Sabell v. Pacific Intermountain Express Co., 74--377

• Decision Date: 22 April 1975
• Docket Number: No. 74--377,74--377
• Citation: 36 Colo.App. 60,536 P.2d 1160
• Parties: Michael J. SABELL, Plaintiff-Appellant, v. PACIFIC INTERMOUNTAIN EXPRESS CO., a corporation, and BN Transport, Inc., a corporation, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1160

536 P.2d 1160

36 Colo.App. 60

Michael J. SABELL, Plaintiff-Appellant, v. PACIFIC INTERMOUNTAIN EXPRESS CO., a corporation, and BN

Transport, Inc., a corporation, Defendants-Appellees.

No. 74--377.

Colorado Court of Appeals, Div. III.

April 22, 1975.

Rehearing Denied May 13, 1975.

Certiorari Denied July 14, 1975.

John H. Williamson, Denver, for plaintiff-appellant.

Dosh, DeMoulin, Anderson & Campbell, William P. DeMoulin, Denver, for defendant-appellee, BN Transport, Inc.

Yegge, Hall & Evans, Eugene O. Daniels, Denver, for defendant-appellee, Pacific Intermountain Express Co.

SMITH, Judge.

This is a negligence action wherein plaintiff, Michael J. Sabell, a Colorado resident, seeks to recover damages for bodily injuries and property damage sustained as the result of a motor vehicle accident which occurred in Iowa. Plaintiff alleges that the accident was caused by the negligence of defendants Pacific Intermountain Express, Co. (P.I.E.) and BN Transport, Inc. Both corporations are resident and authorized to do business in Colorado. A jury trial was held and following the close of plaintiff's case, the trial court granted the motion of both defendants for directed verdicts of dismissal. We affirm the dismissal of BN Transport and reverse the order dismissing the case as to P.I.E.

On the morning of the accident, a semitrailer truck owned and operated by BN Transport slid on an icy portion of the westbound lanes of U.S. Interstate Highway 80 west of Des Moines, Iowa, and overturned, injuring the driver, and subsequently coming to rest in a field some 200 feet north of the edge of the roadway. The condition of the highway was slightly wet but otherwise clear except for an isolated patch of 'black ice' (wet ice which cannot be seen upon approach), and visibility was in no way impaired. Shortly thereafter a semi-trailer truck owned and operated by P.I.E. stopped to assist the BN Transport driver. There is no dispute that it is common practice for truckers to stop and assist one another in this type of situation. The P.E.I. driver parked his vehicle with the tractor and trailer off the roadway, with the exception of the left rear corner of the trailer which extended approximately one foot onto the traveled portion of the highway. The driver of the P.I.E. vehicle set out warning flares behind his truck for a distance of approximately 30 yards.

As westbound plaintiff reached the top of a long hill in this land of gently rolling terrain, he observed the P.I.E. truck approximately one mile ahead along the right side of the highway. He shifted gears, slowing down his semi-trailer truck until he was proceeding at a speed of approximately 30 miles per hour. An automobile was proceeding in the same direction 300 to 400 feet ahead of plaintiff. As the automobile came to a point approximately next to the P.I.E. truck, it encountered the 'black ice' and started to 'fishtail,' crossing the intermittent white lines separating the two westbound lanes. Although plaintiff at that time was not aware of the 'black ice,' the actions of the car ahead caused him to apply his air brakes very gently. At the same time he looked into his right-hand rear view mirror and observed his trailer starting to slide to the right because of the slope of the roadway. In order to correct this sliding, plaintiff pressed on his accelerator. This resulted in the tractor portion of his rig jackknifing to the right in front of the trailer. The momentum of plaintiff's vehicle caused it to slide along the highway in this position until the left front portion of the tractor of the truck collided with the extreme left rear portion of the P.I.E. trailer which was projecting approximately one foot into the right-hand westbound lane.

The evidence disclosed that there was at least 27 feet of unobstructed westbound highway surface between the parked P.I.E. truck and left-hand shoulder of the roadway. This would have allowed plaintiff safe passage past the P.I.E. vehicle had there not been the black ice on the road. Plaintiff testified that since he was unable to stop and because the car in front of him was straddling the middle of the highway, he was unable to pass between the automobile and anything on the shoulder. Plaintiff admitted that he did not observe the BN Transport truck in the field prior to the collision.

