Hansen v. Howard O. Miller, Inc.

• Decision Date: 27 October 1969
• Docket Number: No. 10392,10392
• Citation: 460 P.2d 739,93 Idaho 314
• Parties: Linda HANSEN, by her Guardian Ad Litem, Winona Hansen, Plaintiff-Appellant, v. HOWARD O. MILLER, INC., a corporation, Howard O. Miller, Donald Bliesner and Monty Edwards, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 739

460 P.2d 739

93 Idaho 314

Linda HANSEN, by her Guardian Ad Litem, Winona Hansen, Plaintiff-Appellant, v. HOWARD O. MILLER, INC., a corporation, Howard O. Miller, Donald Bliesner and Monty Edwards, Defendants-Respondents.

No. 10392.

Supreme Court of Idaho.

Oct. 27, 1969.

Derr, Derr & Walters, Boise, and Reiter, Day, Wall & Bricker, Portland, Or., for appellant.

Gee & Hargraves, Pocatello, for respondents Howard O. Miller and Donald Bliesner.

Merrill & Merrill, Pocatello, for respondent Monty Edwards.

DONALDSON, Justice.

This is an automobile negligence action in which Linda Hansen (appellant), a guest passenger, brought suit by her guardian ad litem for personal injuries against her host driver, Monty Edwards, and the owner and driver of the other vehicle involved in the collision, Howard O. Miller and Donald Bliesner, respectively. The action against Howard O. Miller, Inc. was dismissed prior to trial.

The following facts were elicited by an examination of the documents upon which the summary judgment in favor of the defendant Edwards was granted.

On February 3, 1967 at approximately 8:00 P.M., a collision occurred between an automobile and a gasoline tanker trailer at the intersection of South 5th Street and the ramp of the interstate highway just south of Pocatello. The intersection was well lighted. South 5th Street is a four lane divided highway having two southbound and two northbound lanes. The ramp leading off the interstate highway is controlled by a stop sign posted at the intersection of the ramp and South 5th requiring all vehicles to stop before crossing South 5th.

The host driver, headed in a southerly direction on South 5th Street, was traveling at a speed of between 45 and 55 miles per hour and collided with a gasoline tanker trailer. The tanker trailer was in the process of making a left hand turn in order to travel in a northerly direction on South 5th. The driver of the tanker trailer indicated that he stopped at the intersection of the exit ramp and South 5th. The appellant who was riding in the front seat of Edwards' car suffered severe injuries to her arm and also brain damage. Summary judgment was granted in favor of the respondent Monty Edwards by the district court.

We will first consider the question of whether or not the trial court was correct in granting summary judgment with respect to the host driver, Edwards. The summary judgment was based upon the pleadings, an affidavit made by plaintiff's attorney, and the depositions and affidavits made by the parties to the suit and the passengers in the car driven by Edwards. In considering this question this court shall confine itself to these items and shall not consider the transcript of the trial.

In regard to the granting of summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ¹ In applying this criteria to the facts of this case it must be kept in mind that appellant was a guest passenger and had the burden of proving gross negligence against the respondent Edwards. ² In the recent case of Swa v. Farmers Insurance Exchange, Idaho, 460 P.2d 410, filed October 17, 1969, this court considered the meaning of gross negligence as it is used in I.C. § 49-1401 and as discussed in Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966) and in Petersen v. Parry, 92 Idaho 647 at 658, 448 P.2d 653 at 664 (1968). In Swa we approved the test for gross negligence used in Petersen v. Parry, supra, and as set forth in 2 Restatement, Torts, § 500.

'* * * the owner or operator must perform an act or intentionally fail to perform an act which it is his duty to perform, knowing or having reason to know of facts which would lead a reasonable, prudent man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.'

The court then went on and stated that in applying this definition to the facts of any particular case the court should consider (1) The defendant must intentionally do the act or intentionally fail to do the act which involved the risk; (2) The defendant's conduct must involve a high degree of probability that harm will result; (3) It is not necessary that defendant actually knows of the risk; (4) Defendant's actual consciousness of the risk, although not necessary to prove reckless conduct, may be a significant factor in establishing his liability; (5) Inadvertent conduct, without more, will not constitute recklessness or gross negligence; and (6) A series or combination of negligent acts may constitute reckless conduct if taken together they indicate the so-called reckless state of mind.

In applying this test to the facts elicited by the instruments upon which the summary judgment was granted, definite conflict is shown with regard to whether or not the conduct of the respondent Edwards constituted gross negligence; specifically with respect to the speed of the Edwards' vehicle upon passing through the underpass and approaching an intersection, the ability of Edwards to have avoided the collision, and Edwards' attention or lack of it. These issues are merely illustrative and not exhaustive. Other conduct displayed by Edwards may or may not indicate gross negligence. It is not our intention to express any opinion as to the resolution of these issues but we merely hold that where genuine issues of fact are present, a motion for summary judgment should be denied.

Once a question of gross negligence is present, it is proper for the jury to decide it. Hayslip v. George, 92 Idaho 349, 442 P.2d 759 (1968); Smith v. Sharp, 85 Idaho 17, 375 P.2d 184 (1962).

The instruments upon which summary judgment was granted in favor of Edwards do not in our view preclude the issue of gross negligence on the part of Edwards. A conflict in affidavits respecting issues of fact preclude summary judgment. On the contrary these depositions and affidavits raise not only questions of fact but also doubts as to the credibility of witnesses. A motion for summary judgment should be denied if the pleadings, affidavits and depositions raise any question of credibility of witnesses. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960).

Construing the evidence in favor of the party opposing the motion for summary judgment, and giving him the benefit of all favorable inferences which might be drawn from the evidence, we hold that the trial court erred in granting respondents' motion for summary judgment.

We now address ourselves to the appellants' assignments of error allegedly committed by the district court during the course of the trial against the respondents Miller and Bliesner.

At trial, evidence of the facts previously stated were introduced in greater detail and also evidence of the appellant's failure to wear a seat belt and evidence of an extrajudicial experiment were admitted. The jury returned a verdict for the respondents, Howard O. Miller and Donald Bliesner.

The question of whether or not evidence of failure to wear a seat belt is admissible as evidence of contributory negligence has not heretofore been decided in Idaho. However the weight of authority in jurisdictions where the question has been decided holds that such evidence is inadmissible.

'To date most trial courts have refused to allow the proposed defense and two recent appellate court decisions have repudiated it.' Kleist, The Seat Belt Defense-An Exercise in Sophistry, 18 Hastings L.J. 613 at 613 (1967).

The reason advanced for the inadmissibility of such evidence is the lack of connection between failure to wear a seat belt and the occurrence of the accident. Barry v. Coca-Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967). Therefore we decide that the admission of evidence which proved that appellant was not wearing a seat belt at the time of the accident was error. However this error was cured by instruction No. 37 ³ given by the court. Improper admission of evidence will be cured by proper instructions to the jury. Barry v. Arrow Transportation Co., 83 Idaho 41, 358 P.2d 1041 (1960). This instruction did not merely admonish the jury to disregard the testimony but flatly told the jury that plaintiff was not negligent by reason of her failure to wear a seat belt. Only where the evidence is highly prejudicial will no instruction cure the error of its admission. State v. Knutson, 47 Idaho 281, 274 P. 108 (1929). In this case the evidence was not so prejudicial as to require reversal.

Appellant urges that the trial court erred in admitting the testimony of Paul Todd concerning a braking experiment which was performed during the trial of the case. Evidence of an extra-judicial experiment will be excluded unless the conditions under which the experiment was...