Randle v. Allen, 900189

Decision Date08 October 1993
Docket NumberNo. 900189,900189
Citation862 P.2d 1329
PartiesStephen R. RANDLE, individually and as guardian for Nathan Randle, Sarah Randle and Spencer Randle, minor children, Plaintiff and Appellant, v. Carl Hunter ALLEN, an individual, Utah Department of Transportation, State of Utah, and Salt Lake County, Defendants and Appellee.
CourtUtah Supreme Court

Terry M. Plant, Salt Lake City, for Carl Hunter Allen.

Michael L. Deamer, Stephen R. Randle, Salt Lake City, for Stephen R. Randle.

STEWART, Justice:

Plaintiff Stephen R. Randle, individually and as guardian for his minor children, filed this action for the wrongful death of his wife, Rosan Randle, against the Utah Department of Transportation (UDOT), Salt Lake County, and Carl Allen. Randle settled his claims against UDOT and Salt Lake County on the second day of trial and proceeded against Allen. The jury returned a verdict finding Allen not negligent.

On appeal, Randle argues that the trial court erred in granting defendants too many peremptory challenges, in instructing the jury, and in making other evidentiary rulings. We reverse and remand for a new trial.


In the early afternoon of March 13, 1985, Rosan Randle's 1983 Honda Accord collided with defendant Carl Allen's 3/4-ton pickup truck in the intersection of Wasatch Boulevard and Interstate 215, located at approximately 4800 South in Salt Lake County. 1 The posted speed limit for north and southbound traffic on Wasatch Boulevard was 40 miles per hour. Northbound traffic on Wasatch could continue north at the intersection, turn right onto a side street, or veer obliquely to the left onto the I-215 on-ramp. The on-ramp descended off the crest of a small hill, and drivers turning onto the on-ramp could not see the drop-off until after reaching the top of the hill. A stop sign at the intersection required southbound traffic to stop so that northbound traffic could turn left onto I-215.

The accident occurred when Mrs. Randle was driving south on Wasatch and Mr. Allen, who was driving north, turned left toward the I-215 on-ramp. Allen first saw Mrs. Randle's car when she was approximately 150 feet north of the stop sign. He then turned his attention to the drop-off onto I-215 and did not see Mrs. Randle's car again until just before impact. He did not see whether she had stopped at the stop sign. Allen stated at trial that he had signaled to turn left but at his deposition had testified that he could not recall signaling.

Brett Ellis arrived at the intersection just a moment after the accident. He was driving a large truck in the southbound lane of I-215 when, at about 4400 or 4500 South, he noticed a Honda parallel to him traveling south on Wasatch Boulevard. As Ellis arrived at the intersection, he heard a noise like a shotgun blast. He looked to his side and saw the Honda and Allen's truck spinning before coming to rest. At trial, Ellis testified to the relative positions of his vehicle and the Honda just prior to impact. He also did not see whether the Honda had stopped at the stop sign.

Mrs. Randle was unconscious at the scene of the accident and died soon after from her injuries. Her husband, Stephen Randle, individually and as guardian for his three minor children, sued Allen for negligent operation of his vehicle and UDOT and Salt Lake County for negligently designing and maintaining the intersection. Allen counterclaimed for medical expenses, lost wages, and damage to his truck. Randle settled the claims against UDOT and the County on the second day of trial and proceeded against Allen. The jury returned a verdict finding Mrs. Randle eighty percent negligent, UDOT nine percent negligent, the County eleven percent negligent, and Allen not negligent. The jury awarded Allen $5,780.57 for the loss of his truck.

On this appeal, Randle asserts that the trial court erred in (1) granting each of the three defendants four peremptory challenges, (2) giving the jury an unavoidable accident instruction, (3) refusing to instruct the jury that Allen had a duty to yield the right-of-way to Mrs. Randle, (4) allowing one of Allen's witnesses to testify as an expert, and (5) not permitting plaintiff to adduce evidence rebutting one of Allen's expert witnesses. We address each of these challenges in turn.


The trial court permitted each party to exercise three peremptory challenges, the maximum number allowed under Rule 47(e) of the Utah Rules of Civil Procedure. Each party was also allowed to exercise against the entire panel the one additional challenge reserved by Rule 47(b) for alternate jurors. As a result, the three defendants collectively exercised a total of twelve peremptory challenges, and plaintiff exercised four. The jury that sat consisted solely of men.

