Harris v. Utah Transit Authority

• Decision Date: 07 October 1983
• Docket Number: No. 17042,17042
• Citation: 671 P.2d 217
• Parties: Matthew C. HARRIS and Gary C. Harris, Plaintiffs and Appellants, v. The UTAH TRANSIT AUTHORITY and Lester Lorenzo Loosemore, Defendants and Respondents.
• Court: Utah Supreme Court

Page 217

671 P.2d 217

Matthew C. HARRIS and Gary C. Harris, Plaintiffs and Appellants, v. The UTAH TRANSIT AUTHORITY and Lester Lorenzo Loosemore Defendants and Respondents.

No. 17042.

Supreme Court of Utah.

Oct. 7, 1983.

Merlin R. Lybbert, Paul C. Droz, Salt Lake City, for plaintiffs and appellants.

Timothy R. Hanson, Salt Lake City, for defendants and respondents.

STEWART, Justice:

Plaintiff Matthew Harris brought this action for personal injuries sustained in a collision between a bus owned and operated by defendant Utah Transit Authority (UTA) and a jeep in which the plaintiff was a passenger. The driver of the bus, Lester Loosemore, is also a defendant. The trial court ruled as a matter of law that Rodney Talbot, the driver of the jeep, was negligent, and the jury found that UTA and Loosemore were not negligent and that Talbot was the sole proximate cause of the accident. Judgment was entered for the defendants, and plaintiffs appeal.

The accident occurred on the morning of March 7, 1977. Talbot, Harris, and Kevin Lucia, another passenger of Talbot, were on an errand for their high school teacher. The collision occurred at the "T"-intersection of 1700 North and Washington Boulevard in North Ogden, Utah. At the point of the collision, Washington Boulevard has four traffic lanes, two north bound and two south bound. The impact occurred in the outside south-bound lane. A bus of defendant UTA stopped to pick up a passenger, and was positioned with its right rear outer wheel four inches off the pavement and was obstructing a portion of the outside travel lane. The day was dry and clear, and the driving conditions were good. The jeep was in good mechanical condition and traveling within the speed limit and with the flow of traffic at between 40 and 50 miles per hour.

Talbot did not recall seeing the bus ahead of him until just before the collision occurred. Upon seeing the bus, he glanced in his rear-view mirror, swerved left and braked to avoid the bus. In the course of this maneuver, the right side of the jeep struck the left rear corner of the bus and pinched Harris' right arm between the bus and the jeep, effectively severing the arm between the shoulder and the elbow.

I. JURY INSTRUCTIONS

A. Proximate Cause and Superseding Cause

Plaintiffs urge that the trial court erred in directing the jury to find as a matter of law that Talbot, the driver of the jeep, was negligent and that if because of his negligence he failed to observe the bus, then he was the sole proximate cause of the accident. Instruction no. 14 stated in part:

[Y]ou are instructed that the driver of the Jeep, Rodney Talbot, was negligent as a matter of law, and if you find that he observed the bus stopped upon the highway, or, under the circumstances should have observed the bus, but because of his negligence failed to do so in time to avoid the accident, then you are instructed that the negligence on his part was the sole proximate cause of the collision.

The instruction directed a verdict on two crucial contested issues of fact and in addition was confusing. First, the instruction directed the jury that Talbot was negligent as a matter of law. In addition, even though the instruction did not specify in what manner Talbot was negligent as a matter of law, it nevertheless stated that: (1) if Talbot knew the bus had stopped or (2) should have observed that the bus was stopped and failed to do so in time to avoid the accident, then Talbot's negligence was the "sole proximate cause of the collision." Second, the instruction in effect directed a verdict on proximate cause apparently on the theory that Talbot's negligence was a superseding cause.

The law of superseding causation is, as a general proposition, more easily stated than applied. A person's negligence is not superseded by the negligence of another if the subsequent negligence of another is foreseeable. This Court in Jensen v. Mountain States Telephone and Telegraph, Co., Utah, 611 P.2d 363 (1980), adopted the rule stated in the Restatement (Second) of Torts § 447 (1965):

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.

The same general rule is stated by Professor Prosser as follows:

The risk created by the defendant may include the intervention of the foreseeable negligence of others.... [T]he standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasioned negligence which is one of the ordinary incidents of human life and therefore to be anticipated.'

Prosser, The Law of Torts § 44 at 274 (4th ed. 1971) (footnotes omitted).

