Steffen v. Schwan's Sales Enterprises, Inc. ( 2006 )

KONENKAMP, Justice.

[¶ 1.] Marita Steffen pulled over to the side of the road and stopped to make way for an approaching emergency vehicle. After it passed, but before she started moving again, her car was rear-ended by a delivery truck owned by Schwan’s Sales Enterprises, Inc., and driven by James Koch. At trial, defendant Schwan’s claimed that Steffen was contributorily negligent because she remained stopped too long after the emergency vehicle had passed. Over Steffen’s objection, the circuit court gave the jury a contributory negligence jury instruction. Thereafter, the jury, through special interrogatories, found Schwan’s to be negligent and Steffen to be contributorily negligent, but not more than slight. Steffen appeals. We reverse because, under the circumstances of this rear-end collision, there was insufficient evidence to justify submitting the issue of contributory negligence to the jury.

Background

[¶ 2.] On April 21, 2001, Steffen was driving on Cliff Avenue in Sioux Falls, South Dakota. Cliff Avenue runs north and south and has four lanes, but no shoulder. While Steffen was proceeding south, she was met by an emergency vehicle with its lights on and siren sounding. Steffen responded by pulling her vehicle over and stopping in the far west driving lane. Other cars in front of her did the same. While the emergency vehicle was passing, Steffen testified that she looked in her rearview mirror and saw a Schwan’s delivery truck coming towards her. According to her, the driver was not looking forward, but to the left. Steffen described how she continued to watch the driver as she was “getting a little freaked out. I couldn’t go anywhere. There was a car like in front of me and a car in front of him that had all pulled over.” Shortly thereafter, Koch’s delivery truck struck Steffen’s car causing property damage and bodily injuries to Steffen.

[¶ 3.] Koch testified that he was driving south on Cliff Avenue when the emergency vehicle approached with its lights on and siren sounding. He, like Steffen, described how cars were pulling over in the far west lane. But Koch could not relate exactly whether he slowed down to pull over or actually pulled over and stopped. He said that during the time he was either stopping or trying to stop, he looked to his left for the emergency vehicle. According to Koch, he noticed that the emergency vehicle had passed by him, so he proceeded to move forward. At this point, he saw that Steffen was still stopped in the driving lane. Koch testified that he tried to avoid hitting Steffen, but there was a vehicle to his left and a street post to his right. Because he could not stop in time, he rear-ended Steffen’s car.

[¶ 4.] At trial Schwan’s asserted that Steffen was contributorily negligent because Koch testified that Steffen was still stopped even though the emergency vehicle had passed. Steffen requested a directed verdict on the issue of Koch’s negligence and the lack of her contributory negligence. The circuit court denied Stef-fen’s motions. Moreover, the court allowed, over Steffen’s objection, jury instructions on contributory and comparative negligence.

[¶ 5.] Through special interrogatories, the jury found that Koch was negligent and that his negligence was the legal cause of Steffen’s injuries. The jury also found that Steffen was contributorily negligent, not more than slight, and reduced her award accordingly. Ultimately, the jury awarded Steffen $4,250 in medical care, treatment, and services rendered, and $2,500 for pain and suffering, mental anguish, and loss of capacity of the enjoyment of life experienced up to the date of the verdict. No damages were awarded for a bonus she claimed she lost as a result of the accident. Steffen later moved for a judgment notwithstanding the verdict and for a new trial. The court denied her motions and entered a judgment based on the jury award.

[¶ 6.] Steffen appeals on the grounds that the circuit court erred when it denied her motion for a directed verdict and instructed the jury on the issue of contributing negligence. By notice of review, Schwan’s appeals the denial of its motion in limine on the question of Steffen’s claimed lost bonus.

Standard of Review

[¶ 7.] We review the circuit court’s decision to deny a motion for directed verdict under the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688 N.W.2d 421, 425 (citing Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶7, 579 N.W.2d 1, 3 (quoting Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460 (additional citations omitted))).

When reviewing refused motions for a directed verdict, we examine the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences fairly drawn from the evidence. Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989); Kreager v. Blomstrom Oil Co., 379 N.W.2d 307, 310 (S.D.1985); Koupal & Anton, Inc. v. Wieczorek, 375 N.W.2d 639, 640 (S.D.1985). If there is any substantial evidence to sustain the cause of action or defense, it must be submitted to the finder of fact. BankWest, Inc. v. Valentine, 451 N.W.2d 732, 734 (S.D.1990); Denke, 437 N.W.2d at 207.

