Kendrick v. Pippin

• Decision Date: 09 May 2011
• Docket Number: No. 09SC781.,09SC781.
• Citation: 252 P.3d 1052
• Parties: Cheryl A. KENDRICK, Petitionerv.Holly L. PIPPIN, Respondent.
• Court: Colorado Supreme Court

252 P.3d 1052

Cheryl A. KENDRICK, Petitioner

v.Holly L. PIPPIN, Respondent.

No. 09SC781.

Supreme Court of Colorado, En Banc.

May 9, 2011.

Law Office of Robert A. Garcin, Robert A. Garcin, Loveland, Colorado, Attorneys for Petitioner.The Ukasick Law Firm, Troy A. Ukasick, Loveland, Colorado, Attorneys for Respondent.Patterson, Nuss & Seymour, P.C., Franklin D. Patterson, Brian D. Kennedy, Greenwood Village, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.Schoenwald & Thompson LLC, Julia T. Thompson, Denver, Colorado, Ogborn, Summerlin & Ogborn LLC, Thomas D. Neville, Denver, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.

Chief Justice BENDER delivered the Opinion of the Court.

I. Introduction

This case arises out of an automobile accident that occurred in winter driving conditions. At trial, a jury found that the defendant, Holly Pippin, was not negligent in causing the accident in which her vehicle struck that of the plaintiff, Cheryl Kendrick. Kendrick appealed to the court of appeals, asserting that three decisions by the trial court were in error: (1) the decision to instruct the jury on the doctrine of sudden emergency; (2) the decision to reject Kendrick's proposed jury instruction on the doctrine of res ipsa loquitur; and (3) the decision to deny Kendrick's motion for a new trial based on an allegation of juror misconduct. Kendrick v. Pippin, 222 P.3d 380, 383 (Colo.App.2009). The court of appeals affirmed the trial court on all three grounds. Id. at 384–89.

Upon review, we reverse the court of appeals' opinion. While we agree with the court of appeals' decision to affirm the trial court on the issues of res ipsa loquitur and juror misconduct, we hold that the trial court erred by instructing the jury on the doctrine of sudden emergency.

As to the issue of sudden emergency, our law requires a trial court to instruct a jury on the doctrine of sudden emergency when the party seeking that instruction presents competent evidence that the party was confronted with a sudden or unexpected occurrence not of the party's own making. However, a party is not entitled to a sudden emergency instruction if the party fails to present sufficient evidence that the party was confronted with a sudden or unexpected occurrence. Reviewing the record in this case, we find that Pippin's testimony shows that she anticipated that the roads would likely be slick and icy. We therefore conclude that Pippin failed to present competent evidence that she was confronted with sudden or unexpected road conditions. Hence, we hold that the trial court erred when it instructed the jury on the sudden emergency doctrine and reverse the court of appeals on this issue.

As to the second issue, we find that the trial court properly rejected Kendrick's proposed jury instruction on the doctrine of res ipsa loquitur. Our law requires a trial court to instruct the jury on the doctrine of res ipsa loquitur if a plaintiff establishes by a preponderance of the evidence the following three elements: (1) the event is of the kind that ordinarily does not occur in the absence of negligence; (2) responsible causes other than the defendant's negligence are sufficiently eliminated; and (3) the presumed negligence is within the scope of the defendant's duty to the plaintiff. Reviewing the record, we find that Kendrick failed to introduce sufficient evidence to establish the first element of this doctrine. Therefore, we conclude that Kendrick was not entitled to an instruction on res ipsa loquitur.

We also agree with the court of appeals' opinion on the issue of juror misconduct. We conclude that jurors may use their background, including professional and educational experiences, to inform their deliberations so long as they do not introduce legal content or specific factual information learned from outside the record. We hold that, because the juror in this case simply applied her professional experience and her knowledge of mathematics to the evidence admitted at trial, the trial court properly concluded that the jury was not exposed to extraneous prejudicial information.

Consequently, we reverse the judgment of the court of appeals and remand the case to that court to return the case to the trial court for a new trial.

II. Facts and Proceedings Below

The accident occurred on the morning of February 10, 2006, at the intersection of Highway 287 (North Garfield Street) and 37th Street in Loveland. For several hours the night before, it had snowed or drizzled, and snow covered the roads.

