Bettner v. Boring

• Decision Date: 28 November 1988
• Docket Number: No. 87SC208,87SC208
• Citation: 764 P.2d 829
• Parties: Maurine BETTNER, Petitioner, v. Robert BORING, Respondent.
• Court: Colorado Supreme Court

Page 829

764 P.2d 829

Maurine BETTNER, Petitioner, v. Robert BORING, Respondent.

No. 87SC208.

Supreme Court of Colorado,

En Banc.

Nov. 28, 1988.

Bennett and Hollaway, John F. Bennett, Cuba Y. Hollaway, Colorado Springs, for petitioner.

William M. Lederer, Colorado Springs, for respondent.

VOLLACK, Justice.

In this personal injury action arising from an automobile accident, Maurine Bettner asked this court to review the court of appeals' reversal of the jury's verdict in her favor. The court of appeals ruled in Boring v. Bettner, 739 P.2d 884 (Colo.App.1987), that the trial court committed reversible error when it declined to give the plaintiff's tendered jury instruction on the presumption of negligence arising from a rear-end collision. We granted certiorari and now conclude that the trial court's refusal to give the tendered instruction under the facts of this case did not constitute reversible error. We reverse the court of appeals' ruling and remand the case for reinstatement of the jury's verdict.

I.

The issue on which we granted certiorari is whether the trial court committed reversible error when it declined to instruct the jury that a presumption of negligence arises from a rear-end collision, even though in this case the plaintiff's vehicle was ten feet off the road and was not a factor in the alleged negligence of the defendant. In January 1983 Robert Boring, the respondent before us and the plaintiff below, was driving a 1978 Mustang on an icy portion of Interstate 25 near Pueblo, Colorado. Boring did not own the car he was driving; he had borrowed it from an acquaintance. The testimony at trial established that there was snow and sleet, and that the roads were icy and snowpacked. A semitractor-trailer had turned over and was blocking part of the highway, and emergency vehicles had already responded to that accident. Boring testified that he and the drivers around him attempted to slow down on the icy highway when they came upon the accident and emergency vehicles. In maneuvering between a truck and another car, Boring's vehicle slid and the left door of the Mustang slid against the left rear tire of the truck.

The truck did not stop, but Boring pulled his vehicle off the highway and into a field which he testified was approximately ten feet off the road. An investigating officer's estimate was that Boring's vehicle was stopped twelve to fifteen feet past the paved shoulder, which he estimated to be ten feet wide. Boring stepped out of the car to inspect for damage, determined that there were only a few minor scrape marks, and decided not to report the incident to law enforcement authorities. Boring climbed back into the car and placed his foot on the brake. The automatic transmission was in parking gear and Boring was "about to place the key into the ignition" when he "received an impact which knocked [the vehicle] 15 feet forward." The left rear corner of the Mustang had been struck by a Datsun pickup truck with a camper shell which was being driven by Maurine Bettner, the petitioner here and the defendant below. Boring spoke briefly with Bettner, and they both gave statements to the state trooper who arrived to investigate the accident. The trooper testified that "[t]he whole road was icy" and that there were other "vehicles in the ditch and median strip ... [that] had slid off the road."

The accident occurred around 8:30 a.m. Boring testified at the trial in 1985 that over the course of that day he experienced increasing discomfort in the back of his neck and eventually sought medical treatment. His neck pain became an ongoing condition and Boring was still under medical supervision at the time of trial, two years after the accident.

At the 1985 trial, Boring testified about his involvement in an automobile accident in Louisiana ten years earlier in which he received neck injuries. He testified that as a result of that earlier accident, he suffered neck pain and left arm pain from 1973 until the 1983 accident in Colorado.

Boring filed suit against Bettner for the damages he incurred as a result of the accident. A jury trial was held in January 1985. Boring's counsel tendered the jury instruction which states that negligence is presumed when a motor vehicle is struck from the rear. The trial court declined to give this instruction to the jury because the evidence did not support its use. The jury found no negligence on the part of the defendant and the trial court entered judgment in favor of the defendant, Bettner.