Robbins v. Buntrock, 1996 SD 84, ¶ 16, 550 N.W.2d 422, 427. See also Christenson, 2004 SD 113, ¶¶ 10-11, 688 N.W.2d at 425; Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 36, 557 N.W.2d 748, 759.

[¶ 8.] With respect to jury instructions, our standard of review requires us to construe them as a whole to find “if they provided a full and correct statement of the law.” First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citations omitted). A party challenging jury instructions has the burden of establishing that they were both erroneous and prejudicial. Id. (citing State v. Moschell, 2004 SD 35, ¶54, 677 N.W.2d 551, 567). “An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.” Id. (citing Carpenter v. City of Belle Fourche, 2000 SD 55, 609 N.W.2d 751).

Analysis and Decision

[¶ 9.] We first address whether the circuit court abused its discretion when it denied Steffen’s motion for a directed verdict on the issue of negligence. Steffen asserts that she was required to stop for the emergency vehicle, and because she was legally stopped, Koch was negligent when he rear-ended her car. On reviewing a motion for a directed verdict, we must determine whether the record contains sufficient evidence to sustain the action, viewed in the light most favorable to the nonmoving party. SDCL 15 — 6—50(a); Christenson, 2004 SD 113, ¶ 22, 688 N.W.2d at 427. While other jurisdictions have adopted a presumption of negligence in rear-end accidents, we have so far declined to do so. Christenson, 2004 SD 113, ¶ 33, 688 N.W.2d at 429. “Instead we have required a plaintiff to plead and prove the negligent conduct of the defendant in a rear-end automobile collision.” Id. “As we have often recognized, the mere fact an accident happened creates no inference that it was caused by someone’s negligence.” Carpenter, 2000 SD 55, ¶ 14, 609 N.W.2d at 759 (citing Del Vecchio v. Lund, 293 N.W.2d 474, 476-77 (S.D.1980)). Thus, we cannot say that the circuit court erred when it denied Steffen’s motion for a directed verdict.

[¶ 10.] Steffen next asserts that the circuit court erred when it allowed the issue of contributory negligence to go to the jury. Accordingly, we must determine if there was evidentiary support for an instruction on contributory negligence. Johnson v. Armfield, 2003 SD 134, ¶ 7, 672 N.W.2d 478, 481 (citations omitted). “As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury.” Id. ¶ 10 (citation omitted). Further, we require a party challenging a jury instruction to show that “in all probability [it] produced some effect upon the jury’s verdict and [was] harmful to the rights of the party assigning it.” Christenson, 2004 SD 113, ¶ 29, 688 N.W.2d at 428-29 (quoting Kjerstad v. Ravellette Publ’n, Inc., 517 N.W.2d 419, 426 (S.D.1994) (citation omitted)).

[¶ 11.] Both parties testified that they were driving south on Cliff Avenue when they encountered an emergency vehicle going in the opposite direction with its siren sounding and lights flashing. Cliff Avenue does not have a shoulder for vehicles to pull on to, so both parties used the far west driving lane. But, then Koch claims he resumed travel after he looked out to his left and saw that the emergency vehicle had proceeded past him. Steffen described how she was stopped and noticed the Schwan’s truck in her rearview mirror coming towards her, but she could not go anywhere because there were two vehicles in front of her. At some point, Koch noticed that Steffen was still stopped and tried to avoid hitting her, but rear-ended her vehicle. The only evidence offered on the issue of contributory negligence came from Koch. At best, his testimony is equivocal on whether he ever actually stopped in response to the emergency vehicle and before striking Steffen’s car.¹

[¶ 12.] “Contributory negligence is negligence on the part of a plaintiff which, when combined with the negligence of a defendant, contributes as a legal cause in the bringing about of the injury to the plaintiff.” S.D. Pattern Jury Instruction 11-01. From our review of the record, we conclude that there was insufficient evidence of contributory negligence. First, both Steffen and Koch had a legal duty under SDCL 32-31-6 to pull over and stop when the emergency vehicle approached with its lights flashing and siren sounding. When Steffen stopped her vehicle in the far west driving lane, she did so lawfully. Second, Koch admitted he was aware that the vehicles ahead of him were pulling over and slowing because of the emergency vehicle. Third, in resuming travel, Koch had a duty to observe all the rules of the road. Whether the emergency vehicle had in fact proceeded past Koch and Stef-fen did not excuse his duties as a driver. It was Koch who made the conscious decision to resume travel. He knew that a car had been in front of him.

