Snyder v. Dominguez

• Decision Date: 27 May 2008
• Docket Number: No. 104,345.,104,345.
• Parties: Beverly SNYDER, in her capacity as Mother and Personal Representative of the Estate of Terri LeAnn Stout, Deceased, Plaintiff/Appellant, v. Maldonado Onefre DOMINGUEZ, and Progressive Northern Insurance Company, Defendants/Appellees, and Isidro Dominguez, individually and d/b/a Dominguez Trucking, Defendant.
• Court: Oklahoma Supreme Court

202 P.3d 135

2008 OK 53

Beverly SNYDER, in her capacity as Mother and Personal Representative of the Estate of Terri LeAnn Stout, Deceased, Plaintiff/Appellant, v. Maldonado Onefre DOMINGUEZ, and Progressive Northern Insurance Company, Defendants/Appellees, and Isidro Dominguez, individually and d/b/a Dominguez Trucking, Defendant.

No. 104,345.

Supreme Court of Oklahoma.

May 27, 2008.

Rehearing Denied January 20, 2009.

CERTIORARI TO COURT OF CIVIL APPEALS DIVISION 3.

¶ 0 In this action for the wrongful death of a passenger arising from a motor vehicle accident, the Honorable Ray Dean Linder, District Judge of Woodward County, instructed the jury on a passenger's duty and contributory negligence. The jury rendered a verdict in favor of the defendant, and the trial court entered judgment thereon. The Court of Civil Appeals affirmed, holding that any error in the jury instructions was harmless. We conclude that instructing the jury on contributory negligence was not harmless error when there was no direct evidence or reasonable inference that the passenger was negligent.

COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; MATTER REMANDED FOR NEW TRIAL.

Regena McNeill Walsh, Peter J. Ram, Beeler, Walsh, & Walsh, PLLC, Oklahoma City, OK, for Plaintiff/Appellant.

Brian J. Goree, Latham, Stall, Wagner, Steele & Lehman, P.C., Tulsa, OK, for Defendants/Appellees.

COLBERT, J.

¶ 1 This matter arises from a fatal collision between a passenger car and a truck on a two-lane highway. Plaintiff Beverly Snyder, in her capacity as the mother of Terri LeAnn Stout, deceased, and the personal representative of her daughter's estate, appealed from the judgment on the jury's verdict in favor of Defendant Maldonado Onefre Dominguez, the driver of the truck. Having previously granted certiorari, we now consider whether the trial court erred when it addressed the possibility of the passenger's contributory negligence in the jury instructions.

BACKGROUND

¶ 2 On September 6, 2005, there was a fatal head-on collision between a passenger car and a truck on Highway 412. Terri LeAnn Stout was riding in the car driven by Izora Kraft. They were traveling west from Enid to Woodward. Maldonado Onefre Dominguez was driving the truck, which consisted of a semi-tractor pulling an empty dump trailer. Mr. Dominguez was traveling east to a rock quarry to load the trailer with materials for a job site in Clinton. Highway 412 is a two-lane highway at the point where the accident occurred, with one lane of traffic on each side. Ms. Kraft was killed instantly and Ms. Stout died shortly afterward.

¶ 3 Plaintiff filed this lawsuit for wrongful death against Mr. Dominguez, Isidro Dominguez, and Progressive Northern Insurance Company.¹ During the trial, Mr. Dominguez testified that he first saw the car as it crested a hill and that it was crossing the center line into the path of his truck. He testified that the car veered so far that the driver's side tires were almost on the white line on the wrong side of the road. Because he could not avoid the car by moving to his right, Mr. Dominguez tried to avoid the collision by engaging the truck's brakes and steering across the center line into the opposing lane. According to Mr. Dominguez, the collision occurred when the car swerved back toward the correct lane at the last moment. The car and truck collided mostly in the car's proper lane of travel, but on or near the center line. There were no other eye witnesses.

¶ 4 The highway patrol officer who investigated the accident concluded that the marks left by the car's wheels at the point of impact indicated that it was crossing the center line from the wrong side of the road when the collision occurred. Based on his investigation, the trooper did not issue a ticket to Mr. Dominguez. Defendant's expert in accident reconstruction also corroborated the truck driver's testimony. Plaintiff's expert in accident reconstruction, however, relied on data stored in the car's "black box" to conclude that the car never crossed the center line. According to Plaintiff's expert, therefore, the collision occurred only because the truck driver crossed into the car's lane. Both experts, however, agreed that the car was probably operating on cruise control, that its speed and engine revolutions did not vary, and that its brakes were never engaged. They also agreed that the truck's brakes were applied before the collision, that both vehicles were in proper working order, and that there was no indication of excessive speed. The record contains no evidence that illness, weather, or road condition were factors.

