Chambers Through Chambers v. Pierson

• Decision Date: 20 September 1994
• Docket Number: No. 94-055,94-055
• Citation: 266 Mont. 436,880 P.2d 1350
• Parties: Charles Chad CHAMBERS, a minor, through his Guardian Ad Litem, Linda C. CHAMBERS, Plaintiff and Appellant, v. Matthew Robert PIERSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1350

880 P.2d 1350

266 Mont. 436

Charles Chad CHAMBERS, a minor, through his Guardian Ad

Litem, Linda C. CHAMBERS, Plaintiff and Appellant, v. Matthew Robert PIERSON, Defendant and Respondent.

No. 94-055.

Supreme Court of Montana.

Submitted on Briefs June 24, 1994.

Decided Sept. 20, 1994.

Peter M. Kirwan, Kirwan & Barrett, Bozeman, for appellant.

Gene I. Brown and Steve Reida, Landoe, Brown, Planalp & Braaksma, Bozeman, for respondent.

WEBER, Justice.

Plaintiff Charles Chad Chambers appeals the judgment entered for the defendant in the District Court of the Sixth Judicial District, Park County, pursuant to a jury verdict finding the defendant was not negligent when the truck driven by him struck the plaintiff as he rode his bicycle in the crosswalk in front of defendant's truck. We reverse in part and remand for a new trial.

The issues are restated as follows:

I. Did the District Court err in refusing to give plaintiff's proposed Instruction No. 26 concerning defendant's standard of care?

II. Did defense counsel's arguments constitute prejudice and preclude a fair trial?

III. Did the District Court err in refusing to instruct the jury that a child is not held to the same standard of care as an adult?

IV. Did the District Court err by instructing the jury on the legislative recommendation encouraging equipping every bicycle with a flag?

V. Did the combination of errors presented in Issues I through IV constitute reversible error?

VI. Was defendant negligent as a matter of law?

Our decision on Issue I is dispositive of the first five issues in this case. Although Issues II., III., IV. and V. need not be reviewed, Issues III. and IV. are addressed for the benefit of the trial court in a subsequent jury trial. We decline to address Issues II. and V.

On May 22, 1989, 9-year-old Charles Chad Chambers (Chad) was riding his bicycle home from Winans School in Livingston where he attended third grade. The defendant, 15-year-old Matthew Robert Pierson (Matt), was driving a truck after school. Matt had been a licensed driver for 12 days. Fourteen-year-old Wolfgang Schwarz (Wolfgang), a classmate of Matt, was a passenger in Matt's truck.

Matt approached the intersection of 5th and Callender streets driving easterly on Callender Street. Chad approached the same intersection riding his bike on the sidewalk on the west side of 5th Street, heading north. The intersection of 5th and Callender streets is controlled by stop signs on both sides of Callender Street.

Chad testified that he slowed down on his bike prior to entering the crosswalk in front of Matt's truck, and when he saw that the truck was stopped at the intersection behind the white crosswalk lines, he increased his speed and proceeded into the crosswalk to cross Callender Street. Matt testified that he stopped at the stop sign and allowed two cars to go by on 5th Street. Both Matt and Wolfgang testified that they did not see Chad approaching the intersection until he was already in the crosswalk approximately in line with the right front end of the truck. At the time Matt saw the bicyclist in the crosswalk, he had already started driving the truck forward, intending to cross the intersection. Before Matt was able to stop the truck again, he hit Chad with the left front end of his truck. Matt admitted that there was nothing obstructing his view of the sidewalk area from which Chad approached the crosswalk.

Chad testified that he tried to swerve to his right to avoid being hit by the truck. However, he and the bike were knocked down by the impact. Both Matt and Wolfgang got out of the truck to see whether Chad was injured. Although Chad had scraped his arms and elbows, he did not appear to be otherwise injured and again mounted his bike and rode home. After alerting his mother about the accident, Chad was taken to Dr. Priest at the Park Clinic. Dr. Priest treated the visible injuries on Chad's arms.

Although Chad stated that he was alright at the scene of the accident, his mother testified that he was crying when he called her after arriving home. Chad testified that, in addition to skinning and bruising both of his arms, his head was injured either by the truck on impact or by hitting the pavement when he was knocked down by the truck. Several days after the accident, Chad saw Dr. Priest for the head injury because he was sleeping a great deal more than normal, had fallen asleep in school and was experiencing severe headaches.

