Harmon v. Washburn

2008 SD 42, 751 N.W.2d 297, 2008 S.D. LEXIS 40, 2008 WL 2303499

• Court: South Dakota Supreme Court
• Decided: June 4, 2008
• Docket: 24551
• Status: Published

Opinions

ROEHR, Circuit Judge.

[¶ 1.] Edith G. Harmon (Edith) and Joseph Harmon (Joseph) (collectively Har-mons) brought a negligence action for personal injuries against Anita M. Washburn (Washburn). The trial court denied Har-mons’ motion for judgment as a matter of law on the issue of Washburn’s negligence and on the issue of Edith’s contributory negligence. The jury returned a general verdict denying Harmons’ claim.¹ The trial court then denied Harmons’ renewed motion for judgment as a matter of law and, alternatively, for a new trial. Har-mons appeal the denial of their motions. We reverse and remand.

FACTS

[¶ 2.] On December 23, 2001, Wash-burn was driving the lead vehicle in a caravan of approximately ten vehicles. The caravan traveled south on Highway 34 at approximately ten miles per hour, as it approached a bridge over the Cheyenne River. A line of horseback riders was off to the left of the highway, traveling south, and parallel to the highway. The caravan was traveling in support of the horseback riders. The vehicles in the caravan were separated from each other by a distance of approximately one vehicle length.

[¶ 3.] Edith and her husband, Joseph, were driving separate vehicles south on Highway 34. Joseph was following Edith. Edith saw the caravan from a distance and slowed as she approached it. She noticed the horseback riders to the left of the highway. Edith followed the caravan for a time, then started to pass just before coming to the bridge. Prior to passing, Edith checked for oncoming traffic, checked her mirrors, and used her turn signal to signal her pass. Edith’s vehicle was equipped with daytime running lights. The evidence is disputed as to whether or not the drivers in the caravan had activated their emergency flashers. Edith drove thirty to thirty-five miles per hour as she passed the caravan. She was about to overtake the Washburn vehicle as it was nearing the south end of the bridge.

[¶ 4.] As she neared the south end of the bridge, Washburn wanted to turn off the highway to wait for and meet the horseback riders. Washburn considered turning right off the highway, but decided to turn left onto an approach. The approach was lower than the level of the highway and was not visible from a distance. The vehicles driven by Washburn and Edith collided as Washburn was making the left turn. The evidence is disputed as to whether or not Washburn signaled her left turn. The entire incident took place in a legal passing zone with a sixty-five mile per hour speed limit. Visibility was good and there was no oncoming traffic.

[¶ 5.] After the accident, Joseph transported Edith to an emergency room at a Pierre hospital, where she was examined and had glass removed from an abrasion on her arm. Thereafter, Edith was treated for other alleged injuries.

[¶ 6.] Harmons filed a negligence action for personal injuries against Wash-burn. The action was tried to a jury over two days. Washburn denied her negligence, asserted Edith’s contributory negligence, and contested the nature and extent of Harmons’ injuries. After all the evidence had been presented, Harmons moved for judgment as a matter of law on the issue of Washburn’s negligence and on the issue of Edith’s contributory negligence. The trial court denied the motion. The jury returned a general verdict for Washburn. Harmons then renewed their motion for judgment as a matter of law and, alternatively, for a new trial. The trial court also denied this motion. Har-mons appeal.

ISSUES

[¶ 7.] Harmons raise the following issues on appeal:

Whether the trial court abused its discretion when it denied Harmons’ motion for judgment as a matter of law.

Whether the trial court abused its discretion when it denied Harmons’ renewed motion for judgment as a matter of law and, alternatively, for a new trial.

STANDARD OF REVIEW

[¶ 8.] A trial court’s ruling on a motion for directed verdict is reviewed 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 (additional citations omitted)). “An abuse of discretion occurs when ‘no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Id. (quoting Bridge v. Karl’s Inc., 538 N.W.2d 521, 523 (S.D.1995) (citations omitted)). This Court’s task on appeal, “is to review the record and ascertain whether there is any substantial evidence to allow reasonable minds to differ.” Id. ¶ 11 (citations omitted). “If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate.” Id. ¶ 22 (citation omitted).

