Smith v. Angell, 18674

• Decision Date: 26 March 1992
• Docket Number: No. 18674,18674
• Parties: Shawn SMITH, Individually, and as Personal Representative of the Estate of Kenneth E. Smith, and Jesse Smith, a Minor, by and through his Guardian, Sharon Smith, Plaintiffs-Respondents, v. Kayla ANGELL, a Minor, and Gary S. and Sondra Angell, husband and wife, and parents of Kayla Angell, Defendants-Appellants. Twin Falls, March 1991 Term
• Court: Idaho Supreme Court

Page 1163

830 P.2d 1163

122 Idaho 25

Shawn SMITH, Individually, and as Personal Representative of the Estate of Kenneth E. Smith, and Jesse Smith, a Minor, by and through his Guardian, Sharon Smith, Plaintiffs-Respondents, v. Kayla ANGELL, a Minor, and Gary S. and Sondra Angell, husband and wife, and parents of Kayla Angell, Defendants-Appellants.

No. 18674.

Supreme Court of Idaho,

Twin Falls, March 1991 Term.

March 26, 1992.

Rehearing Denied June 17, 1992.

Reed, McClure, Moceri, Thonn & Moriarty, Seattle, Wash., and Kenneth E. Lyon, Jr., Pocatello, for defendants-appellants. William R. Hickman and Kenneth E. Lyon, Jr., argued.

Jones, Christensen, Jorgensen, Robison, Holmes & Robison, Pocatello, for plaintiffs-respondents. Jesse C. Robison argued.

BAKES, Chief Justice.

Defendants Kayla Angell, a minor, and her parents, Gary and Sondra Angell, appeal from the judgment entered against them in this wrongful death action brought by the estate of the deceased, Kenneth E. Smith, and his two children, Shawn and Jesse Smith. Plaintiffs' cross appeal was voluntarily dismissed.

On July 8, 1988, at approximately 6:45 p.m., Kenneth E. Smith was driving his motorcycle south, along the inside lane (next to the center turn lane) of Yellowstone Avenue, a four-lane street, in Pocatello, Idaho. Fifteen-year old Kayla Angell, who was driving her parents' 1979 pick-up truck with their permission, was leaving a fast food restaurant located on the west side of Yellowstone Ave. Before exiting the restaurant parking lot and entering Yellowstone Ave. to proceed north, Angell looked to her left (north) and observed a Ford Bronco coming south in the outside lane. She did not see Smith's motorcycle behind the Bronco in the inside lane because her view of it was obstructed by the Bronco. She then looked to her right (south), and saw traffic proceeding toward her along the outside northbound lanes of Yellowstone Ave. After the Bronco passed, and without looking again to her left, she entered Yellowstone Ave. and collided with Smith's motorcycle. Smith died a very short time after as a result of massive trauma to his chest sustained in the collision. A passenger on Smith's motorcycle was injured.

On May 8, 1989, Smith's estate and children filed a complaint for wrongful death, alleging that Kayla Angell's negligence caused the collision. The defendants filed an answer on July 25, 1989, denying negligence and affirmatively alleging that Smith had been contributorily negligent. The plaintiffs filed a motion for partial summary judgment, seeking a ruling that Angell was negligent per se and that Smith had no comparative negligence. The trial court denied the motion, concluding that a genuine issue of fact existed regarding both Smith's and Angell's negligence. The case proceeded to trial on February 26, 1990.

At trial, the parties stipulated that Kenneth Smith was travelling below the speed limit of thirty-five miles per hour at the time of the collision and that the headlight of his motorcycle was turned on. They also stipulated that the Bannock Regional Medical Center toxicology reports concluded that Smith had not ingested alcohol or drugs the day of the collision.

The evidence was conflicting over whether Smith's motorcycle ran into the left front of the pickup or whether the pickup ran into the right front side of the motorcycle. Kayla Angell testified that she did not know exactly what happened because she did not see the motorcycle until after the collision occurred. The passenger riding with Smith on the motorcycle suffered injuries and could not even recall the accident. Both sides offered testimony of bystanders who were at the scene at the time of the accident and testimony of expert witnesses who presented theories of accident reconstruction and reaction times. The plaintiffs' expert testified that Angell ran into Smith, and, in his opinion, Smith had no opportunity to react to avoid Angell's vehicle. The defendants' expert testified that Smith ran into Angell and should have seen the truck in front of him and could have avoided the accident if he had been paying attention.