Boring appealed on the issue of the rejected jury instruction. In a published opinion, two members of the court of appeals panel held that the trial court committed reversible error when it refused to give the requested rear-end collision instruction. The dissenting judge maintained that the rear-end collision instruction did not apply to the facts of this case. Bettner filed a petition for certiorari review of the court of appeals' reversal, and we granted certiorari.

II.

Boring's counsel submitted two jury instructions which were both rejected by the trial court. Rejected Instruction Number 1 stated: "If a motor vehicle is struck from the rear, the driver striking the vehicle ahead is negligent." CJI-Civ.2d 11:12 (1980). Rejected Instruction Number 2 stated:

"Presumptions" are rules based upon experience or public policy and established in the law to assist the jury in ascertaining the truth.

In this case the law presumes that the defendant drove her car negligently when she caused it to collide with the rear of the Plaintiff's vehicle.

Unless and until the presumption is outweighed by evidence to the contrary which has been proved by a preponderance of the evidence, you must consider the presumption with the other evidence in arriving at your verdict.

In rejecting the instruction, the court held: "I don't feel that the rear-end instruction is applicable to a vehicle leaving the highway and striking a stationary object, in this case happening to be a car. I think it's not designed for this situation and so I'm not going to give it." ¹

The court of appeals held that it is "illogical to deny this plaintiff the presumption instruction because he was more cautious and did move his vehicle farther from the zone of danger." Boring v. Bettner, 739 P.2d 884, 885 (Colo.App.1987) (emphasis in original). The court of appeals also rejected Bettner's argument that the instruction did not apply because the collision was caused by a sudden emergency. Id.

A.

The rear-end collision jury instruction is derived from our holding in Iacino v. Brown, 121 Colo. 450, 217 P.2d 266 (1950). In Iacino, the plaintiff's vehicle was legally parked on the right side of the street and the plaintiff was sitting inside his car when the defendant drove his vehicle into the rear of the plaintiff's parked car. Brown sued for damages, and this court held:

From the admitted facts, which are that defendant was in control of an automobile which collided with the rear end of plaintiff's automobile without any fault whatever on the part of plaintiff, there is a presumption of negligence sufficient to make a prima facie case. "The thing itself speaks," or the doctrine of res ipsa loquitur applies here, for the simple season [sic] that the plaintiff could not reasonably be expected to account for any cause of the accident not within his knowledge.

Id. at 454, 217 P.2d at 268 (citation omitted). ² When a rear-end collision instruction is given to the jury, the jury is instructed that the presumption is rebuttable. The defendant can rebut the presumption by presenting evidence that his negligence was not the cause of the plaintiff's injuries. Holmes v. Gamble, 655 P.2d 405, 408 (Colo.1982).

The rear-end collision instruction has not been analyzed by this court under the type of facts presented here. The question before us now is whether the court of appeals correctly held that the trial court committed reversible error when it determined that, under these particular facts, the rear-end collision instruction did not apply.

The general rule in cases of rear-end collisions is that the driver of the car that follows and overtakes the car in front is presumed to have been negligent. The rear-end collision instruction has generally been applied, however, in cases where both vehicles involved in the accident were located on the road or on the shoulder, were in relatively close proximity, and were facing the same direction. See, e.g., Bartlett v. Bryant, 166 Colo. 113, 115, 442 P.2d 425, 426 (1968) (plaintiff's vehicle was halted at the end of a line of cars, stopped for a traffic light, when the car behind her failed to stop and struck the rear of plaintiff's vehicle; this was held to establish prima facie evidence of negligence); Iacino, 121 Colo. at 452-53, 217 P.2d at 267-68. Tracy v. Graf, 37 Colo.App. 323, 550 P.2d 886 (1976) (trial court should have given rear-end collision instruction because the left front fender of the defendant's car hit the right rear fender of plaintiff's car which was stopped in the road), rev'd on other grounds, 194 Colo. 1, 3, 568 P.2d 467, 467 (1977) (because the jury found that the defendant was negligent, failure to give the rear-end collision instruction could not have prejudiced the plaintiff).

In deciding whether the rear-end collision instruction applies to the facts and circumstances presented here, we note that other jurisdictions have applied language which limits the use of this rebuttable presumption under some circumstances. The Missouri courts have described the rear-end collision doctrine as

the doctrine or rule of law which recognizes that if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision...