Okland v. Wolf

• Decision Date: 15 April 1993
• Docket Number: No. 92-219,92-219
• Citation: 850 P.2d 302,258 Mont. 35
• Parties: Debra OKLAND, as Guardian Ad Litem for Bernie Okland, a minor, Plaintiff and Respondent, v. Keith David WOLF, Defendant and Appellant.
• Court: Montana Supreme Court

Page 302

850 P.2d 302

258 Mont. 35

Debra OKLAND, as Guardian Ad Litem for Bernie Okland, a minor, Plaintiff and Respondent, v. Keith David WOLF, Defendant and Appellant.

No. 92-219.

Supreme Court of Montana.

Submitted on Briefs Aug. 20, 1992.

Decided April 15, 1993.

Paul C. Meismer, Anita Harper Poe, Garlington, Lohn & Robinson, Missoula, for defendant and appellant.

Edward K. Duckworth, Ronan, for plaintiff and respondent.

TRIEWEILER, Justice.

Plaintiff brought this action on behalf of her eight-year-old son, Bernie Okland, for injuries sustained when the bicycle he was operating collided with the vehicle being driven by defendant Keith David Wolf. The jury returned a verdict, finding that both Wolf and Okland were negligent and that each was 50 percent responsible for the collision. The jury found that the reasonable amount of Okland's damages was $40,000. Pursuant to the jury's finding of comparative fault, the District Court entered judgment for plaintiff in the amount of $20,000, plus costs and statutory interest from the date of judgment. From this judgment, defendant appeals. We affirm the District Court.

The issues raised by defendant on appeal are:

1. Was there substantial evidence to support the jury's verdict?

2. Was defendant entitled to judgment as a matter of law based on our decision in Olson v. Parchen (1991), 249 Mont. 342, 816 P.2d 423?

3. Was defendant entitled to a new trial because of an erroneous instruction given to the jury by the District Court?

4. Was defendant entitled to a new trial based upon improper closing argument by plaintiff's attorney?

FACTUAL BACKGROUND

On July 3, 1990, eight-year-old Bernie Okland was operating his bicycle in a westerly direction in the alley between 13th Avenue and 12th Avenue in Polson. As he approached the alley's intersection with 7th Street, he intended to make a right-hand turn and proceed in a northerly direction. However, he was traveling too fast, could not control his bicycle, and swerved into the southbound lane, where he collided with defendant Keith David Wolf's vehicle.

Defendant was 15 years old at the time of his collision with Okland. He had received his driver's license 30 days prior to the accident. Immediately before the collision, he was proceeding in a southerly direction on 7th Street and conversing with his friend, who was a passenger in the vehicle. According to all witnesses, he was operating his vehicle at a speed of between 20 and 25 miles an hour, which was within the legal speed limit. He testified that he did not observe Okland until an instant before the collision. There was no evidence that defendant applied his brakes or swerved to take evasive action prior to the collision.

As a result of Okland's collision with defendant, he sustained physical injuries and incurred medical expenses.

On January 10, 1991, plaintiff filed an amended complaint alleging that the collision in which her son was injured was caused by defendant's negligence. In his answer, defendant admitted that the collision occurred, but denied that it was his fault and alleged that it was caused entirely by the negligence of Okland.

The principals involved in the collision were deposed, as were the investigating officer and an off-duty officer who witnessed the collision. Based on the testimony of these witnesses, defendant moved the District Court prior to trial to enter summary judgment holding that as a matter of law the collision in which Okland was injured was caused solely by his own negligence. That motion was denied by the District Court, and this case proceeded to trial before a jury of 12 people on December 18, 1991. On December 19, the jury returned its verdict, finding both parties negligent and apportioning responsibility for the collision equally between them. The jury found that the total amount of damage sustained by Okland as a result of his collision with defendant was $40,000.

Further facts will be discussed as necessary in the discussion of the issues raised by defendant.

I

Was there substantial evidence to support the jury's verdict?

Defendant contends that the District Court erred when it denied his motions for summary judgment, a directed verdict, and judgment notwithstanding the verdict.

In reviewing a denial of a motion for summary judgment, our scope of review is basically the same as when reviewing denial of defendant's motion for a directed verdict. Doll v. Major Muffler Centers, Inc. (1984), 208 Mont. 401, 416, 687 P.2d 48, 56.