Prior to the accident, Chad had been diagnosed as having Attention Deficit Disorder (ADD), also known as hyperactivity, and he suffered from migraine headaches. There is no dispute among the experts who testified at trial that Chad suffered a concussion as a result of the accident with the truck and that he subsequently suffered post-concussion syndrome. The parties did dispute the question whether Chad suffers from permanent brain damage from a closed-head injury. The symptoms Chad experienced in the several months after the accident included increased sleeping and exacerbated migraine headaches. Chad was also diagnosed with dyslexia in a subsequent examination by a neuropsychologist in connection with this case.

Issue I.

Did the District Court err in refusing to give plaintiff's Proposed Instruction No. 26 concerning defendant's standard of care?

The District Court refused to give the following instruction proposed by plaintiff to the jury INSTRUCTION NO. 26: Montana law provides that drivers of motor vehicles approaching an intersection have a duty to see what is in plain view and what should be seen in the exercise of reasonable care. A driver must look not only straight ahead but laterally ahead. A person is presumed to see, and therefore know, that which he could see by keeping a lookout. The failure of a motorist approaching a controlled intersection to see what was plainly visible or obviously apparent makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care.

Plaintiff relies on Vender v. Stone (1990), 245 Mont. 428, 434-45, 802 P.2d 606, 610, and Payne v. Sorenson (1979), 183 Mont. 323, 326, 599 P.2d 362, 365, as a source of the instruction. The District Court agreed that Proposed Instruction No. 26 was an accurate statement of the law in Montana, but nonetheless refused to give the instruction because it was not an instruction in Vender, it was not applicable in this case, there was no question of whether the defendant "bolted out into the intersection without stopping" and because it seemed peremptory. We disagree.

Plaintiff contends that the court's refusal to give Proposed Instruction No. 26 is reversible error because it reflects a "critically important" part of plaintiff's theory of the case. According to counsel for plaintiff, the most important parts of Chad's case were the theories that the defendant had a duty to see Chad when he was in plain view on the sidewalk before entering the crosswalk and that the defendant was presumed to see that which could have been seen by keeping a lookout not only straight ahead, but also laterally ahead, including the sidewalk area next to the crosswalk as he drove through the crosswalk. We agree that the instruction embodies an important part of plaintiff's theory of the case.

Defendant argued the factual issue that Chad was not in plain view and, therefore, the plain view presumption has no application to the facts of this case because Chad could not physically be seen on the sidewalk approaching the crosswalk. He also argued that after he had stopped for the stop sign and let cars pass on 5th Street, his duty was to look straight ahead and not laterally ahead down the sidewalk. Defendant contends that there was no evidence that Chad was in plain view and the only evidence introduced was that Chad was somewhere on a sidewalk traveling on 5th Street on his bicycle towards Callender Street. Neither party in this case has cited Okland v. Wolf (1993), 258 Mont. 35, 40-41, 850 P.2d 302, 306, a recent case of this Court in which we cited Payne with approval as follows:

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.... If a motorist does not keep a proper lookout, a jury may find him negligent. (Citations omitted.)

In Okland, the 8-year-old plaintiff lost control of his bicycle and swerved into the street from an alley and collided with a vehicle driven by a 15-year-old boy who had been a licensed driver for approximately one month. Although Okland involved facts from which the jury apportioned negligence equally between the plaintiff and defendant, this Court in part affirmed the jury's finding based on the law as quoted above from Payne and as subsequently restated in Vender.

The record in this case clearly indicates that there was a factual issue as to whether Chad was in plain view. The jury had to determine this key issue of fact and apply the appropriate law to the facts. The jury instructions as given by the court do not cover plaintiff's theory that Chad was in plain view and that Matt had the duty and is presumed to have seen what was plainly visible. It is well established in Montana that a trial court commits reversible error by refusing to instruct the jury on an important part of a party's theory in the case. See, e.g., Smith v. Rorvik (1988), 231 Mont. 85, 93, 751 P.2d 1053, 1058.

While other instructions properly addressed the elements necessary to establish negligence, none of the instructions addressed the plain view presumption, an essential part of plaintiff's case on which the plaintiff was entitled to have an instruction submitted to the jury. We conclude, therefore, that it was...