Randle claims that defendants used their additional peremptory challenges to exclude women from the jury because an all-male jury would tend to be less sympathetic to Mrs. Randle, a female driver, and more sympathetic to Allen, a male. Allen disputes this assertion and argues that an all-male jury might actually be more sympathetic to Randle, a man who has lost his wife.

Rule 47(e) provides, "Each party shall be entitled to three peremptory challenges, except as provided under Subdivisions (b) and (c) of this rule." Subsection (c) states that "where there are several parties on either side, they must join in a challenge before it can be made." Prior to the promulgation of the Utah Rules of Civil Procedure, this Court construed almost identical statutory language to mean that co-parties are not deemed to be on the same side of a lawsuit if their interests are truly adverse. Sutton v. Otis, 68 Utah 85, 141, 249 P. 437, 457-58 (1926). In Sutton, one of the defendants practically admitted liability and cooperated with the plaintiff to establish the liability of the other defendant. In a separate lawsuit, the two defendants sued each other in federal court for damages arising out of the same set of facts. The trial court refused to allow one defendant to exercise a peremptory challenge because the other defendant refused to join in making the challenge. This Court held that it was prejudicial error to require co-parties to exercise their peremptory challenges together when their interests are clearly hostile and adverse. Id.

Allen relies on Sutton and argues that since the defendants in this case had separate counsel and filed separate answers and cross-claims against each other for indemnity or contribution, their interests were adverse. Sutton expressly held, however, that these factors by themselves do not establish the existence of adverse interests for purposes of the rule. Indeed, Sutton stated that extra peremptory challenges should be granted to multiple parties only if there is "a substantial controversy between them respecting the subject-matter of the suit." 68 Utah at 141, 249 P. at 457. Otherwise, parties on the same side of a lawsuit should join in exercising the allowed challenges. Id. Sutton held that a "substantial controversy" did not exist simply because co-parties were uncooperative and attempted to shift liability to the other. Id. at 144, 249 P. at 458.

Some courts have been more liberal and have granted additional peremptory challenges to co-parties simply because their defenses or claims rested on different facts, Lauman v. Lee, 192 Mont. 84, 626 P.2d 830, 835 (1981), or different legal theories, Distad v. Cubin, 633 P.2d 167, 171 (Wyo.1981). That approach, however, would entitle co-defendants to extra peremptory challenges in a majority of multiple-defendant cases, thereby imposing a significant disadvantage on plaintiffs. Other jurisdictions have offset the advantage of giving co-parties extra challenges by giving the trial court discretion to adjust the number of challenges given to the other side. Goldstein v. Kelleher, 728 F.2d 32, 37 (1st Cir.1984) (decided under 28 U.S.C. § 1870); Schultz v. Gilbert, 300 Ill.App. 417, 20 N.E.2d 884, 885-86 (1939); see also Ellenbecker v. Volin, 75 S.D. 604, 71 N.W.2d 208, 209 (1955). We do not find that degree of discretion built into subsection (c) of Rule 47.

Given the lack of discretionary language in Rule 47, we believe, in accord with Sutton, that extra peremptory challenges should be allowed only when a "substantial controversy" exists between the co-parties. While there may be some unfairness in requiring hostile co-parties to join in making their peremptory challenges, granting co-parties on one side of a lawsuit additional challenges places the opposing side at a disadvantage, particularly when, as here, there is a large disparity in the number of challenges allowed each side. See Hunsaker v. Bozeman Deaconess Found., 179 Mont. 305, 588 P.2d 493, 501 (1978). To avoid favoring one side of a lawsuit over another, a trial judge must carefully appraise the degree of adverseness among co-parties and determine whether that adverseness truly warrants giving that side more challenges than the other.

In our view, a "substantial controversy" exists when a party on one side of a lawsuit has a cross-claim against a co-party that constitutes, in effect, a separate, distinct lawsuit from the action existing between the plaintiffs and defendants. When, however, a cross-claim is merely a derivative of the original action, such as a cross-claim for indemnification or contribution, a "substantial controversy" does not exist for the purposes of Rule 47.

In the instant case, an actual independent lawsuit existed between Allen and the two governmental defendants. Allen cross-claimed against UDOT and the County, alleging, as had Randle, that the negligent design and maintenance of the intersection proximately caused his injuries. Allen therefore not only had to defend against Randle's claim, but he also had to establish the liability of both UDOT and the County to him. Thus, Allen's interest in choosing jurors aligned him with both plaintiff and the other def...

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