MAQUIEL v. Adkins
Decision Date | 27 June 2001 |
Citation | 175 Or. App. 43,27 P.3d 1050 |
Parties | Mayra MAQUIEL, aka Myra Maquiel, Appellant, v. Ryan ADKINS and Mark Adkins, Respondents. |
Court | Oregon Court of Appeals |
Marianne Dugan, Eugene, argued the cause for appellant. With her on the briefs was Facaros Dugan Rosas.
John F. Kilcullen, Eugene, argued the cause for respondents. With him on the brief was Brown, Roseta, Long, McConville, Kilcullen & Carlson.
Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.
Argued and Submitted October 25, 2000, Springfield.
This negligence action arose from an accident in which defendants' vehicle rolled into a lake and plaintiff, who was attempting to remove her daughter from the vehicle, was temporarily trapped underwater by the vehicle's door.1 Plaintiff sought to prove that defendant was presumptively negligent under ORS 811.585(1) because he failed to park his vehicle in a manner consistent with the statute's requirements. On appeal, plaintiff challenges the trial court's denial of her motion for a directed verdict, arguing that the evidence established, as a matter of law, that defendant violated the statute and, therefore, was presumptively negligent. Plaintiff also challenges the trial court's instruction that, even if the jury found that defendant violated the statute, it could find that defendant was not negligent if it concluded that he acted reasonably under the circumstances. Defendant Mark Adkins cross-assigns error to the trial court's denial of his motion for a directed verdict. We affirm.
We state the facts in the light most favorable to defendant. See Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984) ( ). In June 1996, plaintiff and her two daughters accompanied defendant and friends to Triangle Lake for recreational boating and fishing. Defendant drove an Isuzu Trooper and pulled a trailer carrying a small boat. Defendant parked the vehicle approximately 20 feet from the lake in a gravel lot that sloped slightly toward the water. The vehicle was left in that location, facing the lake, throughout the outing.
The group of friends spent at least two hours at the lake. At the end of the outing, members of the group carried the boat back to its trailer and began to load the vehicle for departure. Defendant was at the rear of the trailer, changing clothes, and the other members of the party were nearby. Plaintiff, who was loading items into the open back door of the vehicle, told her five-year-old daughter to get into the vehicle because they were about to leave. The child entered through the open driver's-side front door and, two to three seconds later, the vehicle began to roll forward toward the lake.
Plaintiff ran to the front of the vehicle and attempted, unsuccessfully, to stop its movement. The vehicle rolled into the lake and largely submerged before coming to rest partly under a dock. Water pressure popped the windshield out of the vehicle, and the child floated to the surface. Plaintiff, however, was trapped on the lake bottom beneath the open driver's-side door. Another member of the party dived in several times to retrieve her, and she was brought up unconscious after at least two minutes under water. Plaintiff suffered a hypoxic injury to the brain as a result of oxygen deprivation. Upon awakening, she was disoriented and unsteady. Approximately two months later, she began suffering epileptic seizures, allegedly due to the hypoxic injury. Plaintiff brought this action, alleging that defendant was negligent in various respects in parking and leaving the vehicle unattended and that defendant's father was vicariously liable under the family purpose doctrine.2 At trial, defendant testified that, although he learned after the accident that the parking lot was slightly sloped, visually it appeared flat to him when he parked his vehicle there on the day of the accident. He testified that he had not turned the vehicle's wheels to either side and that he did not recall setting the vehicle's parking brake.3 He did, however, place the transmission in first gear to prevent the vehicle from moving or rolling.
The court then instructed the jury as to the substance of ORS 811.585(1) and further instructed that the definition of highway, for purposes of that statute, includes a public parking lot. The jury was given a four-question verdict form. The court instructed the jury that, if it answered the first question in the negative, it should not answer the others. The first question was: "Were defendants negligent in one or more of the ways alleged in plaintiff's complaint and, if so, was such negligence a cause of damage to plaintiff?" The jury answered "no." In light of that answer, the jury did not answer the remaining questions on the verdict form. Consistently with the jury's verdict, the trial court entered judgment in favor of defendants.
On appeal, plaintiff first assigns error to the trial court's denial of her motion for a partial directed verdict on the issue of whether the evidence established conclusively that defendant violated ORS 811.585(1). In general terms, that statute requires that a person who is driving or in charge of a motor vehicle take certain actions to secure the vehicle when it is left "unattended" on a highway, which includes a parking lot.4 Allegedly, defendant violated the statute in two ways: (1) by not setting the vehicle's emergency brake, which the statute requires whenever a vehicle is left unattended; and (2) by not turning the front wheels of his vehicle "to the curb or side of the highway," which the statute requires when an unattended vehicle is left on "any grade." ORS 811.585(1)(a)(B) and (E). On appeal, plaintiff argues that the evidence established conclusively all of the following: that defendant left the vehicle unattended; that he left it on a slope; that he did not turn the vehicle's front wheels; and that he did not set the vehicle's emergency brake.
Defendant responds that plaintiff failed to argue to the trial court that the vehicle was unattended as a matter of law, that the trial court therefore correctly denied plaintiff's motion, and that plaintiff improperly advances that argument for the first time on appeal. We agree. We consistently have emphasized the two fundamental purposes underlying appellate preservation of error requirements:
J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or.App. 565, 568, 889 P.2d 383, rev. den. 321 Or. 47, 892 P.2d 1024 (1995). See also State v. Doern, 156 Or.App. 566, 579, 967 P.2d 1230 (1998), rev. den. 328 Or. 666, 987 P.2d 515 (1999) (Landau, J., dissenting) ( ).
In making the motion below, plaintiff summarily argued that she was entitled to a directed verdict on the issue of whether the statute was violated because defendant admitted that the parking lot was sloped, he admitted that he did not turn the vehicle's wheels to one side, and he did not recall setting the parking brake. Plaintiff did not assert that, as a matter of law, the evidence also established that the vehicle was unattended, as the statute requires. Immediately before plaintiff moved for a partial directed verdict, the parties and the court discussed the instructions that the court would give regarding the statute's requirements. Defendant argued that the jury should decide, among other disputes, whether the vehicle was "unattended" as the statute requires. Plaintiff voiced no disagreement. The court specifically concluded that whether the vehicle was unattended was a question to be decided by the jury. After those discussions of the jury instructions, plaintiff moved for a partial directed verdict and did not assert, as she does now, that the evidence established as a matter of law that the vehicle was unattended. Under the circumstances, plaintiff's...
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Maquiel v. Adkins
...P.3d 974 333 Or. 73 Maquiel v. Adkins. No. S48735. Supreme Court of Oregon. November 27, 2001. Appeal from No. A105437, 175 Or.App. 43, 27 P.3d 1050. Petition for review is ...
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§33.3 Liability Per Se
...such a negligence count. See, e.g., Cervantes v. Mattson, 90 Or App 574, 576, 752 P2d 1293 (1988); Maquiel v. Adkins, 175 Or App 43, 55, 27 P3d 1050 (2001). See also UCJI No. 20.03. NOTE: The Oregon Supreme Court has not expressly addressed whether an appellate court's use of the term negli......