Tidd v. Kroshus

• Decision Date: 13 October 2015
• Docket Number: No. 20140426.,20140426.
• Citation: 870 N.W.2d 181
• Parties: Michelle TIDD, Plaintiff and Appellant v. Scott KROSHUS, Defendant and Appellee.
• Court: North Dakota Supreme Court

870 N.W.2d 181

Michelle TIDD, Plaintiff and Appellant

v.Scott KROSHUS, Defendant and Appellee.

No. 20140426.

Supreme Court of North Dakota.

Oct. 13, 2015.

Timothy M. O'Keeffe (argued) and Tatum O. Lindbo (appeared), Fargo, N.D., for plaintiff and appellant.

William P. Harrie (argued) and Sharon T. Lo (appeared), Fargo, N.D., for defendant and appellee.

Opinion

CROTHERS, Justice.

[¶ 1] Michelle Tidd appeals from a judgment entered on a jury verdict dismissing her negligence action against Scott Kroshus arising out of a collision between Tidd's bike and Kroshus' car. Tidd also appeals from the district court's order denying her motion for a new trial, arguing the district court erred in instructing the jury on the sudden emergency doctrine. We reverse and remand, concluding under the facts presented, it was error to instruct the jury on the sudden emergency doctrine.

I

[¶ 2] On the evening of August 18, 2010, Tidd was riding her bike on a sidewalk in Fargo when she collided with Kroshus' car. Kroshus was entering the street from the alley when he collided with Tidd. Tidd sued Kroshus alleging Kroshus' negligence caused the collision and Tidd's bodily injuries.

[¶ 3] The parties' trial testimony differed on the details of the collision. Tidd testified the area was well-lit, she had lights on her bike, she was wearing a bright blue jacket with reflectors on it and Kroshus' car struck her bike. She testified she does not typically ride her bike at night because it is not safe to ride after dark. She testified she did not see Kroshus' car before the impact, and did not hear the car coming because she was wearing headphones while listening to her iPod.

[¶ 4] According to Kroshus, he was driving with his headlights on because the area was dark. He stopped his car in the alley as he was approaching the sidewalk. He stated the buildings on each side of the alley made it impossible to see anyone on the sidewalk. The collision occurred when he began looking to his left as he was “creeping forward to get a better look [at] the sidewalk.” He did not see Tidd on her bike before the collision, and the bike had no lights. He immediately stopped his car after the collision. He testified he traveled the alley where the collision occurred a few times every week and he normally took precautions when emerging from the alley because he knew bike riders or pedestrians could be on the sidewalk. He does not usually see bike riders at night.

[¶ 5] Over Tidd's objection, the district court instructed the jury on sudden emergency. The “sudden emergency” instruction stated:

“If suddenly faced with a dangerous situation the person did not create, the person is not held to the same accuracy of judgment as one would be if there were time for deliberation. The person is not at fault if the person acted as an ordinary prudent person would act in a similar emergency.”

In addition to the sudden emergency instruction, the jury was instructed on negligence, state law regarding the operation of a vehicle emerging from an alley, Fargo ordinances regarding the operation of bicycles on a sidewalk, operation of bicycles at night, evidence of compliance or non-compliance with statutes or municipal ordinances, the general care required in the operation of a motor vehicle, the duty of a person with the right-of-way, comparative fault and weight and credibility of evidence.

[¶ 6] Tidd argued the sudden emergency instruction was unnecessary because there was no evidence of a sudden emergency. The jury returned a verdict finding Kroshus was not at fault, and a judgment was entered dismissing Tidd's complaint. Tidd moved for a new trial, arguing the district court erred in instructing the jury on sudden emergency. Tidd's motion was denied.

II

[¶ 7] Tidd argues the district court committed reversible error by instructing the jury on the sudden emergency doctrine. This Court has summarized its standard of review for jury instructions:

“Jury instructions should fairly inform the jury of the law applicable to the case. They should also fairly cover the claims made by both sides of the case. Instructions on issues or matters not warranted by the evidence are erroneous, but constitute reversible error only when calculated to mislead the jury or, in other words, when they are prejudicial.

....

“When a trial court has chosen a specific instruction, a reviewing court should not be quick to second-guess its choice, if there is evidence or inferences from the evidence to support it.... Only scant evidence may be needed to support a jury instruction. Where there is no evidence to support a particular theory, there should be no instruction on it; but if the evidence admits of more than one inference, an instruction is proper.”

