Rose v. City of Tulsa , 114 P.3d 462 ( 2005 )

Opinion by

LARRY JOPLIN, Presiding Judge:

¶ 1 Defendant City of Tulsa, a municipal corporation (“City”) seeks review of the trial court’s order granting a directed verdict for Plaintiff/Appellee Sonja Dee Rose (“Rose”) on the issue of liability regarding Rose’s action to recover damages sustained in a rear-end car wreck. City complains that the trial court (1) improperly withheld the issue of negligence from the jury; (2) erred in refusing to instruct the jury on “unavoidable accident” and (3) erred in not instructing the jury on sovereign immunity under the Governmental Tort Claims Act. Finding no error, however, we affirm.

¶2 On June 10, 1999, City’s employee, while driving a pickup truck in the course of his duties, struck from behind the car occupied by Rose, causing property damage and personal injury to Rose. She filed suit and the matter was tried to a jury on May 7, 2003. At the close of evidence, the trial court granted Rose’s Motion for Directed Verdict on the issue of City’s liability and submitted the issue of damages to the jury. The jury returned a verdict for Plaintiff and awarded her actual damages.

¶ 3 We review de novo a trial court’s ruling on a motion for directed verdict. Computer Publications, Inc. v. Welton, 2002 OK 50, ¶ 6, 49 P.3d 732, 735. Although the general rule is that the “determination of the question of negligence, that is, what is or what is not negligence, in nearly every case is a question for the jury ... [it is] ... a question of law for the court ... in cases where the admitted facts are so conclusive” that reasonable men would not disagree thereon. Gwinn v. Payne, 1970 OK 145, ¶ 20, 477 P.2d 680, 683, 684. Where the “evidence supports the trial court’s rendering a directed verdict,” the granting of a directed verdict will be affirmed. Smith v. Marshall Oil Corporation, 2004 OK 10, ¶23, 85 P.3d 830, 838.

¶ 4 The evidence reveals that just before leaving from the City’s park office, the City’s driver visited with people who were gathered underneath a porch while it rained. He then drove on a route with which he was very familiar. The route included an intersection with a stop sign at the bottom of a steep hill. Despite the rain and the nature of the route, City’s driver traveled at no less than the posted speed limit. City’s driver braked while coming down the hill but felt as if he gained speed to the extent that he felt he was traveling 100 m.p.h. prior to hitting Rose’s car from behind while it was stopped at the stop sign. After the collision, other vehicles crested the hill, slid, but were able to safely stop.

¶5 City argues that the-trial court erred in granting a directed verdict of liability as it should have submitted the case to the jury with an unavoidable accident instruction as City’s driver was driving prudently since it was not foreseeable that the roads were slick. Rose contends the doctrine of unavoidable accident does not apply.

¶ 6 Oklahoma motorists are legally bound to have sufficient power to avoid a collision by driving at “an appropriate reduced speed when approaching ... an intersection ... when approaching a hillcrest ... and when special hazard exists ... by reason of weather or highway conditions,”¹ by driving at a speed less than the posted speed limit “when' a special hazard exists that requires lower speed” in order to be able to stop as required by law;² and to “avoid collision with other persons properly operating vehicles on the same highway, and this includes being able to slow the car to meet the requirements of varying road conditions or to stop it, if necessary, to avoid collision.” Huey v. Stephens, 1954 OK 222, ¶ 7, 275 P.2d at 256. Generally:

Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and any other conditions then existing. No person shall drive any vehicle upon a highway at a speed greater than will permit the driver to bring it' to a stop within the assured clear distance ahead.

47 O.S. § 11-401, § 11-80KA).

¶ 7 An unavoidable accident “occurs without negligence of either party, and when all means which common prudence suggests have been used to prevent it.” Athey v. Bingham, 1991 OK 82, ¶ 4, 823 P.2d 347, 348. There must be “the introduction of some evidence tending to show that the injury complained of resulted solely from some condition or act for which the defendant is not chargeable... [and only] if the person by whom it occurs neither has, nor is legally bound to have, sufficient power to avoid, or prevent” the collision. Huey v. Stephens, 1954 OK 222, ¶ 7, ¶ 8, 275 P.2d 254, 256, 257 (emphasis added).

