Any discrepancies between Ms. Pippin's testimony and other testimony were for the jury to resolve; such discrepancies, if any, did not dictate that the court refuse to give the jury the instruction.

B. Presumption of Negligence Instruction

Ms. Kendrick next contends that the district court erred when it rejected her proposed jury instruction which, in effect, would have told the jury that Ms. Pippin was presumed to have been negligent.

Ms. Kendrick tendered the following proposed instruction:

"Presumptions" are legal rules based upon experience or public policy and established in the law to help the jury decide the case.

When the driver of a motor vehicle hits another which is stopped, the law presumes that the driver was negligent.

We review the district court's rejection of a tendered jury instruction for an abuse of discretion. Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571, 588-89 (Colo.2004).

Ms. Kendrick's proposed instruction purported to be derived from CJI-Civ. 4th 11:12 and Iacino v. Brown, 121 Colo. 450, 217 P.2d 266 (1950). That pattern instruction, however, by its terms is to be given in cases involving rear-end collisions, as was the case in Iacino. This case did not involve such a collision, and Ms. Kendrick cites no authority for the proposition that a presumption of negligence arises whenever a stationary vehicle is struck by another vehicle.

Indeed, such a presumption does not arise even in every case where a stationary vehicle is struck from behind by another vehicle. In Bettner v. Boring, 764 P.2d 829 (Colo.1988), the defendant's vehicle slid on ice, went off the road, and struck the plaintiff's vehicle, which had also slid off the road a few minutes earlier and was parked in a field, on the left rear corner. The plaintiff's attorney tendered presumption instructions tracking the language of a substantially similar prior version of CJI-Civ. 4th 11:12, but the district court rejected them. Id. at 830-32.

The supreme court held that the district court did not abuse its discretion in rejecting the instructions because (1) an instruction on such a presumption is appropriate only where both vehicles were located on the road or on the shoulder, were in relatively close proximity to each other, and were facing the same direction, and (2) a cause other than the defendant's negligence—specifically, the unexpected condition of the road—was not sufficiently eliminated by the evidence. Id. at 832-35 & n. 4.

The two automobile accident cases which Ms. Kendrick cites in support of her argument, Trione v. Mike Wallen Standard, Inc., 902 P.2d 454 (Colo.App.1995), and Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499 (1959), are distinguishable. In Trione, a vehicle being towed by a tow truck swerved into oncoming traffic. In Eddy, the defendant's vehicle's brakes had failed because the defendant had failed to maintain them. The facts of those cases are not analogous to those here.

Much more on point is Devenyns v. Hartig, 983 P.2d 63 (Colo.App.1998). The plaintiff and the defendant were traveling on the same road, in the same direction. The defendant's vehicle, which was in front of the plaintiff's vehicle, spun on ice, causing it to be facing the plaintiff's vehicle, which then struck the defendant's vehicle. Id. at 66. The plaintiff's attorney tendered an instruction which would have told the jury the defendant was presumed negligent because her vehicle was on the wrong side of the road when the plaintiff's vehicle struck it. (The...