Dunleavy v. Miller
| Decision Date | 29 May 1992 |
| Docket Number | 11933,Nos. 11907,s. 11907 |
| Citation | 1992 NMCA 61,862 P.2d 1224,116 N.M. 365 |
| Court | Court of Appeals of New Mexico |
| Parties | Julie DUNLEAVY, Plaintiff-Appellant, v. Stephen A. MILLER, Defendant-Appellee. |
Plaintiff appeals a jury verdict in her favor against defendant for damages resulting from an automobile accident. Plaintiff argues three issues on appeal: the trial court erred in (1) refusing to give a jury instruction on sudden emergency, (2) ruling that plaintiff could not recover costs from defendant because she was not the prevailing party, and (3) awarding defendant all of his costs. We hold that plaintiff was entitled to an instruction on sudden emergency because there was sufficient evidence to support the giving of the instruction under the facts of this appeal. We therefore reverse and remand for a new trial on the issue of liability and damages. We address the trial court's award of costs because the issue will likely recur at trial.
In its verdict, the jury assessed plaintiff's damages at $91,267.30, and apportioned negligence 76% to defendant and 24% to plaintiff under the trial court's comparative negligence instruction. The trial court entered judgment, reducing plaintiff's net award of $69,363.15 ($91,267.30 X .76) by an additional $14,737.93, which represented defendant's costs incurred after defendant made an offer of $70,000.00, inclusive of costs, under SCRA 1986, 1-068 (Rule 68).
Plaintiff appealed the judgment itself in Cause No. 11,907. In Cause No. 11,933, she appealed from a post-trial order denying her motions for a new trial, additur, reconsideration, and objection to costs. This court consolidated the two appeals and directed the parties to brief the issue of whether the trial court's order denying plaintiff's post-trial motions was appealable. The parties agree that the trial court's order denying the motions for a new trial and reconsideration of the judgment are not appealable. See Labansky v. Labansky, 107 N.M. 425, 759 P.2d 1007 (Ct.App.1988); Harrison v. ICX, Illinois-California Express, Inc., 98 N.M. 247, 647 P.2d 880 (Ct.App.1982). Thus, we will not consider these two issues raised in Cause No. 11,933. Because plaintiff did not brief the additur issue, we consider it abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985).
Plaintiff's appeal from the award of costs raised in Cause No. 11,933 is properly before this court. See SCRA 1986, 12-216. Before the entry of judgment, plaintiff objected to defendant's proposed costs both by motion and at the hearing on September 27, 1989. Additionally, plaintiff requested that the trial court award her costs, arguing that she was the prevailing party. We discuss this issue only because it will likely recur at trial. Consequently, we need not consider plaintiff's motions to supplement the record with a letter from the trial judge to counsel, dated October 2, 1989 (letter opinion denying plaintiff's requests for her costs), and with a copy of her cost bill filed pursuant to SCRA 1986, 12-209(C).
In September 1985, plaintiff and defendant were involved in an automobile collision at the intersection of St. Michael's Drive and Pacheco Street in Santa Fe. There are no traffic control signals at that intersection. The speed limit on St. Michael's Drive where the accident occurred is forty five miles per hour. Plaintiff was driving west on St. Michael's Drive. Defendant was driving east on St. Michael's Drive.
Defendant testified that he drove into the left turn bay at the intersection. He slowed to allow one or two cars that were westbound on St. Michael's Drive to pass and then accelerated to about five to ten miles per hour into a left-hand turn onto Pacheco Street across the westbound lanes of St. Michael's Drive. He denied seeing plaintiff's vehicle before the collision. He stated that, from the time he commenced his turn to the time of impact, no more than four or five seconds elapsed.
Officer Rael, a municipal police officer who assisted in the investigation of the accident, testified that the physical evidence, such as skid marks beginning in the middle lane and veering to the right, indicated that plaintiff had been traveling in the middle lane of St. Michael's Drive, that she had hit the brakes of her car, and that she had then veered to the right. He concluded from this evidence that plaintiff had tried to avoid the accident. There was no evidence that defendant braked or took evasive action. Defendant received a traffic citation for failing to yield the right of way. Plaintiff recalls nothing about the accident and was unable to testify about the event. There were no other witnesses to the accident.
