Artz v. Meyers

• Decision Date: 22 December 1999
• Docket Number: No. 20808.,20808.
• Citation: 1999 SD 156,603 N.W.2d 532
• Parties: Edwin G. ARTZ, Plaintiff and Appellant, v. Cindy MEYERS, Defendant and Appellee.
• Court: South Dakota Supreme Court

603 N.W.2d 532

1999 SD 156

Edwin G. ARTZ, Plaintiff and Appellant, v. Cindy MEYERS, Defendant and Appellee.

No. 20808.

Supreme Court of South Dakota.

Considered on Briefs September 13, 1999.

Decided December 22, 1999.

Michael Abourezk and Stephanie Bengford, Abourezk Law Office, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

Curt Ireland, Rapid City, South Dakota, Attorney for defendant and appellee.

AMUNDSON, Justice.

[¶ 1.] Edwin Artz appeals the trial court's submission of the "Legal Excuse" instruction to the jury and denial of Artz's motion for a new trial. We affirm.

FACTS

[¶ 2.] On January 9, 1996, Edwin Artz (Artz) reported for work to the Rapid City bus barn.¹ Artz noticed icy spots on Nemo Road as he proceeded west on his bus route. Approximately nine miles west of Rapid City on Nemo Road, Artz met an eastbound Jeep Grand Cherokee driven by Cindy Meyers (Meyers). Meyers had traveled only one mile from her home when she met Artz's school bus coming around a curve on Nemo Road near the intersection of Nemo Road and Schroeder Road.

[¶ 13.] Artz testified that Meyers' Jeep was "hogging the center of the road" as she came around the corner and suddenly, Meyers' Jeep hit a patch of ice and began to jackknife and weave back and forth in the road. Artz steered his bus onto the shoulder of the road attempting to avoid the collision. Despite Artz's attempts, Meyers' Jeep collided with the front of the school bus.

[¶ 4.] Following the accident, Trooper Don Allen arrived on the scene to investigate the accident. Meyers informed him that she had been driving thirty-five miles per hour. The advisory speed limit sign posted before the curve identified thirty miles per hour as the advisory speed for the curve. Trooper Allen testified that an advisory speed limit is a suggested safe speed limit during normal weather conditions. Trooper Allen testified that Meyers was exceeding the safe speed, but not the speed limit.² Allen also testified that the ice on the curve indicated the path of Meyers' vehicle. The marks on the road indicated that Meyers' vehicle was on the right-hand side of the road when she started to lose control of her vehicle. Finally, Allen testified that the ice was visible on the roadway and that it did not make it impossible to drive around the curve.

[¶ 5.] Artz brought suit against Meyers alleging negligence. At the conclusion of the trial, jury instructions were settled. Artz objected to Meyers' proposed jury instruction on "legal excuse." The trial court submitted this proposed instruction to the jury. The jury returned a verdict for Meyers. Artz's motion for new trial based upon the trial court's err in submitting the legal excuse instruction to the jury was denied.

[¶ 6.] Artz appeals, raising the following issues:

1. Whether the trial court erred in submitting the "legal excuse" instruction to the jury.

2. Whether the trial court abused its discretion in denying plaintiff's motion for a new trial.

DECISION

[¶ 7.] 1. Whether the trial court erred in submitting the "legal excuse" instruction to the jury.

[¶ 8.] The standard of review for a trial court's instruction to the jury is well settled. The standard states:

An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the [defendant's instruction on legal excuse] had [not] been given.

Knudson v. Hess, 1996 SD 137, ¶ 6, 556 N.W.2d 73, 75 (citing Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D.1995) (quoting Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D.1992))). A "party seeking to set aside the verdict because of erroneous instructions must establish that such instructions were prejudicial." Cody v. Edward D. Jones & Co., 502 N.W.2d 558, 563 (S.D.1993) (citing Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 541 (S.D.1986)). Whether submitting the instruction to the jury is prejudicial is considered "from the standpoint of what the trial judge knew from the evidence at the time he gave this instruction." Del Vecchio v. Lund, 293 N.W.2d 474, 476 (S.D.1980). A trial court "is not required to instruct on issues lacking support in the record." Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 32, 557 N.W.2d 748, 758. If an issue before the court is "`supported by competent evidence in the record, the trial court should instruct the jury.'" Id. (quoting Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995)).

[¶ 9.] The court gave instruction number 30, which reads as follows:

Violation of the statutes referenced in instructions 23 and 24 are negligence unless they are legally excused. The Defendant carries the burden of proving by greater convincing force of the evidence that her non compliance was excusable because of an emergency not of her own making.