[¶ 9.] Likewise, the trial court’s ruling on a motion for judgment notwithstanding the verdict is reviewed under the abuse of discretion standard. Id. ¶ 12 (citing Welch v. Haase, 2003 SD 141, ¶ 19, 672

N.W.2d 689, 696 (citation omitted)). The testimony and evidence are reviewed “in a light most favorable to the verdict or to the nonmoving party.” Id. (quoting Sabag v. Continental South Dakota, 374 N.W.2d 349, 355 (S.D.1985) (citing Ziebarth v. Schnieders, 342 N.W.2d 234, 236 (S.D.1984))). “[Without weighing the evidence [this Court] must decide if there is evidence which would have supported or did support a verdict.” Id. (quoting Sabag, 374 N.W.2d at 355 (citing Corey v. Kocer, 86 S.D. 221, 226-27, 193 N.W.2d 589, 593 (1972))).

[¶ 10.] In 2006 SDCL 15-6-50(a) and (b) were amended. The substantial changes made by this amendment include referring to a motion for directed verdict as a motion for judgment as a matter of law and denominating a motion for judgment notwithstanding the verdict as a renewed motion for judgment as a matter of law. These amendments, however, do not change our standard of review — which remains abuse of discretion. The abuse of discretion standard is also utilized “when reviewing a trial court’s denial of a motion for a new trial.” Christenson, 2004 SD 113, ¶ 13, 688 N.W.2d at 426 (citing Olson v. Judd, 534 N.W.2d 850, 852 (S.D.1995) (citing Treib v. Kern, 513 N.W.2d 908, 911 (S.D.1994))).

DECISION

ISSUE ONE

[¶ 11.] Whether the trial court abused its discretion when it denied Harmons’ motion for judgment as a matter of law.

[¶ 12.] At the close of the evidence Harmons moved for a judgment as a matter of law on the issue of Washburn’s negligence and on the issue of Edith’s contributory negligence. SDCL 15-6-50(a)(1) provides:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

“Only in exceptional cases may the verdict be directed in favor of the party having the burden of proof.” Christenson, 2004 SD 113, ¶ 24, 688 N.W.2d at 428.

“[W]hen the evidence on behalf of the moving party is clear and full, credible and not contradicted, and is so plain and complete that reasonable minds could come to no other conclusion[,]” a motion for directed verdict may be granted. Id. (quoting Langdon v. Reuppel, 81 S.D. 289, 291, 134 N.W.2d 293, 294 (1965)). But if, when viewed in a light most favorable to the nonmoving party, there is any substantial evidence to sustain the cause of action or defense, it must be submitted to the finder of fact. SDCL 15-6-50(a). Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989).

Id.

[¶ 13.] Harmons argue that Washburn’s driving that day violated at least five different South Dakota statutes and that each such violation “constitutes negligence per se.” Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7, 9 (S.D.1974). Concerning the first alleged violation, SDCL 32-26-18.1 provides in pertinent part:

No person may turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required by §§ 32-26-17 and 32-26-18. A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning....

The evidence on this point consisted of the testimony of Harmons, Washburn, and Washburn’s daughter, Amanda Washburn. Both Harmons testified that Washburn did not use her turn signal. Viewing the evidence in the light most favorable to Wash-burn, Washburn’s daughter testified that her mother signaled the left turn fifteen feet before turning; Washburn testified, in effect, that she signaled the turn at most forty-four feet prior to the turn.²

[¶ 14.] Based on the testimony it is undisputed that Washburn violated the statute and was negligent per se. Therefore, we do not address Harmons’ argument regarding the other five statutes violated. It was error for the trial court not to grant a judgment as a matter of law on the issue of Washburn’s negligence.

[¶ 15.] Harmons also sought a judgment as a matter of law that Edith was not contributorily negligent.

Contributory negligence is a ‘breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.’ (quoting Boomsma v. Dakota, Minnesota, & Eastern Railroad Corp., 2002 SD 106, ¶ 34, 651 N.W.2d 238, 245-46 (additional citations omitted)). Where plaintiffs contributory negligence is more than slight compared to defendant’s negligence, plaintiff is barred from recovery. SDCL 20-9-2. 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 (citing Parker v. Casa Del Rey, 2002 SD 29, ¶5, 641 N.W.2d 112, 115).

Johnson v. Armfield, 2003 SD 134, ¶ 10, 672 N.W.2d 478, 481.

