Robinson v. Westover

• Citation: 620 P.2d 1096,101 Idaho 766
• Decision Date: 12 November 1980
• Docket Number: No. 13211,13211
• Parties: Jerry ROBINSON, Jr., a minor, by and through his next friend, Jerry Robinson and Doris Robinson, husband and wife, Plaintiffs-Appellants, v. Gary Lee WESTOVER and Mary Lou Westover, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 1096

620 P.2d 1096

101 Idaho 766

Jerry ROBINSON, Jr., a minor, by and through his next friend, Jerry Robinson and Doris Robinson, husband and wife, Plaintiffs-Appellants, v. Gary Lee WESTOVER and Mary Lou Westover, Defendants-Respondents.

No. 13211.

Supreme Court of Idaho.

Nov. 12, 1980.

Rehearing Denied Dec. 30, 1980.

R. C. Stone of Parsons, Smith & Stone, Burley, for plaintiffs-appellants.

Bert Larson of Parry, Robertson, Daly & Larson, Twin Falls, T. H. Church of Church, Church, Snow & Tuft, Burley, for defendants-respondents.

McFADDEN, Justice.

This is an appeal by plaintiff-appellant Jerry Robinson, Jr., acting by and through his parents, from the granting of defendants-respondents' Gary Lee Westover and Mary Lou Westover's motion for summary judgment.

On June 18, 1977, at approximately 5:30 p. m. ¹ an accident occurred on Idaho State Highway 27, approximately five miles north of Oakley, Idaho. Plaintiff-appellant Jerry Robinson, Jr. (Jerry), a seven year old child, was on a motorcycle when he was struck by a Ford Pinto station wagon owned by the Immediately prior to the accident Jerry had been riding his motorcycle while accompanied by his uncle, Rick Robinson, a fourteen year old high school freshman who was riding his own motorcycle. Rick crossed Highway 27 from the private road on which he had been riding to a private driveway belonging to his parents on the other side of the highway. After Rick crossed the highway to the east side, he stopped his own motorcycle and observed Jerry stopping his own Kawasaki motorcycle on the west side of the highway with his front wheel located upon the asphalt but behind the white fog line located at the west side of the highway surface, waiting for traffic to pass. Rick signalled for Jerry to cross the highway, but Jerry stayed where he was. Following this refusal, Rick turned his attention to the approaching traffic and saw the vehicle driven by Gary Westover. He was observing this vehicle at the time of impact and did not continue to observe the location of Jerry. Rick and Gary Westover were well acquainted, as Westover had been Rick's teacher throughout junior high school. Westover was also looking toward Rick up until the time of the accident. Rick was stationed on the left side of the highway and apparently waving at the Westover vehicle. There were no skid marks nor evidence of any evasive action by the Westover vehicle. Jerry suffered grievous injuries as a result of the accident and is currently a paraplegic.

respondents and operated by Gary Westover. It is undisputed that the weather was fair and visibility was good and that there was no obvious obstruction to vision. The two lane highway was in good condition. It is also undisputed that at the moment of impact Westover was operating the vehicle at approximately 55 miles per hour in a zone posted for that speed.

There is some question whether Gary Westover saw Jerry before the impact. In his deposition Westover stated:

"It would be hard to estimate, but at a very close distance, the motorcycle pulled out in front of my car.

"....

"I saw him about the time that-where he was almost directly in front of the car because my eyes were turning back from the left from where Rick was and the Robinson house was and he was coming on from this side, and then I hit him."

The depositions reveal that neither the station wagon nor the motorcycle, had any mechanical defects.

Following the taking of depositions of Jerry Robinson, Jr., Jerry Robinson, Sr., Doris Robinson, Gary Lee Westover, Mary Lou Westover, and Rick Robinson, the respondents moved for summary judgment. The district court granted the motion, stating in part

"The undisputed material facts indicate that there was no obstruction to the vision of the minor plaintiff, that he was able to observe vehicular travel over the highway in question, that he had not crossed the highway at the invitation of his uncle, who was on a motorcycle directly across the road from the minor plaintiff, that he observed, or should have observed the approaching Westover vehicle and remained in his place of safety until he could safely cross the highway. Defendants motion for summary judgment will be granted upon the ground that the negligence of the minor plaintiff was as great or greater than the negligence of the defendant. Plaintiff's complaint will be dismissed with prejudice."

