Wilson v. Sibert

• Decision Date: 22 May 1975
• Docket Number: No. 2165,2165
• Citation: 535 P.2d 1034
• Parties: Mary Bernice WILSON and John Wesley Wilson, Appellants, v. E. H. SIBERT, d/b/a Alaska Interviewing, Appellee.
• Court: Alaska Supreme Court

Page 1034

535 P.2d 1034

Mary Bernice WILSON and John Wesley Wilson, Appellants, v. E. H. SIBERT, d/b/a Alaska Interviewing, Appellee.

No. 2165.

Supreme Court of Alaska.

May 22, 1975.

L. Ames Luce, Anchorage, for appellants.

Alan G. Sherry, Merdes, Schaible, Staley & DeLisio, Anchorage, for appellee.

OPINION

Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.

RABINOWITZ, Chief Justice.

This is an appeal from a jury verdict in favor of appellee which has its origin in an automobile accident.

The facts are largely uncontested. Appellee Sibert was stopped in his automobile in line at the drive-in window of a bank in Anchorage. Appellant Mary Bernice Wilson was stationary in her vehicle immediately behind Sibert. According to appellee, Mrs. Wilson's car was four or five feet behind his; Mrs. Wilson testified that appellee's car was about two and a half car lengths ahead of hers. After appellee had been in line for a short period he noticed the car in front of him abruptly start backing toward him. He immediately shifted his car into reverse and backed up, colliding with the front of appellants' car with sufficient force to push a fender on appellants' car into the tire, rendering it immobile. Appellee did not sound his horn, or turn to look around, or look in the vehicle's mirror in order to ascertain if anyone was behind him prior to backing up. Appellee testified that he made the backing maneuver as a 'sheer reaction' and 'reflex' in order to avoid what appeared to him to be an impending collision with the car in front of him. He admitted that he did not know whether or not the car in front of him would have struck him if he hadn't moved and that he gave no conscious thought to looking back. According to him, he was 'too busy getting the car in gear and . . . didn't seem to have time to do anything other than get the car moving.' He became aware that someone was behind him only upon colliding with appellants' vehicle.

Mrs. Wilson testified that she was in the process of writing out a check when she suddenly glanced up to see appellee's car backing toward her. She immediately blew her horn but appellee did not stop until he collided with her.

The vehicle that was standing immediately ahead of appellee in the line, and which backed toward appellee's vehicle, departed the scene of the accident.

Appellants brought suit based on appellee's negligence to recover for Mrs. Wilson's injuries and her husband's consequent loss of services and consortium. Appellee denied his own negligence and interposed the defense of negligence of a third party, namely the driver ahead of him whose backing up had set off the chain of events at issue here. ¹

At the close of their case, and again at the close of the evidence, appellants moved for a directed verdict on the question of appellee's negligence. These motions were denied by the superior court, which concluded that liability as a matter of law had not been established and that the issue of negligence was properly one for the jury since appellee's testimony had raised a sufficient factual basis upon which a defense of sudden emergency could be predicated. Ultimately the trial court submitted the case to the jury with two separate instructions on the issue of negligence, over appellants' objections-one defining negligence in general ² and the other setting forth the sudden emergency doctrine. ³ Appellants in this appeal assert that the superior court erred in denying their motions for directed verdict on the issue of liability and committed further error in giving a sudden emergency instruction.

Standards for determination of a motion for directed verdict are well established. The trial court is to view the evidence in its strongest light in favor of the party against whom the motion is made and is then to determine whether fairminded jurors could differ as to the conclusions of fact that might be drawn from the evidence which was presented as to those questions. ⁴ If the evidence so viewed leaves room for diversity of opinion among reasonable persons, then the question should be left for the jury and the motion for directed verdict denied. ⁵ On appeal we apply the same standards.

Appellants argue that their motions for a directed verdict were erroneously denied because the evidence indicated a 'total absence of care' by appellee and therefore conclusively established his negligence, and because appellee's action in backing his vehicle without looking or sounding his horn constituted negligence per se.

Appellants contend that the evidence shows appellee acted with a 'total absence' of care because of his admitted failure to look backwards or in his mirror or to sound his horn before backing. No reasonable jury, they contend, could find in these facts any evidence that appellee exercised any care whatsoever toward Mrs. Wilson, and that therefore his negligence was conclusively established.

Appellants' position, however, fails to take into account the rapidity with which a person in an emergency situation may be forced to act. Appellee's testimony made reference to factual circumstances which could be viewed by the trial court as constituting an emergency situation. The law requires the jury to weigh the actions of a person charged with negligence against the standard of the conduct of a reasonable person in the same circumstances. When those circumstances include the presence of an emergency, that fact may justify a finding that conduct is acceptable which would be clearly unreasonable if there were no emergency. This view is adopted by the Restatement (Second) of Torts (1965), which provides at Section 296:

(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.

The comments to this section point out that this rule is applicable

where it is created by the unexpected operation of a natural force or by the innocent or wrongful act of a third person . . . the law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor's conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. The mere fact that his choice is unfortunate does not make it improper even though it is one which the actor should not have made had he had sufficient time to consider all the effects likely to follow his action. ⁶

In accord with this rule, the jury was bound to evaluate the reasonableness of appellee's actions in light of the evidence which showed him to be in an emergency situation when he took these actions. Reasonable minds could differ as to the propriety of his split-second decision to attempt to avoid an apparent impending collision by quickly shifting into reverse and backing up. That he failed to pause to warn others of his actions, or to ascertain that he could in fact back safely, are failings which clearly must be weighed in light of the apparent need to act almost instantaneously. The question is not, as appellants argue, whether this court will determine as a matter or law that persons in circumstances such as those faced by appellee owe 'no duty of care' to those around them, but whether the determination of the nature and extent of that duty is one properly left to the jury. ⁷ We hold that a reasonable difference of opinion could exist as to the proper course of action under the circumstances presented by this record. We therefore conclude that the issue of appellee's negligence was properly submitted to the jury for resolution.

The evidence that an emergency situation may have existed when appellee started backing his car up is dispositive of appellants' second theory for requiring a directed verdict as well. Appellants' contention that negligence per se was established is based on appellee's alleged violation of 13 AAC 02.485, which provided in part:

(a) A driver of a vehicle may not back the vehicle unless the movement can be made with safety and without interfering with the traffic.

Assuming, arguendo, that this traffic regulation is applicable to appellee's actions, then the analysis of the applicability of this court's negligence per se rule to the facts of the case at bar becomes appropriate. In Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971), we adopted the rule set forth in Restatement (Second) of Torts §§ 286, 288A, and 288B (1965). ⁸ This rule allows the trial court to adopt certain relevant legislative enactments or administrative regulations as the standard of conduct of a reasonable man, so that violation of the enactment or regulation will constitute negligence per se. However, an important limitation on the rule is found in § 288A, which provides:

(1) An excused violation of a legislative enactment or an administrative regulation is not negligence.

(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when

(d) (the actor) is confronted by an emergency not due to his own misconduct . . ..

Appellee's testimony clearly made reference to factual circumstances which could be viewed as an appropriate 'emergency' under this rule. Study of 13 AAC 02.485(a) and the statute under which this regulation was promulgated ⁹ reveals no reason why the regulation should be construed to prohibit an emergency excuse. Nor was there any evidence that the 'emergency' arose because of appellee's own misconduct. We conclude that application in this case of the per se negligence rule in force in Alaska leaves a factual question for determination by the jury regarding existence of an emergency excuse, under § 288A (2)(d), supra, for violation of...