Ebach v. Ralston

Decision Date05 January 1994
Docket NumberNo. 930157,930157
Citation510 N.W.2d 604
PartiesJohn EBACH and Joyce Ebach, Plaintiffs and Appellants, v. Robert R. RALSTON, Defendant and Appellee, and The City of Minot, a Municipal Corporation, Defendant. Civ.
CourtNorth Dakota Supreme Court

Timothy J. Austin (argued), of Kelsch, Kelsch, Ruff & Austin, Mandan, for plaintiffs and appellants.

Robert J. Hovland (argued), of McGee, Hankla, Backes & Wheeler, Ltd., Minot, for defendant and appellee.

MESCHKE, Justice.

John and Joyce Ebach appeal from an order denying their motions for judgment notwithstanding the verdict and for a new trial in their personal injury action against Robert Ralston. We affirm.

The Ebachs sued Ralston and the City of Minot, alleging that John was seriously injured on December 27, 1984, when, after stopping his car for a red light at the intersection of the highway 2-52 bypass and 16th Street Southwest in Minot, he proceeded north on 16th Street through a green light and was hit by a semi-truck that Ralston was driving east through a red light on the bypass. The Ebachs alleged that Ralston negligently operated his truck and that the City's choice of traffic signals at this crossing resulted in a dangerous intersection.

Ralston denied that he was negligent and alleged that, as he approached the red light at the intersection, he unexpectedly hit a slippery spot and was unable to stop his truck. Ralston further alleged that the Ebachs' injuries were the result of the negligence of John and of other parties. The City also denied liability, claiming that the State had sole and exclusive control over the choice of traffic signals at the intersection.

In Ebach v. Ralston, 469 N.W.2d 801 (N.D.1991), we held that, under our statutes dealing with control of state highways within city boundaries, the State had sole control over the choice of traffic signals at this intersection. We thus held that the City owed no duty to the Ebachs and affirmed summary judgment dismissal of their action against the City. A jury subsequently found that Ralston was not negligent, and judgment was entered dismissing the Ebachs' action against him. The trial court thereafter denied the Ebachs' motions for a new trial and for judgment notwithstanding the verdict, and they appealed.

1. Intersection Evidence
A. Traffic controls

The Ebachs concede that Ralston "had a limited right to show whether this intersection was dangerous." See DeLair v. County of LaMoure, 326 N.W.2d 55 (N.D.1982); South v. National R.R. Passenger Corp., 290 N.W.2d 819 (N.D.1980). However, they assert that because the City owed no duty to them and therefore could not be a tortfeasor, the trial court erred in admitting Ralston's evidence about the City's "fault" in the choice of traffic signals at this intersection. They contend that Ralston's evidence blamed the City for the choice of traffic signals at this dangerous intersection and argue that its probative value was substantially outweighed by confusion and prejudice. Ralston responds that the evidence did not specify whether the State or the City was at fault for the choice of signals at this intersection and that, under NDREv 403, the trial court did not abuse its discretion in admitting that evidence.

In Williston Farm Equipment v. Steiger Tractor, 504 N.W.2d 545, 548-49 (N.D.1993), we recently outlined our review of a trial court's determination of relevancy and the admissibility of evidence under NDREv 403:

Relevant evidence means evidence that would reasonably and actually tend to prove or disprove any fact that is of consequence to the determination of an action.... Relevant evidence is generally admissible.... A trial court has discretion to determine whether evidence is relevant, and its decision will not be reversed on appeal absent an abuse of discretion.... Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ... A trial court has discretion to balance the probative value of the proffered evidence against the dangers enumerated in Rule 403, N.D.R.Ev., and we also review that determination under the abuse-of-discretion standard.

(Citations omitted.) These standards apply here.

Under the comparative negligence law in effect at the time of this accident, NDCC 9-10-07, we have approved the apportionment of fault among named defendants and unnamed settling or statutorily immune parties. Hoerr v. Northfield Foundry and Machine Co., 376 N.W.2d 323 (N.D.1985) [apportionment of fault among non-settling tortfeasor, statutorily immune employer, and settling tortfeasors]; Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334 (N.D.1983) [apportionment of fault between non-settling tortfeasor and statutorily immune employer]; Bartels v. City of Williston, 276 N.W.2d 113 (N.D.1979) [apportionment of fault among settling and non-settling tortfeasors]. Under similar comparative negligence statutes in Minnesota and Wisconsin [Bartels ], the fault of settling or immune parties is submitted to the jury. Lines v. Ryan, 272 N.W.2d 896 (Minn.1978); Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis.2d 42, 227 N.W.2d 660 (1975). Evidence of the responsibility or fault of an unnamed or immune tortfeasor is often relevant to the allocation of fault among named tortfeasors.