[¶ 13.] When we examine Steffen’s conduct, we find nothing to support contributory negligence. It is critical to recap a portion of her testimony:

Q. Wait a minute. How could you see the Schwan’s guy?

A. In my rearview mirror, I was parked, I was looking out and I saw him and he was not watching the road and the next thing—

Q. Where was he looking?

A. To his left.

Q. Okay. Did you continue' to watch him?

A. Yeah. I was getting a little freaked out. I couldn’t go anywhere. There was a car like in front of me and a car in front of him that had all pulled over.

Q. Then what happened?

A. He hit me.

Steffen could not have moved forward because there were still two stationary vehicles in front of her. Koch never contradicted this. He testified generally that “when traffic started to move” he proceeded, and only then “noticed that Miss Stef-fen was still in the road, not moving....”² Defense counsel argued in closing that traffic cannot “be stopped indefinitely in the driving lane.” (Emphasis added). But closing arguments are not evidence. Koch himself gave no testimony on time.or distance. In fact, when he was specifically asked how far he was from Steffen’s vehicle when he turned his attention back to the road after the emergency vehicle had passed, he responded, “I don’t remember.” It was Koch’s burden to prove contributory negligence. On this record, his proof was insufficient.

[¶ 14.] Drivers following other vehicles have a duty to use reasonable care to so regulate their vehicles as to prevent rear-end collisions. McDonnel v. Lakings, 78 S.D. 195, 99 N.W.2d 799, 801 (1959). Indeed, SDCL 32-26-40 provides, in part:

The driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and condition of the highway.

There were no unexpected road conditions that might excuse Koch’s failure to stop. See Weber v. Bernard, 349 N.W.2d 51 (S.D.1984). He testified that the road was wet, but he knew that long before the collision. After lawfully stopping in response to an emergency vehicle, drivers should not be held contributorily negligent merely because they fail to resume travel fast enough to avoid being rear-ended.

[¶ 15.] For the safety of the public and for the absolute enablement of life saving emergency services, all vehicles are required by law to “immediately” pull over, “stop,” and “remain in such position ... until the authorized emergency vehicle shall have passed.” SDCL 32-31-6. How soon vehicles can resume travel will depend on a variety of factors, but drivers following behind other vehicles must remain observant of the vehicles ahead of them. SDCL 32-26-40. We have expressed doubt before about this Court’s decision in Nichols v. Morkert, 85 S.D. 384, 182 N.W.2d 324 (S.D.1971). See Weber, 349 N.W.2d at 54 n. 1 (Nichols’ result questionable). In Nichols, a driver lawfully stopped at a traffic light was rear ended by another vehicle. 85 S.D. at 385, 182 N.W.2d at 324. This Court upheld a jury verdict of no negligence on the part of the offending driver. Id. at 386, 182 N.W.2d at 325. But this is a different matter. It is one thing to say that a person rear-ending another vehicle can be found not negligent in the crash; it is entirely another thing to hold that a person lawfully stopped can be held contributorily negligent in being struck from behind.³ No authority has been cited to us to support such a proposition. All the cases Koch cites involve rear-end collisions with vehicles unlawfully and unexpectedly obstructing the road.

[¶ 16.] The circuit court erred in allowing the issue of contributory negligence to go to the jury. Steffen was clearly prejudiced by this error. Through special interrogatories, the jury specifically found her to be contributorily negligent. As a result, the jury was required to reduce Steffen’s award in relation to her negligence. SDCL 20-9-2. Because Steffen has established error and prejudice in the court’s instructions, she is entitled to a new trial.

[¶ 17.] Finally, we address Schwan’s notice of review issue: whether the court erroneously allowed Steffen’s claim that she lost bonus wages as a result of this accident. The jury did not award Steffen damages on her lost bonus claim. But because this issue will likely be raised on retrial, we address it now. See Grajczyk v. S.D. Bd. of Pardons and Paroles, 1999 SD 149, ¶ 4, 603 N.W.2d 508 n2, 603 N.W.2d 508, 510 n2 (citing Wolff v. Sec’y of S.D. Game, Fish, and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537).

