Hesse v. McClintic, No. 06SC624.

• Decision Date: 14 January 2008
• Docket Number: No. 06SC624.
• Parties: Donald C. HESSE, II, Petitioner v. Colleen S. McCLINTIC, D.C., Respondent.
• Court: Colorado Supreme Court

176 P.3d 759

Donald C. HESSE, II, Petitioner v. Colleen S. McCLINTIC, D.C., Respondent.

No. 06SC624.

Supreme Court of Colorado, En Banc.

January 14, 2008.

Rehearing Denied February 4, 2008.^*

Campbell Latiolais & Ruebel, P.C., Colin C. Campbell, Casey A. Quillen, Denver, Colorado, Attorneys for Petitioner.

Fogel Keating Wagner Polidori & Shafner, P.C., William L. Keating, Steven R. Polidori, Kristin D. Sanko, Denver, Colorado, Attorneys for Respondent.

Justice EID delivered the Opinion of the Court.

Respondent Colleen McClintic was rearended by Petitioner Donald Hesse when she slowed for bighorn sheep that had entered her lane of travel on the highway. McClintic brought a negligence claim against Hesse stemming from the accident. Hesse raised the defense of comparative negligence, claiming that McClintic was negligent in failing to pull onto the shoulder instead of slowing in the lane of travel. At the close of evidence, McClintic moved for a directed verdict on the issue of her comparative negligence, which the trial court denied. The jury found MeClintic to be thirty percent at fault. The court of appeals reversed the trial court's denial of the directed verdict motion, holding that as a matter of law, McClintic had no duty to pull onto the shoulder when confronted by animals on the road. It further held that as a matter of law, McClintic was confronted with a "sudden emergency" and acted reasonably under the circumstances, thereby precluding a finding of breach of duty.

We now reverse the court of appeals. We hold that a driver is under a duty to drive with reasonable care, which may be violated in some circumstances by not pulling over. We further hold that Hesse presented sufficient evidence that McClintic acted unreasonably by failing to pull over when confronted by sheep on the road. Thus, we hold that the question of comparative negligence was properly submitted to the jury.

I.

On the morning of February 12, 2001, a clear, sunny day, Petitioner Donald Hesse and Respondent Colleen McClintic were traveling in separate cars through the mountains on westbound 1-70. At that location, the highway had a posted speed limit of sixty-five miles per hour and consisted of two travel lanes going in each direction, with paved shoulders on opposite sides of the grassy median and on the far sides of the highway. MeClintic was driving in the right lane at a speed of sixty-five miles per hour when she saw a number of Rocky Mountain bighorn sheep ahead of her, with some standing in her lane of travel and some standing on the shoulder of the highway. She saw a semi-trailer truck on her left, but saw no cars behind the truck. She looked in her rearview mirror and did not see any vehicles behind her. She slowed her car in her lane of travel to a speed of between ten and thirty miles per hour.

Hesse was driving in the left lane behind the semi-trailer truck that was traveling next to McClintic. The truck slowed down, causing Hesse to decrease his speed as well and close the distance between his van and the truck to approximately twenty-five feet. Hesse's vision of the right lane ahead of him was partially obscured by the truck. Shortly thereafter, another vehicle came up closely behind Hesse, and its driver flashed his headlights, indicating a desire to pass. Hesse, seeing no one in the right lane, moved into that lane at a speed of fifty to fifty-five miles per hour. It was only then that he saw McClintic's car ahead of him. Hesse was unable to stop his van before he rear-ended McClintic's vehicle.

McClintic sued Hesse for damages resulting from her injuries sustained in the accident. She claimed that Hesse was negligent in following too closely behind the semi-trailer truck and thereby obscuring his vision of the right lane, making his lane change unsafe. As an affirmative defense, Hesse asserted that McClintic was comparatively negligent in slowing in the lane of travel rather than pulling onto the right shoulder when confronted with the sheep.

At trial, McClintic's expert witness, an accident reconstruction engineer, testified that at a speed of sixty-five miles per hour, McClintic could have seen the sheep from seven hundred to nine hundred feet away, and that she would have had about six to nine seconds to react to the sheep. McClintic testified that the sheep were "pretty far" away, perhaps three hundred feet, when she first saw them, and that she saw them in enough time to come to a stop before striking them, whether she stayed in her lane or moved onto the shoulder. She agreed that any time a motorist nearly stops on an interstate highway when other traffic is traveling at sixty-five miles per hour, there is a risk that another driver may come from behind and hit the slower car. She further testified that in retrospect, it would have been safer for her to pull off the road, rather than remain on the highway. Lastly, she testified that just before the accident, she had her head turned to look at the sheep, rather than focusing on the traffic conditions around her.