The jury returned a verdict for the plaintiffs, finding Angell one hundred percent at fault and no comparative negligence on Smith's part. The jury awarded a total of $325,766 to the plaintiffs. The district court awarded prejudgment interest on $100,000 of the verdict ¹ and additional interest on the total jury award from the date of the special verdict to the date of the final judgment. The court also awarded the plaintiffs costs and attorney fees equal to twenty-five percent of the total jury award. The district court based its award of attorney fees on its conclusion that the defendants' refusal "to settle this matter for policy limits was frivolous, unreasonable and without foundation as was the defense offered by defendants in this matter."

On appeal, defendants contend that the trial court erred in instructing the jury regarding presumptions, by awarding attorney fees to the plaintiffs, and by denying their motion for a new trial. They also argue that the amount of the jury's award was excessive.

First, defendants contend that the trial court erred by instructing the jury on the "dead man's presumption" in Instruction No. 23, which stated:

The law presumes that Kenneth Smith, in his conduct at the time of and immediately preceding the accident, was exercising ordinary care. This presumption is a form of evidence and will support a finding in accord with the presumption unless the defendants introduce substantial evidence to the contrary.

Defendants point out that this instruction is contrary to our holding in Bongiovi v. Jamison, 110 Idaho 734, 718 P.2d 1172 (1986), and I.R.E. 301.

In Bongiovi v. Jamison, supra, this Court held that a jury may not be instructed on presumptions. Discussing the effect of I.R.E. 301, ² which had been adopted only the year before, the Court in Bongiovi stated:

This rule provides two major benefits. First, it standardizes the definition of the word presumption. The rule merely requires the courts to instruct directly on those evidentiary objectives rather than referring to them as presumptions. The rule simply means that when courts use the word presumption, and it is not otherwise defined by statute or the Rules of Evidence, then it shifts the burden of production.

Second, the rule effectively eliminates the word presumption from jury instructions. Indeed, the comments to Rule 301 advise the courts not to mention presumptions to juries....

A Rule 301 presumption relieves the party in whose favor the presumption operates from having to adduce further evidence of the presumed fact until the opponent introduces substantial evidence of the nonexistence of the fact.

110 Idaho at 738, 718 P.2d 1172 (emphasis added). The Court in Bongiovi held that it was reversible error to give an instruction similar to Instruction No. 23 in this case. Instruction No. 23 erroneously advised the jury that "the law presumes" the decedent was exercising due care. (Emphasis added.) The Court in Bongiovi specifically held that such an "instruction is unnecessary as well as improper" and explained that I.R.E. 301 "effectively eliminates the word presumption from jury instructions."

Furthermore, Instruction No. 23 stated that "[t]his presumption is a form of evidence." Bongiovi said that presumptions are not a form of evidence. ³ As the Court said in Bongiovi, I.R.E. 301 "merely requires the courts to instruct directly on those evidentiary objectives rather than referring to them as presumptions." Bongiovi, 110 Idaho at 738, 718 P.2d 1172. Finally, Instruction No. 23 instructed the jury that the defendants must introduce "substantial evidence" to overcome the presumption. This statement compounds the error, as a jury could easily infer that such a statement imposes a higher standard than that ordinarily imposed by law. Accordingly, the trial court erred in giving Instruction No. 23 to the jury. ⁴ Bongiovi v. Jamison, supra ("Where the evidence does conclusively establish a fact, the trial court should simply instruct the jury that that fact has been established--thus avoiding use of the word 'presumption.' " 110 Idaho at 739, 718 P.2d 1172.).

The trial court's error in instructing the jury on the dead man's presumption interfered with the jury's evaluation of the issue of Smith's possible comparative negligence. The law requires all drivers to keep a lookout for other vehicles. Robinson v. Westover, 101 Idaho 766, 768, 620 P.2d 1096, 1098 (1980) ("Person operating motor vehicle has duty to keep proper lookout."); Munson v. State, Dept. of Highways, 96 Idaho 529, 530-531, 531 P.2d 1174, 1176-1177 (1975) ("[D]river of automobile is held to have notice of that which is plainly visible on highway before him."); Drury v. Palmer, 84 Idaho 558, 564, 375 P.2d 125, 128 (1962) ("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 a 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.").

The question of whether Smith was comparatively negligent for failing to keep a proper lookout was a question of fact for the jury, as the trial court correctly noted in denying Smiths' motion for partial summary judgment. Whether Smith was keeping a proper lookout so as to see the pickup truck entering the highway in front of him was a question of fact for the jury. However, the jury, having been incorrectly instructed on the dead man's presumption, and being told that it was "a form of evidence" which may only be overcome by "substantial evidence to the contrary," may have based its decision on the presumption rather than the facts in the case. A properly instructed jury may well have allocated some negligence to...