Short v. Spring Creek Ranch, Inc.

• Decision Date: 30 January 1987
• Docket Number: No. 85-241,85-241
• Citation: 731 P.2d 1195
• Parties: Clarence E. SHORT and Janet Short, Appellants (Plaintiffs), v. SPRING CREEK RANCH, INC., and Carroll Esterholt, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1195

731 P.2d 1195

Clarence E. SHORT and Janet Short, Appellants (Plaintiffs), v. SPRING CREEK RANCH, INC., and Carroll Esterholt, Appellees (Defendants).

No. 85-241.

Supreme Court of Wyoming.

Jan. 30, 1987.

Robert W. Horn, Jackson, for appellants.

R. Michael Mullikin, Mullikin, Larson & Swift, Jackson, for appellees.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

In this appeal from an adverse jury verdict in a personal injury action Clarence and Janet Short assert as an initial issue the refusal of the trial court to instruct the jury that violation of a statute regulating traffic constitutes negligence per se, and they argue that an instruction that such a violation is evidence of negligence is improper. The other issue raised by the Shorts is a contention that the trial court committed reversible error when it refused to reread portions of the trial testimony to the jury after a request for such assistance had been made by the jury during the course of its deliberations. We hold that the trial court did not commit error in either respect, and we affirm the judgment of the trial court.

This action was commenced by a complaint filed by the Shorts seeking damages from Spring Creek Ranch, Inc. (Spring Creek) and Carroll Esterholt, an employee of Spring Creek. ¹ The Shorts alleged that Spring Creek had a duty to construct and maintain roadways within the boundaries of its properties and that it was negligent in failing to perform this duty. More specifically, the Shorts alleged that Spring Creek had failed to maintain the roadway and repair defects in it and had failed to properly plow snow off the roadway. The Shorts alleged that the failure to perform these duties caused a collision between the Shorts' vehicle and a snowplow driven by Esterholt resulting in numerous injuries to each of the appellants. Esterholt was charged with negligence in his operation of the snowplow. Spring Creek and Esterholt contended that any injuries suffered by the Shorts were attributable to the negligence of Clarence Short which was alleged to be at least equal to or greater than the negligence of Spring Creek and Esterholt. In its verdict the jury apportioned negligence as 50 per cent to the Shorts and 50 per cent to Spring Creek and Esterholt. Apparently there was no contention that Janet Short was not bound by any negligence of Clarence. Following the verdict a judgment was entered that the Shorts take nothing by virtue of their claims. Their appeal is taken from that judgment.

The Shorts have not provided a statement of issues on appeal in their brief as required by Rule 5.01, W.R.A.P. They have set forth two arguments which articulate the issues in the following language:

"Where there is evidence produced at trial from which a jury could conclude that there has been a violation of a statute concerning operation of a motor vehicle should the trial court adopt the legislative standard of care and instruct the jury that such violation is negligence per se?

"May the trial court properly refuse the request of a jury which, during deliberation, asks that specific critical trial testimony be reread to them?"

The statement of the issues submitted by the appellees is:

"A. Whether the trial judge properly refused appellant's Proposed Instruction No. 3.

"B. Whether the trial judge properly refused to rehash testimony for the jury after the jury retired for deliberation."

In submitting the case to the jury the trial court instructed:

"Violation of a statute is evidence of negligence. If you determine that a party violated a statute on the occasion in question and that the violation was a proximate cause of the occurrence, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was negligent at the time of the occurrence."

The Shorts' initial contention is that this instruction is erroneous. They rely on Distad v. Cubin, Wyo., 633 P.2d 167 (1981), and the instruction which the Shorts submitted in this regard reads:

"Now these statutes were passed for the protection of the driving public. Each of the statutes establishes a standard of conduct that must be met by each and every driver of a motor vehicle for the safety and protection of other users of the road.

"If you find, from a consideration of all the evidence before you, that one or more of these statutes were violated then you can conclude that the standard of conduct established by that statute was not met.

"Violation of one or more of these statutes under the circumstances of this case is negligence per se. Distad v. Cubin, 633 P.2d 167 (Wyo.1981); Restatement, Torts 2d, §§ 286, 287, 288, 288A, 288B and 288C.