This Court has applied that rule on several occasions. E.g., Jensen v. Mountain States Telephone and Telegraph Co., supra; Watters v. Querry, Utah, 588 P.2d 702 (1978), appeal from proceedings after remand, 626 P.2d 455 (1981). See Skollingsberg v. Brookover, 26 Utah 2d 45, 484 P.2d 1177 (1971). Cf. Collier v. Frerichs, Utah, 626 P.2d 476 (1981). Accord Hennigan v. Atlantic Refining Co., 282 F.Supp. 667 (E.D.Pa.1967); Grainy v. Campbell, 493 Pa. 88, 425 A.2d 379 (1981); Strobel v. Chicago, Rock Island & Pacific R.R. Co., 255 Minn. 201, 96 N.W.2d 195 (1959). See also Annot., Negligence Causing Automobile Accident, or Negligence of Driver Subsequently Approaching Scene of Accident, As Proximate Cause of Injury by or to the Approaching Car or to Its Occupants, 58 A.L.R.2d 270, § 2[b] (1958).

In Watters v. Querry, supra, the defendant Hemingway slowed abruptly on the freeway while changing lanes. Plaintiff Watters slowed to avoid hitting Hemingway, and was in turn rear-ended by defendant Querry. On appeal, this Court held that an instruction, essentially similar to instruction 14 in the instant case, constituted reversible error. The instruction stated that if the driver of a cr should have observed and avoided a dangerous condition created by another car in front of him and did not, that driver's negligence was an " 'independent intervening cause, and, therefore the first driver cannot be a proximate cause of the collision.' " 588 P.2d at 703 (emphasis in original). This Court held:

The more fundamental test is whether under the particular circumstances he should have foreseen that his conduct would have exposed others to an unreasonable risk of harm; and this includes situations where negligent or other wrongful conduct of others should reasonably be anticipated.... The difficulty with the instruction about which plaintiff complains is that, as applied to the instant situation, it would seem to exculpate defendant Hemingway (who created a dangerous situation) if it is found that the defendant Querry (the latter actor) was negligent, whether or not the latter's conduct was foreseeable. If the principle of law just discussed is properly applied to the evidence in this case, it appears to us that there is a legitimate question as to whether a jury could reasonably find that defendant Hemingway, in making the alleged abrupt stop, should have foreseen that, in traffic such as there was on that highway, some momentarily inattentive driver following her would not have been able to react and brake quick enough to avoid collision with her car or the car behind hers.

588 P.2d at 704.

Later, when Watters was again appealed from an order entered after the remand in the first case, we reaffirmed the rule. Citing Jensen v. Mountain States Telephone and Telegraph Co., supra, this Court stated:

[T]he first actor cannot excuse himself from liability arising from his negligent acts merely because the later negligence of another concurs to cause injury, if the later act were a foreseeable event.

626 P.2d at 458.

In the present case, the disputed instruction was erroneous because it failed to submit the proximate cause issue to the jury for determination. Jensen v. Mountain States Telephone and Telegraph Co., supra. In other words, the jury should have decided whether Loosemore stopped the bus in such a way that it was foreseeable that "some momentarily inattentive driver following [him] would not be able to react and brake quick enough to avoid collision." Watters v. Querry, supra, 588 P.2d at 704.

Where the evidence is in dispute, including the inferences from the evidence, the issue should be submitted to the jury. Little America Refining Co. v. Leyba, Utah, 641 P.2d 112 (1982); FMA Acceptance Co. v. Leatherby Insurance Co., Utah, 594 P.2d 1332 (1979). See also Bowen v. Riverton City, Utah, 656 P.2d 434 (1982); Jensen v. Mountain States Telephone and Telegraph Co., Utah, 611 P.2d 363 (1980).

We do not mean to imply that rulings by the court which decide a factual contention as a matter of law are never appropriate. But the right to trial by jury is a basic principle of our system that cannot be allowed to be eroded by improper intrusions on the jury's prerogative. In the instant case, the issue of Talbot's negligence and proximate cause should have gone to the jury. If, as plaintiff contends, Loosemore stopped the bus too rapidly, or failed to drive out of the lane of traffic, or had faulty brake lights, he may have contributed to a rear-end collision by a momentarily inattentive driver, which would not have been so "extraordinary" as to be unforeseeable.

B. The Rule in Hillyard v. Utah By-Products Co.

Instruction no. 14 appears to have been based on the rule stated in ...