Marshall v. Galvez

• Decision Date: 28 January 1992
• Docket Number: No. C6-91-1309,C6-91-1309
• Citation: 480 N.W.2d 358
• Parties: Robert B. MARSHALL, Respondent, v. Timothy J. GALVEZ, et al., Appellants.
• Court: Minnesota Court of Appeals

Page 358

480 N.W.2d 358

Robert B. MARSHALL, Respondent, v. Timothy J. GALVEZ, et al., Appellants.

No. C6-91-1309.

Court of Appeals of Minnesota.

Jan. 28, 1992.

Syllabus by the Court

1. A directed verdict for the plaintiff in a negligence action should only be given in exceptional cases.

2. Negligence questions are for the jury to determine when a prima facie case of negligence has been shown and the evidence raises questions of fact.

3. The record must contain evidence to support the theory of a jury instruction before the court may give it.

4. The court may give a curative instruction to avoid misleading the jury.

Daniel L. Hull, Vinje Law Office, Fargo, N.D., for appellants.

Kim E. Brust, David R. Bossart, Conmy, Feste, Bossart, Hubbard & Corwin, Ltd., Fargo, N.D., for respondent.

Considered and decided by HUSPENI, P.J., and PETERSON, and FOLEY ^*, JJ.

OPINION

HUSPENI, Judge.

Appellant alleges the trial court erred when it found appellant negligent as a matter of law and directed a verdict for respondent in this personal injury action. We affirm in part, reverse in part and remand.

FACTS

On the afternoon of September 19, 1987, appellant Timothy Galvez was driving northbound on highway I-94; respondent Robert Marshall was driving eastbound on highway I-694. It was raining. As appellant entered the ramp from I-94 to I-694, he slowed down to 40 m.p.h. and then to 20 m.p.h. before he began accelerating to merge into eastbound traffic on I-694. As he attempted to merge, appellant began to skid and lost control of his vehicle. Appellant spun out across the highway, hit the guardrail and collided head-on with respondent who was driving in the left lane of the highway. When respondent saw appellant's vehicle spinning toward him, he took evasive action. He veered left and struck the guardrail before impact with appellant. The parties stipulated that the collision with appellant injured respondent's neck and shoulders. Appellant did not sustain any injury from the accident.

At trial, appellant admitted that but for the fact that he lost control of his vehicle, the accident would not have occurred. He also testified that although his tires were somewhat worn, they did have legal tread on them. Respondent presented extensive testimony regarding his medical history and his injuries from the accident.

At the close of evidence, the trial court directed a verdict finding appellant negligent as a matter of law and the direct cause of the accident. By special verdict, the jury found respondent not negligent, and awarded him $219,552 in damages. Appellant moved for new trial or, in the alternative, remittitur, alleging the trial court erred when it directed the verdict and instructed the jury. The trial court denied that motion and entered judgment.

ISSUES

1. Did the trial court err when it directed a verdict that appellant was negligent as a matter of law?

2. Did the trial court err when it instructed the jury on respondent's "pre-existing injury"?

3. Did the trial court err when it gave a curative instruction?

ANALYSIS

I.

In reviewing a verdict directed by a trial court, an appellate court must consider the record in its entirety, treating as credible the evidence contrary to the verdict and all inferences which may reasonably be drawn from such evidence. A trial court should direct a verdict for the party in whose favor the evidence is overwhelmingly predominant even if there is some evidence for the adverse party.

Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 502 (Minn.App.1990), pet. for rev. denied (Minn. May 11, 1990). In addition, "this court must make an independent determination as to whether the evidence presented at trial was sufficient to present a factual question for the jury." Oswald v. Law, 445 N.W.2d 840, 842 (Minn.App.1989), pet. for rev. denied (Minn. Nov. 15, 1989).

The directed verdict should be reserved for the "exceptional case." Borough v. Duluth, Missabe & Iron Range Ry. Co., 762 F.2d 66, 68 n. 1 (8th Cir.1985). The trial court should direct a verdict only

where evidence so overwhelmingly predominates in favor of a party so as to leave no doubt as to an issue and it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against the evidence.

Alevizos, 452 N.W.2d at 501-02. Except in those cases, the issue of negligence is for the jury. Peterson v. Pawelk, 263 N.W.2d 634, 636 (Minn.1978). For that reason, courts rarely direct verdicts for plaintiffs in negligence cases and generally leave the question to the jury. See, e.g., Stahlberg v. Moe, 283 Minn. 78, 84, 166 N.W.2d 340, 344 (1969) (reversing directed verdict for plaintiff on negligence issue; where more than one explanation for the injury existed and the jury could reasonably have accepted one of them, question of liability is for the jury); Teas v. Minneapolis St. Ry. Co., 244 Minn. 427, 434-35, 70 N.W.2d 358, 363 (1955) (reversing directed verdict for plaintiff; only in "clearest cases" should negligence be determined as a matter of law).