[¶ 16.] Edith looked in her mirror and signaled before passing. Her car was equipped with daytime running lights. The day was clear. There was no oncoming traffic. She was in a legal passing zone and passed at thirty to thirty-five miles per hour in a sixty-five mile per hour zone. When Washburn made the left turn, Edith was unable to avoid the accident.

[¶ 17.] Washburn argues that Edith ought not to have passed on a bridge because the guardrails on the left would prevent her from leaving the highway in that direction to avoid an accident. This is tantamount to arguing that no one should ever pass on this bridge because of the guardrail on the left, which completely ignores the fact that it is a legal passing zone. Furthermore, “a motorist has the right to assume that other drivers will obey the rules of the road.” Treib, 513 N.W.2d at 913 (citing Nelson v. McClard, 357 N.W.2d 517 (S.D.1984)).

[¶ 18.] Washburn also argues that Edith was driving too fast. There is no evidence to support this assertion. All the evidence is that Edith was driving thirty to thirty-five miles per hour in a sixty-five mile per hour zone to pass Washburn’s vehicle, which was traveling ten miles per hour.

[¶ 19.] Under these circumstances, passing a caravan, as opposed to one vehicle, is not evidence of contributory negligence. There was no oncoming traffic. Edith successfully passed all the cars in the caravan except the lead vehicle. Whether she was passing a fifty-car caravan or just one vehicle, the accident arose from the manner in which two vehicles were driven — Washburn’s vehicle and Edith’s vehicle.

[¶ 20.] Washburn implies that the caravan and the horseback riders to the left, and by then to the rear, should have caused Edith to reasonably anticipate Washburn’s turn. Washburn offers no further explanation as to why Edith should have anticipated the turn, much less one without a proper signal. Again, Edith had the right to assume Washburn would follow the rules of the road. Id

[¶ 21.] There was no legally sufficient evidentiary basis for a reasonable jury to find Edith contributorily negligent. The trial court erred by not granting the judgment as a matter of law on this issue.

ISSUE TWO

[¶ 22.] Whether the trial court abused its discretion when it denied Harmons’ renewed motion for judgment as a matter of law and, alternatively, for a new trial.

[¶ 23.] After the jury returned its general verdict in favor of Washburn, Harmons renewed their motion for judgment as a matter of law. SDCL 15 — 6— 50(b) provides in pertinent part:

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than ten days after notice of entry of judgment — and may alternatively request a new trial....

[¶ 24.] Our standard of review is abuse of discretion. Christenson, 2004 SD 113, ¶ 12, 688 N.W.2d at 425. In reviewing the renewed motion for judgment as a matter of law, we, again, “review the testimony and evidence in a light most favorable to the verdict or to the nonmoving party.” Id. We must determine, without weighing the evidence, whether there is evidence which would or did support the jury’s verdict. Id.

[¶ 25.] As previously discussed, Washburn was negligent as a matter of law and Edith was not contributorily negligent as a matter of law. However, we must also review the testimony and evidence regarding Harmons’ damages. The jury’s general verdict in favor of Wash-burn would be supported by the evidence if the jury was able to find that Harmons had not incurred damages as a proximate result of the accident.

[¶26.] Edith’s primary claim of damages was an injury to her lower back. Considerable evidence was presented to the jury regarding the nature and extent of the injury and the need for treatment. Washburn strongly disputed this evidence. However, Edith’s damage claim also included the cost of an examination and the removal of glass from an abrasion on her arm at a Pierre hospital emergency room immediately after the accident. This evidence is undisputed. Consequently, Har-mons suffered damages as a proximate result of the accident.

[¶ 27.] The evidence does not support the jury’s verdict. The trial court abused its discretion in not granting the renewed motion for judgment as a matter of law on liability and granting a new trial on damages.

[¶ 28.] We reverse and remand.

[¶ 29.] KONENKAMPand MEIERHENRY, Justices, concur. [¶ 30.] GILBERTSON, Chief Justice, and PORTRA, Circuit Judge, dissent. [¶ 31.] ROEHR, Circuit Judge, for SABERS, Justice, disqualified. [¶ 32.] PORTRA, Circuit Judge for ZINTER, Justice, disqualified.

1 . Washburn counterclaimed against Edith, alleging negligence and personal injuries. The jury returned a general verdict denying Wash-burn’s claim. Washburn has not appealed that verdict.

2 . Washburn testified that she was driving ten miles per hour and signaled two or three seconds prior to the turn. The jury was provided with a mathematical formula to make the computation for distance.