¶ 5 Defendant requested jury instructions on a passenger's contributory negligence. Plaintiff had argued that, even if the truck driver testified truthfully about the car's movements, he did not respond appropriately because he had at least six seconds to either move to the right or come to a complete stop. If so, Defendant countered, the car's passenger also had six seconds to react and should have warned the driver of the car that she was crossing the center line. Plaintiff, however, argued that there is no direct evidence that the passenger was negligent and no evidence of any special circumstances giving rise to a duty to warn. Plaintiff also focused on the point when the truck crossed the center line and asserted that the passenger would have had less than 2 1/2 seconds to respond and warn the driver.

¶ 6 The trial judge concluded that he was legally obligated to instruct the jury on a passenger's duty and contributory negligence, despite acknowledging that there was "no direct proof" that this passenger was negligent. The trial judge also presented the jury with three verdict forms, each addressing the possibility of a finding that the passenger was contributorily negligent. The jury found in Defendant's favor and the trial court entered judgment on the jury's verdict. Plaintiff filed a motion for judgment notwithstanding the verdict or new trial. The trial court denied that motion and Plaintiff appealed.

¶ 7 The Court of Civil Appeals affirmed the trial court. The Court concluded that, even if the trial court erred when it instructed the jury on a passenger's duty and contributory negligence, the error was harmless because the verdict form used by the jury was appropriate only if it found Defendant free of any negligence. Plaintiff filed a petition for certiorari with this Court. That petition was previously granted and is now before the Court for a decision on the substantive issue.

STANDARD OF REVIEW

¶ 8 Throughout this matter, Plaintiff has raised a single issue: that the trial court erred when it instructed the jury on a passenger's duty and the effect of a passenger's contributory negligence.² The power of an appellate court to disturb a jury's verdict on the basis of an error in jury instructions is tightly circumscribed and can be exercised only if the court concludes that the error "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." Okla. Stat. tit. 20, § 3001.1 (2001); see also Lierly v. Tidewater Petroleum Corp., 2006 OK 47, ¶ 15, 139 P.3d 897, 902. This Court can disturb a jury's verdict only if it concludes that an error in a jury instruction is so pervasive that the instructions as a whole create the "probability that the jury was misled into reaching a result different from that which would have been reached but for the error." Myers v. Mo. Pac. R.R., 2002 OK 60, ¶ 29, 52 P.3d 1014, 1028-29.

DISCUSSION

¶ 9 Negligence is the "want of ordinary care or skill in the management of [a person's] property or person." Okla. Stat. tit. 76, § 5(a) (2001). Contributory negligence "necessarily presupposes negligence on the part of the defendant" and occurs when a plaintiff's own negligence combines with a defendant's negligence to cause the plaintiff's injury. Miller v. Price, 1934 OK 332, ¶ 8, 168 Okla. 452, 33 P.2d 624, 626; Thomason v. Pilger, 2005 OK 10, ¶ 10, 112 P.3d 1162, 1166.

¶ 10 Motor vehicle passengers present a special challenge in the context of contributory negligence. Although a driver's negligence cannot be imputed to a passenger, passengers have an independent duty to use ordinary care for their own safety. Shayler v. West, 1947 OK 129, ¶ 20, 199 Okla. 386, 185 P.2d 957, 959; Thomason, 2005 OK 10, ¶ 10, 112 P.3d at 1166. A passenger's contributory negligence can take the form of active negligence. For example, when a teen-aged driver lost control of his car, the passengers were contributorily negligent because they had been drinking heavily, had teased the newly-licensed designated driver about his cautious driving, and had urged him to drive at high speeds through a neighborhood with winding roads. Morris v. Sorrells, 1992 OK 125, 837 P.2d 913.

¶ 11 A passenger also may be negligent by failing to act when the circumstances require action. Although a passenger's mere presence in a vehicle is not sufficient to create an issue of contributory negligence, the circumstances may support a reasonable inference that the passenger should have cautioned the driver about the driver's operation of the vehicle or about other dangerous conditions. Thomason, 2005 OK 10, ¶¶ 10 & 15, 112 P.3d at 1166 & 1167. "If a passenger has the same opportunity as the driver to observe a dangerous condition, and he fails to warn the driver until it is too late, a jury must decide whether the passenger was guilty of contributory negligence." Bradshaw v. Fields, 1977 OK 240, ¶ 10, 572 P.2d 552, 554. If the evidence supports any inference that the passenger should have warned the driver under the circumstances, then the trial judge must instruct the jury on the issue. Thomason, 2005 OK 10, ¶¶ 15-16, 112 P.3d at 1167. This can occur when the driver is under some incapacity or driving recklessly and/or when the road conditions create a heightened danger. Bradsh...