Our scope of review from denial of a motion for a directed verdict is the same as from denial of a motion for judgment notwithstanding the verdict. Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 274, 824 P.2d 263, 267.

In Nelson, we explained the scope of review from an order denying a motion for judgment notwithstanding the verdict as follows:

In considering a motion for judgment notwithstanding the verdict, the court must view all of the evidence in a light most favorable to the non-moving party. Nicholson v. United Pacific Insurance Company (1985), 219 Mont. 32, 710 P.2d 1342. The motion may only be granted if it appears that the non-moving party cannot recover upon any view of the evidence, including legitimate inferences to be drawn from it. Larson v. K-Mart Corporation (1990), 241 Mont. 428, 787 P.2d 361.

Nelson, 824 P.2d at 265.

In Simchuk v. Angel Island Community Association (1992), 253 Mont. 221, 228-29, 833 P.2d 158, 162-63, we stated:

We recently discussed our function in reviewing jury verdicts. See Silvis v. Hobbs (Mont.1992), 824 P.2d 1013, 49 St.Rep. 62. It is not the function of this Court to agree or disagree with the jury's verdict. Our function is to determine whether substantial evidence existed to support the verdict. In our examination, we review the facts in the light most favorable to the prevailing parties. If conflicting evidence exists, the credibility and weight given to the evidence is in the jury's province and we will not disturb the jury's findings unless they are inherently impossible to believe. Silvis, 824 P.2d at 1015-16, 49 St.Rep. at 63-64. Our job is complete once we find substantial evidence in the record to support the jury's conclusion.

With that scope of review in mind, we conclude that the following substantial evidence supports the jury's verdict:

The street on which this accident occurred was the main artery from downtown Polson to the location of defendant's residence. Prior to the date on which the accident occurred, defendant had passed the intersection of the alley with 7th Street hundreds or thousands of times. The intersection is located in a residential area with homes on both sides of the street. Defendant was aware that it was common for children to be playing and biking in the area. He was also aware that because of the presence of children in the area, it was important to keep a lookout on both sides of the road. He acknowledged that he knew from the driver's education course he had just completed that drivers need to be especially alert for children because they are unpredictable and you never know what they are going to do.

Defendant admitted that as he proceeded south on 7th Street he would have been able to see a substantial part of the alley where Okland was operating his bicycle, but testified that he and the passenger in his vehicle were chatting and that he did not see the bicycle until it was too late to take evasive action. He admitted that if he had looked in the direction of the alley and seen Okland coming, he could have either slowed down, braked, or swerved.

Rick Hunter testified that he is employed as a detective by the Polson Police Department. He was off duty at the time of the accident. However, he witnessed the accident as a passenger in a third vehicle.

The vehicle in which Hunter was traveling was proceeding in an easterly direction on 12th Avenue. His position was about one-half block north of the intersection of the alley and 7th Street. He was significantly further away from the alley than defendant. However, from that vantage point he was able to observe Okland operating his bicycle in a westerly direction in the alley. He noticed that Okland did not have control of his bicycle. The bike was wobbling as if its rider was trying to make a turn, but was unable to do so. He was able to make these observations and conclude that a collision was going to occur from one-half block away. He testified that about two to three seconds passed from the point when he first saw Okland until the impact occurred. He had time to yell to the driver of his vehicle that there was going to be an accident. During that time, he did not see defendant make any effort to swerve. He did not see any brake lights applied, and he did not see any indication that defendant had observed the bicycle.

Hunter also testified that he was familiar with the area where the accident occurred and that it is a thickly populated area where, on a summer evening, it was common to see children on bikes and pedestrians out walking. He testified that a driver in that area should certainly plan on children being present and take appropriate precautions. He stated that when he drives in that area, he scans both sides of the road as a precaution.

Denman Lee, Ph.D., is a physics professor at Montana State University and an accident reconstruction expert. He testified, without objection by defendant, regarding his qualifications. Lee investigated the accident to determine defendant's sight distances as he proceeded in a southerly direction on 7th Street, and he determined how long Okland's bicycle should have been visible to defendant prior to the point where the collision occurred. He testified that, based upon the speed at which he concluded the bicycle was traveling, defendant would have been able to observe the bicycle for at least 4 seconds prior to the collision if he had been driving at a speed of 20 miles per hour,...