Bettner v. Boring ( 1988 )

QUINN, Chief Justice,

dissenting:

I dissent from the judgment holding that the trial court did not err in refusing to give Boring’s tendered instruction on the presumption of negligence arising from a rear end collision. In my view, the court of appeals properly ordered a new trial in this case and its judgment should be affirmed.

Prior to the collision, the plaintiff, Boring, had driven his vehicle off the icy highway into a field and had stopped about ten to fifteen feet beyond the shoulder portion of the highway. Boring’s vehicle was stopped in that position when it was struck in the left rear by a pick-up truck driven by the defendant, Bettner. Immediately prior to the collision, Bettner had been driving on the icy highway at approximately twenty to twenty-five miles per hour when she applied her brakes and spun out of control for approximately 20 feet and collided with the left rear of Boring’s parked vehicle. Under these circumstances, a rebuttable presumption arises that Bettner, as the driver of the striking vehicle, was negligent and the jury should have been so instructed.¹

In Iacino v. Brown, 121 Colo. 450, 217 P.2d 266 (1950), this court held that there is a rebuttable presumption of negligence when a driver collides with the rear of a vehicle properly parked along the curb line of a highway. In so holding, the court stated that where “defendant was in control of an automobile which collided with the rear end of plaintiff’s automobile, without any fault whatever on the part of plaintiff, there is a presumption of negligence sufficient to make a prima facie case.” 121 Colo. at 454, 217 P.2d at 268. The court in Iacino went on to state that the rear end collision under these circumstances speaks for itself in the sense that the collision would not probably occur in the absence of negligence and “the plaintiff could not reasonably be expected to account for any cause of the accident not within his knowledge.” Id.

The rule of Iacino is clearly applicable here. If, as in Iacino, there is a rebuttable presumption of negligence when a driver collides with the rear of a properly parked vehicle on the traveled portion of a road, that same presumption should apply with even greater force when a driver collides with a vehicle parked some ten to fifteen feet distant from the shoulder portion of the road. It should make no difference whether Bettner’s vehicle collided with the rear or side of Boring’s parked vehicle because in either instance the collision would probably not have been caused if Bettner had been driving on the highway at a safe and reasonable rate of speed under the road conditions existing at the time. The instruction tendered by Boring did no more than tell the jury that the law presumes that Bettner was negligent when she collided with the rear of Boring’s vehicle and that the jury may properly consider that presumption with the other evidence in arriving at a verdict, unless the jury is satisfied that the presumption has been outweighed by other evidence in the case.

I believe that the court of appeals properly resolved this case when it noted that Boring, the plaintiff, by parking his vehicle completely off the road, was more cautious than the plaintiff in Iacino and that it is illogical to deny him the benefit of the instruction on the presumption of negligence simply “because he was more cautious and did move his vehicle farther from the zone of danger.” Boring v. Bettner, 739 P.2d 884, 885 (Colo.App.1987). I would affirm the judgment of the court of appeals.

I am authorized to say that JUSTICE MULLARKEY joins me in this dissent.

1 . One of the instructions tendered by Boring stated that "[i]f a motor vehicle is struck from the rear, the driver striking the vehicle is negligent.” The trial court rejected this instruction, and I believe it was properly rejected, in that the instruction was the equivalent of a directed verdict on liability for the plaintiff.