[¶ 18.] Before Steffen was permitted to testify about her lost bonus claim, the circuit court listened to her proposed testimony out of the presence of the jury. Steffen testified that she had worked for Genex for about two years before the accident. She further indicated that during those two years she did not receive bonus wages from Genex. But, she said that this was because Genex was a new company in South Dakota and she was in the process of building clientele. By the time she was in the accident, Steffen alleged that she had developed a sufficient customer base and would have earned bonus wages from Genex. Her injuries prevented her from being able to handle her case load and she had to hire additional help. Thus, Steffen argued that her bonus was lost because of the injuries she sustained in this accident.

[¶ 19.] The circuit court allowed Steffen to present her claim, over Schwan’s objection, and we review this evidentiary ruling under the abuse of discretion standard. See Von Sternberg v. Caffee, 2005 SD 14, ¶ 13, 692 N.W.2d 549, 554 (citing In re Estate of Dokken, 2000 SD 9, ¶ 39, 604 N.W.2d 487, 498). On our review of the record, we find there was a sufficient basis for allowing this issue to go to the jury and the circuit court did not abuse its discretion.

[¶ 20.] Affirmed in part, reversed in part, and remanded for a new trial.

[¶ 21.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, and MILLER, Retired Justice, concur. [¶ 22.] ZINTER, Justice, concurs in part and dissents in part. [¶ 23.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

1 . The following is the entirety of Koch's examination bearing on the question of contributory negligence:

Examination by plaintiff's counsel:

Q.Okay. As you were driving south on North Cliff, it's north of Ninth Street, was there an emergency vehicle coming towards you?

A. It was an ambulance.

Q. Did it have the lights on?

A. Yes.

Q. Was the siren blowing?

A. Yes, I believe so.

Q. Were vehicles in front of you pulling over to the curb and stopping?

A. Yes.

Q. When did the ambulance meet and pass you before the accident happened?

A. The ambulance was coming at me.

Q. You met the ambulance before the collision occurred?

A. Yes.

Q. And when the ambulance went by, did you look at it?

A. As — I glanced as it was coming up on me.

Q. Were you slowing down at the time?

A. Yes.

Q. The vehicle in front of you was also slowing down?

A. I believe so, I was looking for the ambulance and trying to pull over out of the traffic.

Q. I see. Did you look out the window to observe the passing emergency vehicle?

A. I believe so. I just glanced at it.

Q. Then when you turned your attention back to the road, that is when you realized you were going to be in an accident?

A. No.

Q. Were you in an accident?

A. Yes.

Q. When you took your attention back to the road, how far were you from the vehicle with your truck?

A. I don't remember. No.

Q. Did the police come to investigate the accident?

A. Yes, they did.

Q. Did the police officer ask you what happened?

A. Yes, he did.

Q. Did you tell him?

A. Yes, I did.

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A. I believe I told the police officer when I saw the oncoming vehicle, the ambulance coming by, I slowed down, pulling off of traffic, I was almost stopped, proceeded to go south on Cliff and then I noticed that Ms. Steffen was still in the road, not moving and I tried to stop my vehicle and I couldn’t stop in time.

Examination by defense counsel:

A. When I was driving down the hill I saw an emergency vehicle go by me. I immediately pulled over and stopped or tried to stop and then when traffic started to move, I pulled back on the road and proceeded to move again.

Q. And what happened next?

A. I noticed that Miss Steffen was stopped in the roadway, and I tried to stop as best I could and there was a vehicle in the left lane and there was the post on the shoulder, like a street post, so I couldn't swerve over there. So I stopped the best I could and I couldn't quite stop and ran into Miss Steffen.

Q. When you noticed she was still sitting in the roadway, had the emergency vehicle already passed by?

A. Yes, it was.

2 . The generality of the assertion “traffic started to move” cannot obscure the fact that "traffic” directly in front of Koch was not moving, i.e., Steffen's car.

3 . Because the requirement to stop and pull over for emergency vehicles is absolute, there is some correlation here with rear end collision cases where automobiles are stopped at traffic signs or signals. Bonica v. Gracias, 84 Wash.2d 99, 524 P.2d 232 (1974) (where stops can be anticipated, even abrupt stops, no contributory negligence instruction should be given); Taylor v. Culpepper, 208 So.2d 176 (Miss.1968) (plaintiff driver rear ended at traffic light — trial court erroneously gave contributory negligence instruction — -judgment reversed). An instruction on contributory negligence should be limited to instances where the rear ended driver stopped both unexpectedly and unwarrantedly. Moore v. Fischer, 31 Colo.App. 425, 505 P.2d 383, 386 (1972) ("To constitute contributory negligence, a sudden stop by a driver of a car struck from the rear must be both abrupt and unwarranted. ”).