Kendrick was stopped at a red light in the eastbound left turn lane of 37th Street. Pippin was driving southbound on Highway 287. Highway 287 consists of four southbound lanes of traffic: the center two lanes are through lanes; the far right lane is a right-turn-only lane; and the far left lane is a left- turn-only lane. Pippin drove in the right through lane, next to the right-turn-only lane. As she approached the intersection with 37th Street, the traffic light turned from green to yellow, and Pippin applied her brakes. When she applied the brakes, Pippin's vehicle began to slide, and she realized that she could not stop her vehicle. To avoid a collision with cars that might begin entering the intersection from 37th Street, Pippin attempted to make an illegal right turn from her lane onto westbound 37th Street instead of continuing in her lane through the intersection. Continuing to slide, Pippin could not complete the turn onto 37th Street, and her vehicle went over the center median, struck a traffic sign, and impacted Kendrick's vehicle, coming to rest against Kendrick's driver's side door.

Kendrick sued Pippin for negligence. At trial, the parties disputed whether the icy conditions at the intersection were unexpected. Pippin testified that she had experience driving in winter conditions, that she knew that it had been drizzling the night before, and that, because of this, she drove in four wheel drive and at forty miles per hour, below the posted speed limit of forty-five. She stated that, prior to reaching the intersection, the roads were not dry but “pretty clear” and that she had driven about four miles and through seven or eight intersections without sliding or losing control of her vehicle.

Contesting Pippin's assertion that the icy conditions at the intersection were unexpected, Kendrick presented testimony from the responding police officer, Officer Roberts, and from her employer, Steven Hendrickson. Officer Roberts testified that, due to the overnight snowfall, the road conditions in the area were generally slushy and icy and that the road conditions at the intersection were not unexpected but that “[t]he conditions were pretty much the same everywhere.” He stated that the intersection was “an average intersection, given the conditions of the snowfall” and that he was not aware of any other accidents at the intersection prior to the parties' collision. Hendrickson supported Officer Roberts's testimony, stating that he drove on the same road as Pippin that morning, that the roads were covered with “an inch or two” of snow, that the roads “were slick if you drove too fast,” and that he encountered no unusual or unexpected patch of ice on the roadway.

Because Pippin contended that she was surprised by the icy conditions at the intersection, she requested the trial court instruct the jury on the sudden emergency doctrine. The trial court approved the instruction and gave the jury the following sudden emergency instruction: “A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.”

Kendrick sought to instruct the jury on the doctrine of res ipsa loquitur and submitted the following proposed instruction, derived from CJI–Civ. 4th 11:12 (2008), to the trial court:

“Presumptions” are legal rules based upon experience or public policy and established in the law to help the jury decide the case.

When the driver of a motor vehicle hits another which is stopped, the law presumes that the driver was negligent.

The trial court rejected the proposed instruction, reasoning that “[t]his fact situation here has no basis, neither in statute [n]or common law which has created a presumption” of negligence.

The jury found that Kendrick incurred injuries, damages, or losses, but that Pippin was not negligent. Kendrick filed a motion for a new trial based on allegations that, during deliberations, the jury foreperson, a licensed engineer, performed calculations regarding Pippin's speed, distance, and reaction time which she shared with the other jurors. In support of the motion, Kendrick offered an affidavit from a jury consultant whom Kendrick had retained to interview the jurors following the verdict. The affidavit stated: (1) the foreperson had informed the other jurors that she was an engineer; (2) the foreperson had provided the consultant with the calculations, but the consultant had not written them down; (3) the foreperson had concluded that Pippin did not have enough time to avoid the collision; and (4) one juror said that the jurors had found the foreperson's calculations helpful. The trial court denied the motion for a new trial, declining to hold a hearing.

Kendrick appealed to the court of appeals, asserting that three decisions by the trial court were in error: (1) the decision to instruct the jury on the doctrine of sudden emergency; (2) the decision to reject Kendrick's proposed jury instruction on the doctrine of res ipsa loquitur; and (3) the decision to deny Kendrick's motion for a new trial based on an allegation of juror misconduct. Kendrick, 222 P.3d at 383.

The court of appeals affirmed the trial court on all three grounds. Id. at 384–89. First, the court of appeals held that Pippin's...