A majority of this court has held that the State is immune from liability under the doctrine of sovereign immunity. Leadbetter v. Rose, 467 N.W.2d 431 (N.D.1991). Here the challenged evidence depicts the relationship between the State and the City and their roles in the choice of traffic signals at this intersection. That evidence generally indicates that the City resisted the State's recommendation for an arguably safer method of controlling traffic at this intersection. The relationship between the State and the City regarding the choice of signals was interrelated. Despite that interrelationship, the State ultimately controlled the choice of traffic signals, and the City owed no legal duty to the Ebachs. Ebach v. Ralston. However, the Ebachs did not request an instruction explaining that issue to the jury. See NDREv 105. An instruction on that issue might have alleviated the Ebachs' claim of confusion and prejudice. The trial court determined that the evidence was relevant to accurately allocate fault for this accident, and we cannot say that it abused its discretion in admitting that evidence.

B. Other accidents

The Ebachs contend that the trial court erred in admitting statistical evidence of the number of other right angle accidents at this intersection between 1981 and 1987. The Ebachs argue that there was an inadequate foundation to show that those prior and subsequent right angle accidents were substantially similar to this right angle accident.

In South v. National R.R. Passenger Corp., we said that evidence of prior substantially similar near accidents at the same site was admissible to show, among other things, that a dangerous condition existed, and we held that the trial court did not abuse its discretion in admitting evidence of substantially similar prior near accidents at a railroad crossing. See generally Annot., Modern Status of Rules as to Admissibility of Evidence of Prior Accidents or Injuries at Same Place, 21 A.L.R.4th 472 (1983). Evidence of substantially similar subsequent accidents at the same site also may be probative of the condition of the premises at the time of an accident. Burlington Northern Railroad Co. v. Whitt, 575 So.2d 1011 (Ala.1990); Wood v. Walt Disney World Co., 396 So.2d 769 (Fla.Dist.Ct.App.1981); Dudley v. County of Saratoga, 145 A.D.2d 689, 535 N.Y.S.2d 231 (N.Y.App.Div.1988); Wright v. Commonwealth of Pennsylvania, 142 Pa.Cmwlth 91, 596 A.2d 1241 (1991). See 29 Am.Jur.2d Evidence § 309 (1967). Substantially similar prior and subsequent accidents at the same site may be relevant to establish the dangerousness of the premises at the time of an accident.

The trial court refused to allow Ralston to introduce evidence of the number of all accidents at this intersection between 1981 and 1987, and, for purposes of comparative negligence and knowledge of the dangerousness of this intersection, limited admissibility to the number of right angle accidents at this intersection for those years. The court recognized that it was a difficult question, but determined that right angle accidents were "close enough" to this right angle accident. In balancing the probative value of the proffered evidence against the dangers of prejudice and confusion, trial courts are in a better position to determine whether that evidence is substantially similar. Williston Farm Equipment v. Steiger Tractor. We cannot say that the trial court abused its discretion in admitting evidence of the number of right angle accidents at this intersection between 1981 and 1987.

2. Jury Instructions

The Ebachs assert that the trial court erred in instructing the jury. Jury instructions must fairly and adequately inform the jury of the applicable law. Maurer v. Wagner, 509 N.W.2d 258 (N.D.1993). On appeal, we review jury instructions as a whole to determine if they fairly and adequately advise the jury of the law. Id.

A. Sudden Emergency

The Ebachs contend that the trial court erred in instructing the jury on the sudden emergency doctrine:

If a person is suddenly and unexpectedly confronted with an emergency or situation of peril that involves impending danger, or the appearance thereof, to himself or herself or to others and is not created by his or her own fault, he or she is not expected, nor required, to use the same judgment and prudence that is required of him or her in calmer and more deliberate moments. His or her duty is to exercise only the care that a person of ordinary prudence would exercise in the same situation. ...

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