Under this standard, the defendant must prove:

(1) that an emergency existed,

(2) that she was not engaged in prior conduct which caused or contributed to the emergency, and

(3) that she was unable to comply with the statute because of the emergency.

[¶ 10.] We have previously noted that "where a driver encounters a sudden patch of ice on a roadway, loses control and crosses the centerline, his breach of the statute may be legally excused. It becomes a question for the jury whether the icy condition was foreseeable." Dartt v. Berghorst, 484 N.W.2d 891, 896 (S.D.1992) (citing Bannon, 333 N.W.2d at 470). In cases involving an "unavoidable accident instruction," this Court has held that such an instruction is not appropriate when the occurrence is reasonably foreseeable. Id. (citing Howard v. Sanborn, 483 N.W.2d 796, 798 (S.D.1992); Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 17 (S.D.1988); Plucker v. Kappler, 311 N.W.2d 924, 925 (S.D.1981); Cordell v. Scott, 79 S.D. 316, 323, 111 N.W.2d 594, 598 (1961)).

[¶ 11.] It is well settled that the issue of whether a party acted with reasonable care based upon the weather conditions is a question of fact to be determined by the jury. See Olson v. Judd, 534 N.W.2d 850, 852 (S.D.1995) (noting that "the jury [is] to resolve the conflict in testimony regarding weather and road conditions."); Dartt, 484 N.W.2d at 898 (Sabers, J., dissenting) (opining that "the burden of proving legal excuse is now properly upon Berghorst [the defendant], whether he meets this burden is for the jury"); Cordell, 79 S.D. at 323,111 N.W.2d 594, 598 (noting that "[i]t was for the jury to determine whether or not under all the facts and circumstances defendant should reasonably have anticipated ... ice ... and whether he was exercising due care under the circumstances.").

[¶ 12.] Artz argues the trial court should not have submitted this instruction to the jury because there was no emergency. Artz argues that based upon the testimony of himself and Mr. Niemeier, the witness of the accident, that Nemo Road contained icy spots the morning of the accident and Meyers own testimony about "you're always cautious of ice" unless the weather is beautiful shows that she was knowledgeable about the icy conditions on Nemo Road and that her own conduct contributed to the accident.

[¶ 13.] In support of his contentions, Artz cites Dartt, 484 N.W.2d 891. In Dartt, a truck driver attempted to pass a snowplow, drove into the snow cloud created by the snowplow, and hit the plaintiff's vehicle from behind. Id. at 892. The trial court gave a "legal excuse" instruction to the jury. Id. at 893. After a jury verdict was rendered in defendant's favor, Dartt's motion for judgment notwithstanding the verdict was denied. Id. In reversing the trial court's erroneous denial of Dartt's motion for J.N.O.V., this Court found that "there was not sufficient evidence to support a jury finding that Berghorst was faced with a sudden emergency, the matter should not have been submitted to the jury." Id. at 898. In the case, evidence was presented that Berghorst saw the snow cloud created by the snowplow, he failed to wait and see if visibility improved, he stated that he was not surprised that his visibility was obstructed when he entered the cloud; as such, "it was certainly foreseeable that once Berghorst entered the snow cloud, he would be blinded." Id. at 897. Finally, this Court noted the settled rule that "a party can claim no better version of the facts than he has given in his own testimony." Id.

[¶ 14.] We noted in Dartt, that where "road conditions are generally icy, the driver is deemed to be aware of the poor road conditions. If he fails to drive accordingly and then loses control on ice, breaching the statute, he cannot set up the icy condition as an emergency." Id. at 896 (citing Bannon v. Pfiffner, 333 N.W.2d 464, 469-70 (Iowa 1983)). Artz's counsel would have us rule that, based upon prior history of the icy inclinations of Nemo Road on any day during the winter, icy roads are foreseeable. Such an expansion of the foreseeability test in Dartt, which is requested by Artz, is beyond what this Court intended. We find Dartt is distinguishable from the present case because Dartt lacked sufficient evidence to present the issue of foreseeability to the jury. In the present case, sufficient evidence exists as to whether it was foreseeable that Meyers would encounter ice on Nemo Road.

[¶ 15.] The trial court is "not required to instruct on issues lacking support in the record." Kuper, 1996 SD 145, ¶ 32, 557 N.W.2d at 758. In the case at hand, Artz has the burden of showing that the trial judge's giving of the "legal excuse" jury instruction was prejudicial. Knudson, 1996 SD 137, ¶ 6, 556 N.W.2d at 75. Additionally, Artz must show that the "jury might and probably would have reached a different verdict, one in [his] favor, had the instruction at issue not been given." Id., ¶ 15, 556 N.W.2d at 77 (citing LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 35, 544 N.W.2d 523, 530; Cham...