The essential issue on appeal is whether the trial court erred in granting respondent's motion for summary judgment. We hold that the court erred in this respect and reverse the court's order.

Summary judgment can be granted only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(b)(c). Upon motion for summary judgment all doubts are to be resolved against the moving party. I.R.C.P. 56(c); Crane v. Banner, 93 Idaho 69, 72, 455 P.2d 313, 315, 316-17 (1969); Salmon Rivers Sportman Camps, Inc. v. Cessna Aircraft Co., 97 Idaho 348, 353, 544 P.2d 306, 307, 311 (1975). Except in the quite rare situation The above cited cases were decided under the doctrine of contributory negligence. In 1971, Idaho enacted comparative negligence statutes. I.C. § 6-801 (1971 Sess. L. ch. 186 § 1, p. 863). The difficulty in applying summary judgment in an action premised on negligence resulting from the necessity of balancing rights, duties, and conduct are further exacerbated when comparative negligence concepts are considered. Now the question is not just whether the appellant was guilty of contributory negligence but whether as a matter of law his contributory negligence was equal to or greater than the negligence of the other party. This test must be met before summary judgment can be granted. See Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1969).

in which reasonable minds could not reach different conclusions on the issue, issues of proximate cause like negligence and contributory negligence are issues for the jury to resolve. Crane v. Banner, 93 Idaho at 73, 455 P.2d at 319 (1969); Hayward v. Yost, 72 Idaho 415, 422, 242 P.2d 971, 975 (1952).

The instant case does present facts from which an inference of negligence could be legitimately drawn regarding Westover's conduct. It is well settled that "a person operating a motor vehicle has a duty to keep a proper lookout." Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964). In Drury v. Palmer, 84 Idaho 558, 375 P.2d 125 (1962), the court described the scope of that duty as follows:

"Appellant was under the duty to maintain a lookout for other vehicles approaching the intersection. The duty is not merely of looking, but is one of observation, imposing upon a motorist the necessity of being observant as to the traffic and general situation at or in the vicinity of the intersection. He must look in such prudent and careful manner as to enable him to see what a person in the exercise of ordinary care and caution for safety of himself and others would have seen under like circumstances." 84 Idaho at 562, 375 P.2d at 127.

"It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is plainly visible or obviously apparent, and the failure on his part in this regard, without proper justification or reason, makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care." (Citations omitted) 84 Idaho at 564, 375 P.2d at 128.

In Potter v. Mulberry, 100 Idaho 429, 599 P.2d 1000 (1979), this court quoting from Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724 (1960), held that if a motor vehicle-an automobile-is stopped prior to entry onto a through highway and is seen by the driver of a vehicle lawfully approaching, the approaching driver is entitled to assume that the stopped vehicle will yield the right of way. 100 Idaho at 431, 599 P.2d at 1002. From this proposition the court reasoned that the actions of the approaching driver were not the proximate cause of the accident, since it arose from the stopped vehicle's entering the highway in front of the approaching driver's vehicle. The court concluded in Mulberry that the uncontradicted evidence disclosed that the approaching driver had maintained a proper lookout and had observed the stopped vehicle and therefore could properly rely upon the assumption that the stopped vehicle would yield the right of way. Potter v. Mulberry, supra; Cochran v. Hickox, supra. However, in the instant case, the evidence is not undisputed that the defendant, Westover, was maintaining a proper lookout as he approached the defendant's vehicle along the side of the road. Viewing the evidence most favorable to the plaintiff, as we must on summary judgment, the record discloses that even though the plaintiff was stopped on his motorcycle on the edge of the highway in plain view of oncoming traffic, nevertheless the defendant, Westover, in his deposition testified that he did not see the plaintiff until just an instant before the impact. That fact, together with the defendant Westover's testimony that he was looking at the plaintiff's uncle across the street and waiving to him, would justify a jury's conclusion that the defendant Westover We conclude that, on the facts which were before the district court, reasonable minds might very well differ as to whether Westover failed to keep a proper lookout, and if so differ also as to the degree of his negligence, if any. It was established that Jerry was stopped with his motorcycle next to the highway surface for a period of time prior to the accident, and that there were no obstructions to Westover's vision as he approached the point where Jerry was stopped. Notwithstanding this fact, Westover stated that he did not observe Jerry until immediately before the impact.

was not maintaining a proper lookout for vehicles on, near, or entering the highway.

In conclusion, the facts of this case do not present that rare...