Cartier v. Northwestern Elec., Inc., 2010 ND 14, ¶ 11, 777 N.W.2d 866 (quoting Harfield v. Tate, 1999 ND 166, ¶ 6, 598 N.W.2d 840 ). “On appeal, we review jury instructions as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient.” M.M. v. Fargo Pub. Sch. Dist. No. 1, 2010 ND 102, ¶ 24, 783 N.W.2d 806 (quoting Flatt v. Kantak, 2004 ND 173, ¶ 23, 687 N.W.2d 208 ). If the district court commits error in its instructions, this Court decides whether the error was harmless. Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691.

[¶ 8] In Ebach v. Ralston, this Court “outlined the contours of the sudden emergency doctrine” developed in earlier cases:

“ ‘2. The doctrine of “sudden emergency” is based upon the principle that a person suddenly confronted by a dangerous situation, whether it was created by the negligence of another person or by a condition not the result of his own negligence, is not held to the same accuracy of judgment as would be required of him if he had time for deliberation.

“ ‘3. Where a person who suddenly is confronted by a dangerous situation not caused by his own negligence exercises such care as an ordinarily prudent person would exercise in a like emergency, he is not liable for a resulting injury.’ ”

510 N.W.2d 604, 609 (N.D.1994) (quoting Tennyson v. Bandle, 181 N.W.2d 687 (N.D.1970), at syllabus paragraphs 2 and 3). The sudden emergency doctrine requires “a person to exercise ordinary care under emergency circumstances that are not caused by that person's own negligence.” Ebach, at 609. “[W]hether a motorist was confronted with a sudden emergency [is a jury question] unless the evidence is such that reasonable men can draw but one conclusion therefrom.” Tennyson, at 691.

[¶ 9] While discussing the sudden emergency doctrine in Tennyson, we also stated, “every unexpected occurrence does not constitute a sudden emergency. It must be a sudden emergency confronting [the actor] with such a condition that he momentarily is rendered incapable of deliberate and intelligent action.” 181 N.W.2d at 691 ; see also Ebach, 510 N.W.2d at 610 (“As Prosser and Keeton on Torts at § 33 suggest, under present day traffic conditions, an automobile driver must be prepared for the sudden appearance of obstacles and persons on highways and at intersections.” (citing W. Keeton, et al., Prosser and Keeton on the Law of Torts § 33, 197 (5th ed.1984))).

[¶ 10] In allowing the sudden emergency instruction here, the district court stated:

“Kroshus maintained he was unexpectedly confronted with an emergency he did not cause. Tidd wholly disagreed. That very dispute gave this Court reason to provide the sudden emergency instruction. The question of whether a sudden emergency was created is one for the jury to determine. Tennyson v. Bandle, 181 N.W.2d 687, 691 (N.D.1970). And where there is conflicting evidence about whether a person's conduct caused the emergency situation, the sudden emergency instruction is justified. Ebach, 510 N.W.2d at 610.

“Based on Kroshus's case theory, he was entitled to the instruction. Kroshus testified it was dark out when the collision occurred. He said he was driving west between three and five miles per hour in an alley just east of Seventh Street in Fargo. He testified he stopped his car before crossing the sidewalk parallel to Seventh Street. As he was ‘creeping forward to get a better look at the sidewalk,’ the collision with Tidd occurred. Kroshus said he did not see Tidd, her bicycle, nor any lights coming down the sidewalk prior to the collision. Without warning, Tidd's bicycle and Kroshus's vehicle collided. The impact occurred at the car's left front corner. Kroshus testified he ‘stopped and put it in park as fast as [he] could.’ ”

[¶ 11] In the two cases cited by the district court, Ebach and Tennyson, this Court upheld the trial courts' decisions to instruct the jury on sudden emergency. In each case, the defendant motorist unexpectedly hit a slippery spot on the road before colliding with the plaintiff's vehicle. Ebach, 510 N.W.2d at 606 ; Tennyson, 181 N.W.2d at 689. We held in both cases sufficient evidence existed for the jury to find the defendants unexpectedly encountered a sudden emergency before the accident. Ebach, at 611 (“[T]here was evidence for the jury to find that Ralston unexpectedly encountered a slippery road immediately before the red light and that the Ebachs failed to prove that he was negligent in operating his truck both before and while he encountered that slippery condition.”); Tennyson, at 691 (“Whether this sudden change in the condition of the street created a sudden emergency is something upon which reasonable men might well disagree.... We have examined the record and determine that there was evidence in this case upon which the court could properly submit the issue of sudden emergency to the jury....”).

[¶ 12] The “sudden emergency” instruction in this case stated:

“If suddenly faced with a dangerous situation the person did not create, the person is not held to the same accuracy of judgment as one would be if there were time for deliberation. The person is not at fault if the person acted as an ordinary prudent

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