In those rare cases when a directed verdict for plaintiff has been affirmed, the facts have allowed no other result. See, e.g., Buck v. Dibble, 281 N.W.2d 724, 728 (Minn.1979) (failure to yield right of way at city intersection); Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 787 (Minn.1977) (commercial sale of goods; breach of seller's duty to warn); Lee v. Lee, 248 Minn. 496, 499, 80 N.W.2d 529, 533 (1957) (head-on collision due to defendant driving in middle of two-lane road as he went over a hill at full speed).

The conduct at issue here is a driver's loss of control of a motor vehicle. Minnesota courts have held that loss of control or skidding of a vehicle is not, by itself, negligence. Svercl v. Jamison, 252 Minn. 8, 9, 88 N.W.2d 839, 841 (1958); Tuckner v. Chouinard, 407 N.W.2d 723, 726 (Minn.App.1987).

A driver may unavoidably lose control of his vehicle for a number of reasons other than negligence. It is a jury question whether, under the circumstances, respondent's actions constituted negligence.

Tuckner, 407 N.W.2d at 726.

The court has carved out that rule for situations involving deer jumping into oncoming traffic, Tuckner, 407 N.W.2d at 724, sudden patches of ice, Brager v. Coca Cola Bottling Co., 375 N.W.2d 884, 887 (Minn.App.1985), and cases similar to appellant's case, involving wet, slippery roads. Yellow Taxi Co. v. MacMillan, 284 Minn. 531, 532, 169 N.W.2d 8, 9 (1969); Svercl, 252 Minn. at 12, 88 N.W.2d at 841.

We find particularly persuasive the analysis of the Minnesota Supreme Court in Svercl, 252 Minn. at 9, 88 N.W.2d at 841:

[E]vidence of skidding on a slippery road, standing alone, is not enough to establish negligence. To hold otherwise would be to apply the doctrine of res ipsa loquitur in a class of cases where it obviously does not belong. However, in many of the cases of this type, the manner of driving prior to skidding and the control of the car both before and after skidding present a situation where an inference of negligence is permissible.

(Footnote omitted.) This record does not suggest negligent conduct per se. The focal point of the inquiry into appellant's conduct should be those moments immediately prior to the spin out. At trial, appellant testified that he had slowed down to 40 m.p.h. and then to 20 m.p.h. on the ramp. The roads were wet from the rain that day. He testified that as he began to merge into traffic, he began to skid and lost control of his car.

We agree that appellant had the duty to use appropriate care commensurate with the road and driving conditions that day. Although his loss of control raises the inference of negligence, the task of weighing appellant's driving conduct and the weather factors is for the jury. This case does not present the calibre of facts which overwhelmingly preponderate in respondent's favor, such as the facts presented in Nicosia v. Miller, 302 Minn. 533, 534, 224 N.W.2d 147, 148 (1974). There, the court affirmed a directed verdict for plaintiff who incurred injuries as a result of the defendant's negligent driving of a motor boat. Id. In Nicosia, the driver ran the boat aground at full power and struck a motel unit. Id. at 534, 224 N.W.2d at 147. The defendant offered no direct evidence regarding liability or damages. Id. The Nicosia court found:

[T]he evidence relating to defendant operator's causal negligence in the loss of control of the boat so overwhelmingly preponderates in favor of plaintiff as to leave no doubt as to its factual truth.

Id. at 534, 224 N.W.2d at 148.

This issue of causal negligence in the loss of control distinguishes Nicosia from appellant's case. The record here has not established that appellant's conduct prior to the spin out constituted negligence which then caused the spin out, collision, and injury to respondent.

It might also be argued that appellant violated Minn.Stat. Secs. 169.20, subd. 4, 169.201 (1986) because he lost control of his vehicle and failed to yield the right-of-way to respondent on the highway. However, violation of highway traffic regulations (Minn.Stat. ch. 169 (1986)) "shall not be negligence per se but shall be prima facie evidence of negligence only." Minn.Stat. Sec. 169.96 (1986). This statute creates an exception to the general rule that violation of a statute is negligence per se. Janssen v. Neal, 256 N.W.2d 292, 294 n. 1 (Minn.1977).

Once a prima facie case of negligence has been established, the burden of proof shifts to the violator to show excuse or justification for the violation. Borris v. Cox, 245 Minn. 515, 518, 73 N.W.2d 372, 374 (1955); Freude v. Berzins, 379 N.W.2d 174, 176 (Minn.App.1985). If the violator presents evidence which tends to show excuse or justification, the question of whether the violation constitutes negligence is for the jury. Gertken v. Farmers Elevator of Kensington, 411 N.W.2d 550, 554 (Minn.App.1987), pet. for rev. denied (Minn. Oct. 28, 1987)....