The trial court ruled, as a matter of law, that defendants P.I.E. and BN Transport were not guilty of any negligence, and that even if the P.I.E. vehicle extended one foot onto the highway, this was not the proximate cause of the accident. The court concluded that plaintiff's own negligent acts were the primary cause of the accident and thereupon, at the conclusion of plaintiff's case, dismissed the action.

The facts in this case and the arguments of counsel give rise to two 'choice of law' problems: (1) In the determination of whether the conduct of the parties in operating their motor vehicles was negligent in the first instance, should the laws of Iowa or Colorado be applied? (2) If negligence is found to have occurred on the part of one or more of the parties, should the comparative negligence law of Colorado (§ 13--21--1411, C.R.S. 1973) or the contributory negligence doctrine of Iowa determine plaintiff's right to recovery and the amount of damages, if any?

In First National Bank v. Rostek, Colo., 514 P.2d 314, the Colorado Supreme Court abandoned the doctrine of Lex locus delicti as determinative in the application of various statutes and rules in multistate tort controversies, and took an important step forward by adopting the 'significant contacts' choice of law rule. See 1 Restatement (Second) of Conflict of Laws § 145 (1969) (hereinafter the Restatement). The court, in Rostek, indicated a preference for more specific choice of law rules in multistate tort controversies, and, in accordance with that mandate, we apply the specific choice of tort law principles in Restatement § 157 in ascertaining whether Iowa's traffic regulations will apply in determining the standard of care and apply § 164 of the Restatement in determining whether Colorado's comparative negligence statute is applicable in ascertaining whether negligence on the part of plaintiff precludes his recovery in whole or in part. The proper application of both § 157 and § 164 requires, however, the systematic anal ysis of § 6 of the Restatement to determine the relative importance of the 'significant contacts' in § 145. ¹

In Restatement § 145(2), the significant contacts are enumerated which must be considered in choosing which state's law should be applicable:

'(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) The domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.'

The mere fact that the mathematically greater number of these contacts relate to one statement to the other, however, is not the sole, or even the prime, determinant. Each contact must be evaluated and assigned a relative degree of importance with respect to the particular rule of law at issue. See Restatement § 145, comments.

Section 145 requires that in making such an evaluation and in assigning a relative importance to each significant contact, the various factors listed in § 6 of the Restatement must be analyzed. Those factors are:

'(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainly, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.'

These policy considerations vary in importance and in application depending upon the field of law and the particular issue under consideration. See Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664. As to the questions at issue here, the needs of the interstate and international systems are not of great significance. Neither state will be substantially affected by what the other state does, and interstate automobile and transport movement will not be hindered, or particularly influenced, by the choice of law rules we adopt here. Predictability of result and protection of justified expectations are important considerations in transactions of a consensual nature, but are of minor importance in the instant case because they are not generally factors considered by people prior to their utilization of the highways or their involvement in automobile accidents.

As to the consideration of ease in determination and application of law, little significance attaches because the law of either state is simple and easy to apply. Also, it appears that no basic policies underlying the field of negligence law will be substantially affected by our choice of law decisions in the instant case.

Hence, in the case at issue, the remaining two policy factors listed in § 6(b) and (c) of the Restatement assume primary importance in isolating which of the contacts enumerated in § 145 are crucial to the resolution of both 'choice of law' questions presented. See Mitchell v. Craft, 211 So.2d 509 (Miss.). See also Decker v. Fox River Tractor Co., 324 F.Supp. 1089 (E.D.Wis.), and Frummer v. Hilton Hotels International, Inc., 60 Misc.2d 840, 304 N.Y.S.2d 335.

Standard of Care

The interest of a state in having its negligence rules applied in the resolution of a particular issue will depend upon the policy sought to be achieved by that rule and by the relation of the state to the occurrence and the parties. Utilizing the policy factors in § 6(b) and (c) of the Restatement, we recognize that the state of residence of the parties, or the...