At the close of evidence, McClintic moved for a directed verdict that Hesse was one hundred percent negligent, claiming that Hesse had introduced no evidence of McClintic's comparative negligence. The trial court denied the motion and submitted the issues of Hesse's negligence and McClintic's comparative negligence to the jury. The jury awarded McClintic $170,000, but found Hesse to be seventy percent at fault and McClintic to be thirty percent at fault. Accordingly, McClintic's award was reduced by thirty percent to $119,000.¹ McClintic filed a motion for judgment notwithstanding the verdict, which the trial court denied. McClintic then appealed the trial court's denial of her directed verdict motion to the court of appeals.

In McClintic v. Hesse, 151 P.3d 611 (Colo. App.2006), the court of appeals reversed, holding that the trial court erred in submitting the issues to the jury because, as a matter of law, Hesse was solely negligent. Id. at 613. It determined that as a matter of law, McClintic was under no duty to pull onto the shoulder when confronted with animals on the road. Id. at 613-14. It further found as a matter of law that the sheep created a "sudden emergency" and that McClintic exercised the same degree of care that a reasonable person would have exercised under the circumstances. Id. at 614. We granted certiorari in this case to review the court of appeals' ruling.²

II.

Hesse contends that he presented enough evidence of McClintic's comparative negligence to reach the jury on the issue. We agree, and reverse the court of appeals' holding to the contrary. First, we consider the court of appeals' conclusion that McClintic was under no duty to pull over to the side of the road. We hold that, contrary to the court of appeals' analysis, a driver is under a duty to drive with reasonable care, which may be violated in some circumstances by not pulling over. We then consider the court of appeals' conclusion that McClintic was not negligent, as a matter of law, because she acted reasonably when confronted by a sudden emergency by slowing on the highway. We, hold that, again contrary to the court of appeals' analysis, Hesse presented sufficient evidence that McClintic acted unreasonably by failing to pull over when confronted by sheep on the road. Thus, we hold that the question of comparative negligence was properly submitted to the jury.

A.

We begin our review with the question of whether McClintic owed a duty of care under the circumstances. See HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 888 (Colo.2002) (stating that a negligence claim must fail unless a legal duty is owed). The existence and scope of a legal duty is a question of law. See, e.g., Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980).

The question of duty in this case is a relatively straightforward one. McClintic, like all drivers, was under a duty to drive with reasonable care under the circumstances. This is the duty that attaches to every driver when he or she goes on the road, and we have so held for almost half a century. See, e.g., Curtis v. Lawley, 140 Colo. 476, 480, 346 P.2d 579, 581 (1959) ("Notwithstanding the operator of a vehicle over a public road has the right of way over a person entering thereon from a private roadway, he must use his right in a reasonable manner; in other words, it was the duty of both parties to use due care as that term is understood at common law,"); Bird v. Richardson, 140 Colo. 310, 315, 344 P.2d 957, 960 (1959) (holding that the plaintiff was under a duty "to exercise that degree of care to avoid an accident required of a reasonable, prudent individual under the then existing circumstances").³

We reaffirmed this duty to drive with reasonable care under the circumstances most recently in the context of contributory negligence in Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977). In that case, a paving contractor closed two lanes of a four-lane highway for resurfacing and rerouted all traffic to the remaining two lanes, one going in each direction. Id. at 153, 563 P.2d at 941. Unaware that traffic had been re-routed, the driver of the Ringsby vehicle attempted to pass a gasoline tanker in front of him, crossing into the lane with oncoming traffic. Id. Bradfield, who was traveling in the oncoming traffic lane, slowed down and pulled off the road. Id. at 153-54, 563 P.2d at 941. Despite Bradfield's attempt to get out of the way, the Ringsby driver fish-tailed and struck him. Id. at 154, 563 P.2d at 941. Bradfield sued both Ringsby, the owner of the oncoming tractor-trailer which struck him, and Kiewit, the paving contractor.

We affirmed the trial court and court of appeals' ruling that Bradfield was not contributorily negligent as a matter of law for failing to get out of the way, stating:

[R]easonable minds would have to agree that Bradfield did all he was legally...