At trial, plaintiff's theory of the case was that she had been confronted with a sudden emergency when defendant turned his vehicle into her path of travel. She requested the trial court to give a sudden emergency instruction tracking the language of SCRA 1986, 13-1617 (Repl.1991). The trial court refused the instruction on the grounds that the evidence did not support the giving of a sudden emergency instruction because plaintiff had been unable to testify about the accident and the jury would thus be required to speculate. Plaintiff claims that refusal of the instruction was reversible error warranting the granting of a new trial because New Mexico law requires the giving of the sudden emergency instruction under the facts presented in this appeal. We agree.
A party is entitled to have "an instruction on his theory of a case if it has been properly pled and there is evidence upon which the theory might be supported." McNeely v. Henry, 100 N.M. 794, 800, 676 P.2d 1359, 1365 (Ct.App.1984) (). The narrow issue before us is whether the evidence supported the giving of an instruction on sudden emergency.
Uniform Jury Instruction 13-1617 states:
A person who, without negligence on [his] [her] part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence or the appearance of an imminent danger to [himself] [herself] or another, is not expected nor required to use the same judgment and prudence that is required of [him] [her] in the exercise of ordinary care in calmer and more deliberate moments.
[His] [Her] duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.
If, at that moment, [he] [she] does what appears to [him] [her] to be the best thing to do and if [his] [her] choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions, then [he] [she] has done all that the law requires of [him] [her], even though, in the light of after events, it might appear that a different course would have been better and safer.
Plaintiff relies on Martinez v. Schmick, 90 N.M. 529, 565 P.2d 1046 (Ct.App.1977), and Scofield v. J.W. Jones Constr. Co., 64 N.M. 319, 328 P.2d 389 (1958), to support her argument that she was entitled to the instruction.
In Martinez, plaintiff's vehicle struck the defendant's vehicle while the defendant was making a left turn. The trial court instructed the jury on defendant's theory of the case, which was that plaintiff was contributorily negligent, but it refused to give the sudden emergency instruction. This court held that "the trial court erred, because the facts of this case require the application of the sudden emergency doctrine." Martinez, 90 N.M. at 531, 565 P.2d at 1048 (emphasis added). In Scofield, defendant's truck was struck by plaintiff's car as defendant was turning left. Defendant objected to the trial court's instruction on sudden emergency. The jury was also instructed on defendant's theory of the case, which was that plaintiff was contributorily negligent and had failed to exercise reasonable care to avoid the collision. Our supreme court stated that, because the contributory negligence instruction was given, Scofield, 64 N.M. at 327, 328 P.2d at 394. We believe that the facts of this appeal are indistinguishable from the facts of Martinez and Scofield. This is so even though the comparative negligence doctrine had not been adopted when those cases were decided. See Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981). Instead, the jury in each case had been instructed on contributory negligence. In our view, consideration of the existence of a sudden emergency may affect equally determinations of either contributory negligence or comparative negligence. See Baxter v. Noce, 107 N.M. 48, 752 P.2d 240 (1988) ().
Defendant raises numerous arguments to support the trial court's refusal to instruct on sudden emergency. He first claims that the instruction was not applicable to the facts of this appeal because the evidence was insufficient to warrant the giving of the instruction. Thus, defendant contends, the instruction would require the jury to speculate. We believe the authorities defendant relies on in support of these contentions are distinguishable from the facts of this appeal. Archibeque v. Homrich, 88 N.M. 527, 543 P.2d 820 (1975), for example, involved a one-car accident in which both the driver and passenger died. There were no witnesses to the accident and no physical...
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Dunleavy v. Miller
...sufficient evidence to support Dunleavy's contention that she was entitled to an instruction on sudden emergency, Dunleavy v. Miller, 116 N.M. 365, 862 P.2d 1224 (Ct.App.1992). The Court of Appeals therefore reversed the judgment and remanded the case to the trial court for a new trial on t......
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1998 -NMCA- 86, Gilmore v. Duderstadt
...as a prevailing party, Gilmore was entitled to an award of his costs under Rule 1-054(E) and Rule 1-068. In Dunleavy v. Miller, 116 N.M. 365, 372, 862 P.2d 1224, 1231 (Ct.App.1992), aff'd in part, rev'd in part on other grounds, 116 N.M. 353, 862 P.2d 1212 (1993), we recognized that, under ......