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

27 P.3d 1050

175 Or. App. 43

Mayra MAQUIEL, aka Myra Maquiel, Appellant, v. Ryan ADKINS and Mark Adkins, Respondents.

16-98-01612; A105437

Court of Appeals of Oregon.

Argued and Submitted October 25, 2000.

Decided June 27, 2001.

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.

LINDER, J.

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)

(on review of denial of a directed verdict, we consider all the evidence and view it in the light most favorable to the nonmoving party). 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.

Defendant Mark Adkins moved for a directed verdict, arguing that the evidence fails to establish that he should be vicariously liable under the family purpose doctrine. The court denied that motion. At the close of the evidence, plaintiff moved for a partial directed verdict, arguing that defendant was negligent, as a matter of law, because he violated the requirements of ORS 811.585(1) and had failed to present evidence from which a jury could find that his conduct was nevertheless reasonable under the circumstances. The trial court denied that motion as well. Later, the trial court instructed the jury that

"[negligence per se ] consists of the violation of a statute that for the safety or protection of others requires certain conduct or forbids certain conduct.

"When I call your attention to any such statute, a violation of that statute by a party constitutes negligence in and of itself unless you find from all the evidence that such party proved that he was acting as a reasonably prudent person under the circumstances."

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:

"First, the requirement that an issue be presented to the lower tribunal in order for it to be raised on appeal serves to prevent error. If the first tribunal is given the opportunity to make a ruling, its ruling may well be correct. Relatedly, it would be a disservice to the economy of the process to require the lower tribunal to conduct further proceedings in order to rectify an error that it was never given the initial opportunity to avoid.

"The second reason is that requiring a party to present its issues at each adjudicative level is essential to a fair process for the other parties and participants. Generally, the opportunity to respond at the appellate level does not cure the denial of that opportunity in trial court and agency proceedings, where all of the factual and much of the legal development of cases must occur."

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) (describing preservation inquiry as: "Did the trial court have a realistic opportunity to make the right call?").

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...