Horton v. Fritz

942 P.2d 134, 113 Nev. 824, 1997 Nev. LEXIS 92
CourtNevada Supreme Court
DecidedJuly 15, 1997
DocketNo. 28216
StatusPublished
Cited by1 cases

This text of 942 P.2d 134 (Horton v. Fritz) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horton v. Fritz, 942 P.2d 134, 113 Nev. 824, 1997 Nev. LEXIS 92 (Neb. 1997).

Opinions

OPINION

By the Court,

Maupin, L:

Appellant Kathy Horton (“Horton”) was injured as a result of an incident that occurred during the early morning hours of November 1, 1992. She claims that she was leaning against a stationary automobile when the driver, respondent Ryan Fritz [826]*826(“Fritz”), a seventeen-year-old minor, suddenly drove forward, causing her to fall and severely fracture her left arm. It is uncontested that Fritz left the scene of the accident without rendering aid or procuring medical assistance.

Horton sued Fritz for negligence and lost at trial. She appeals, claiming that the district court erred by refusing to give her proposed jury instructions regarding the hit-and-run nature of the incident and for instructing the jury that Fritz’s conduct was to be governed by a discrete standard of care applicable to minors. Horton also contends that the trial court’s extrajudicial statements regarding settlement and the merits of the case created a litigation environment so hostile as to warrant reversal.

The facts of the case were vigorously contested. Horton claims that the incident took place at about 2:00 a.m. on the night in question after she noticed Fritz’s car driving by her house in a suspicious manner. She had been drinking and observed the vehicle while she was sitting in a van outside her residence with her “boyfriend.” Another occupant of Fritz’s vehicle, Jamie Renshaw (“Renshaw”), was a friend of Horton’s son and was known to Horton as such. When she recognized her son’s friend, she thought they might be looking for her son or know his whereabouts. She then proceeded to Fritz’s vehicle to inquire about her son and, receiving no response and growing frustrated, started to raise her voice. She also claims that she was leaning on the car during this confrontation when, suddenly and without warning, Fritz rolled up his window and accelerated away, throwing her to the ground. Horton claims that the car paused at the end of the block and drove away. Her friend immediately called for emergency assistance, which ultimately arrived and transported her to the hospital for treatment.

Fritz claims that he and his passengers were trying to find Horton’s house between midnight and 12:30 a.m., when Horton came running and stumbling toward them while yelling and screaming. He further claims that she was hitting the side of his vehicle which, along with the nearby presence of Horton’s boyfriend in the van, frightened him. On the advice of Renshaw, who was also frightened, Fritz pulled away. According to his testimony, it was then that Horton attempted to grab the side mirror and appeared to trip while running alongside the moving vehicle. At the end of the block, he paused to look back, at which time he observed Horton on her feet. He left assuming that she had sustained only minor injuries, that her boyfriend would provide necessary assistance, and that a return might result in a serious confrontation.

DISCUSSION

At the conclusion of the evidence, the court refused to instruct [827]*827the jury that a violation of NRS 484.2191 and 484.223,2 the Nevada “hit-and-run” statutes, constituted negligence as a matter of law and that such violations would require the jury to simply move on to the issue of legal causation of the alleged injuries.

Ordinarily, evidence of leaving the scene of an accident without stopping to render aid or provide information is not probative as evidence of substantive liability for the accident itself. Rather it may be probative as an implied admission of fault or as [828]*828evidence that the victim’s injuries were exacerbated by delay in obtaining medical treatment. See Powell v. Doe, 473 S.E.2d 407, 413 (N.C. Ct. App. 1996) (holding that use of a penal statute as the standard for negligence per se is only appropriate when the hit-and-run driver’s failure to stop and render aid either exacerbated the injury, resulted in unnecessary pain and suffering, or resulted in an avoidable death); see also Cheevers v. Clark, 449 S.E.2d 528, 530 (Ga. Ct. App. 1994).

Here, the trial court properly refused these instructions because the “hit-and-run” feature of the case had nothing to do with basic liability for the accident. Because no separate instructions were offered on the exacerbation or admission issues, we conclude that counsel did so in his tactical approach to the case.3

The court also rejected an instruction advising that leaving the scene of an accident would entitle the jury “to infer that the information which that party would have given at the scene would have been unfavorable to him.” Horton sought this latter instruction on the implication that the unfavorable information would have involved Fritz’s drinking. Because Fritz admitted to imbibing that evening, and because there was no contest in the evidence as to whether his driving had been affected thereby, the trial court properly exercised its discretion in refusing the proffered instruction. Horton also argues that the instruction should have been given under PETA v. Bobby Berosini, Ltd., 110 Nev. 78, 90, 867 P.2d 1121, 1128 (1994) (PETA I), which held that “the failure of a party to produce evidence on an issue peculiarly within his own knowledge raises an inference that the concealed information is unfavorable.” The record does not confirm that the instruction was designed to facilitate an argument that Fritz should have been presumed to have concealed other information beyond his drinking prior to the incident. Thus, there was no further basis for reading the proposed presumption instruction to the jury.

Over Horton’s objection, the judge read the following instruction on standard of care:

A minor is not held to the same standard of conduct as an adult. He is only required to exercise the degree of care which ordinarily is exercised by minors of like age, intelligence and experience under similar circumstances. It is for you to determine whether the conduct of the defendant was [829]*829such as might reasonably have been expected of a minor of his age, intelligence and experience, acting under similar circumstances.

Horton contends that this instruction improperly lessened the standard of care by creating a separate, less rigorous, standard for minor operators of motor vehicles. The judge, in ruling on the instruction, noted that Fritz was not accused of violating the Nevada traffic code. He stated “[I] think the primary thrust of this accusation of negligence is his judgment under the circumstances of driving away in a manner that put someone in danger.” (Emphasis added.)

Fritz argues that the instruction was designed to fit his theory of the case that a minor could reasonably act as he did in this confrontation with adults. He also argues that this instruction merely supplements the general standard of care instruction that was also read to the jury and which articulated the doctrine governing the operation of a motor vehicle by any driver regardless of age. We disagree.

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Bluebook (online)
942 P.2d 134, 113 Nev. 824, 1997 Nev. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horton-v-fritz-nev-1997.