"If you find that either Defendant violated any of the statutes that I have read to you in these instructions and that the violation was a proximate cause of Plaintiff Lee Short and Janet Short's injuries, then you must find for the Plaintiffs on the issue of liability and proceed to assess damages in accordance with my instructions to you."

The appellants read far too much into this court's opinion in Distad v. Cubin, supra. That decision cannot be interpreted as the adoption of a negligence per se standard by this court. We there held that the trial court did not err in refusing to instruct the jury that violations of state or federal regulations constituted negligence per se, and we approved an instruction to the effect that the failure to comply with such regulations is evidence of negligence. We did adopt the view of the Restatement (Second) of Torts (1965) [hereinafter cited as Restatement 2d].

"We accordingly conclude that, as to questions of negligence, the effect of a violation of statute, ordinance, or regulation which defines a standard of conduct will be resolved under the Restatement, Torts 2d. The pertinent sections of the Restatement, Torts 2d, include §§ 286, 287, 288, 288A, 288B, and 288C." Distad v. Cubin, supra, 633 P.2d at 175.

If we were to resolve this case in accordance with the provisions of the Restatement 2d, we would focus first upon § 286 which provides:

"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

"(a) to protect a class of persons which includes the one whose interest is invaded, and

"(b) to protect the particular interest which is invaded, and

"(c) to protect that interest against the kind of harm which has resulted, and

"(d) to protect that interest against the particular hazard from which the harm results." (Emphasis added).

We recognized in Distad v. Cubin, supra, that this provision relies upon judicial discretion "by its use of the words 'may adopt as the standard of conduct * * *.' " Distad v. Cubin, supra, at 176. See Restatement 2d § 286 comment d. We followed that point by stating a later conclusion that "[w]hen the facts represent a conglomeration of circumstances such as here in order to reach application of the statutory or regulatory violation, use of the negligence per se doctrine is not desirable." Distad v. Cubin, supra, at 179.

What this court said in Distad v. Cubin, supra, is consistent with a choice which is compelled in any given case by the policy tension that exists between the so-called negligence per se and the so-called evidence of negligence rules. The thrust of the negligence per se rule is that a legislative or administrative rule fixes a standard for all members of the community which does not require a specific interpretation by the jury, and thus certainty is promoted. The advantages of the evidence of negligence rule are perceived to be that not all statutes and rules are appropriate, and some are obsolete; it may be unrealistic to conclude that all reasonable people will blindly obey all statutes or administrative rules in all circumstances; and the law should not prevent the jury from assuming its usual and historic function of determining whether, in the light of their common experiences, the person charged with negligence failed to act as a reasonable person would act. See F. Harper, F. James and O. Gray, The Law of Torts, § 17.6 (2d ed. 1986). These conflicting policy arguments prompted Professor Morris to say:

"Often, after the duty problem is settled, a criminal proscription operates as a desirable, more exact standard that smooths up civil procedure. Nevertheless there are many situations in which substitution of the criminal proscription for the reasonably-prudent-man criterion effects substantive change--either because the particular case entails special facts or because the judgment of the legislature is misguided. Then use of the proscription will warp the policy of basing liability on fault. * * * " The Role of Criminal Statutes in Negligence Actions, 49 Columbia L.Rev. 21 at 47 (1949).

Courts should refrain from an inflexible application of the negligence per se rule because of the impact that may have upon the traditional policy of premising liability on fault. The approach of the Restatement 2d is consistent with such restraint. See Reporter's Notes in Appendix to the Restatement 2d, § 286, at 346-347 (1966). Following the Restatement 2d approach we find: (1) the standard defined by legislation or administrative rule should only be adopted when the four criteria of § 286, Restatement 2d, are met; (2) the excused violation of the legislative enactment or administrative rule is not negligence (a non-exclusive list of excused violations is encompassed in § 288A, Restatement 2d); and (3) even if the court finds that the criteria of § 286 are met, it is not required to adopt the legislative enactment as the standard of conduct because of the permissive language of the Restatement 2d. Distad v. Cubin, supra.

In Distad v. Cubin, supra, this court referred to decisions by the Supreme Court of Alaska. That court...