¶ 8 The giving of an unavoidable accident instruction has been upheld when a driver exercising reasonable prudence encounters (1) an unexpected obstruction, such as a car illegally parked on the roadway with no lights (Kraft Foods Co., v. Chadwell, 1952 OK 382, 249 P.2d 1002, 1004); (2) latent mechanic problems that result in loss of control (Shoopman v. Travelers Ins. Co., 1974 OK 6, ¶ 15, 518. P.2d 1108, 1111); or (3) unforeseen road conditions such as a “deep rut along the edge of the pavement ... [an] unanticipated presence of grease or other material on a road ... [such as] loose gravel ...” (Huey v. Stephens, 1954 OK 222, ¶ 5, ¶ 7, 275 P.2d at 255, 256). Unforeseen road conditions may include slick roads, but will support the giving of an unavoidable accident instruction only when the driver, prior to losing control, was driving prudently. Athey v. Bingham, 1991 OK 82, ¶ 5, 823 P.2d at 348; Ankney v. Hall, 1988 OK 101, ¶2, 764 P.2d at 154.

¶9 The giving of an unavoidable accident instruction without an evidentiary basis is “incorrect and misleading.” Huey v. Stephens, 1954 OK 222, ¶ 9, 275 P.2d at 257. The Supreme Court has held that such an instruction should not be given when hazardous road conditions are foreseeable and there is evidence indicating negligence:

As the Court of Civil Appeals correctly held, the instruction woitld have- been error under the facts of this case. Use of the instruction ‘should be restricted to those circumstances where the evidence indicates the occurrence was caused by unforeseen circumstances or conditions and not by the negligence of either party.’ (citation omitted) ... Use of the instruction in this matter was not indicated. The roads were visibly icy during a sleet storm. In addition, USAA’s investigation and evaluation of the claim had always indicated negligence on the part of one or both parties.

Newport v. Terry, 2000 OK 59, ¶ 31, ¶ 32, 11 P.3d 190, 199 (emphasis added). Thus, if slick roads are foreseeable under the weather conditions, and the evidence indicates negligence prior to losing control, the instruction should not be given. See also Huey v. Stephens, 1954 OK 222, ¶ 8, 275 P.2d at 257.

¶ 10 When a jury is instructed on unavoidable accident, the uniform instruction directs “the jury to return a verdict in favor of defendant.” Huey v. Stephens, 1954 OK 222, ¶ 8, 275 P.2d at 257. Such a benefit should not be available to an “automobile driver ... when his own acts have contributed to the situation in which he finds himself.” Huey v. Stephens, 1954 OK 222, ¶ 7, 275 P.2d at 257. Accordingly:

Great caution should be exercised in submitting a case to a jury on an unavoidable accident instruction. It should rarely be given. It should be restricted to those instances where the evidence indicates the occurrence was caused by unforeseen circumstances or conditions and not by the negligence of either party.

Ankney v. Hall, 1988 OK 101, ¶ 13, 764 P.2d 153, 156.

¶ 11 This is so as, generally, instructions on negligence are deemed adequate without the necessity of instructing on unavoidable accident. Athey v. Bingham, 1991 OK 82, ¶ 11, 823 P.2d at 348. Unavoidable accident instructions “should be restricted to those instances where the evidence indicates the occurrence was caused by unforeseen circumstances or conditions and not by the negligence of either party.” Athey v. Bingham, 1991 OK 82, ¶ 12, 823 P.2d at 350.

¶ 12 There can be but three explanations for this collision: unavoidable accident, negligence of the plaintiff, or negligence of the defendant.³ Here, the evidence was uncon-tradicted that plaintiff was legally on the roadway, stopped at a stop sign and in no way contributed to the collision. Further, the evidence is that the collision was not caused by unforeseen hazardous circumstances and indicated negligence on the part of City’s driver. Consequently, there was not an evidentiary basis for the giving of an unavoidable accident instruction because the City’s driver was aware that it rained just prior to the collision, knew that the route he was traveling included a stop sign at the bottom of a steep hill, and yet traveled on the roadway at a speed resulting in him feeling as if he was “going 100 m.p.h. down that hill.”

¶ 13 As City was not entitled to receive the benefits of an unavoidable accident instruction and as Plaintiff did not contribute to the cause of this collision, the trial court was correct in directing a verdict of liability against Defendant for this rear-end collision. The trial court’s order granting a directed verdict in favor of Plaintiff on liability and the subsequent jury verdict should be, and is hereby, AFFIRMED.

HANSEN, J., concurs, and BUETTNER, C.J., dissents with separate opinion.

1 . 47 O.S. § 11-401(D)

2 . 47 O.S. § 11 — 401(B)

3 . Defendant/Appellant City of Tulsa contends the trial court erred in not applying sovereign immunity to preclude liability when imposed due to "weather conditions,” however, based on the previous finding that liability was properly imposed based upon negligence and not weather conditions, we need not address this assignment of error.