Kendrick v. Pippin

222 P.3d 380, 2009 Colo. App. LEXIS 1385, 2009 WL 2393130
CourtColorado Court of Appeals
DecidedAugust 6, 2009
Docket08CA1487
StatusPublished
Cited by5 cases

This text of 222 P.3d 380 (Kendrick v. Pippin) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kendrick v. Pippin, 222 P.3d 380, 2009 Colo. App. LEXIS 1385, 2009 WL 2393130 (Colo. Ct. App. 2009).

Opinions

Opinion by

Judge J. JONES.

This is a personal injury case arising out of an automobile accident. A jury found that defendant, Holly L. Pippin, was not negligent in causing the accident, in which her pickup truck struck the car of plaintiff, Cheryl A. Kendrick. Ms. Kendrick appeals, contending that the district court erred when it (1) gave the jury a "sudden emergency" instruction because there was no competent evidence of a sudden emergency; (2) failed to give the jury a res ipsa loquitur instruction because the manner in which the accident occurred gave rise to a presumption that Ms. Pippin was negligent; (3) denied her motion for a new trial because a juror who was an engineer made calculations regarding speed, distance, and reaction time that she shared with the other jurors during deliberations; and (4) limited voir dire to thirty minutes per side because that amount of time was inadequate to question the seventeen prospective jurors. We perceive no error, and therefore we affirm.

I. Background

The accident occurred on the morning of February 10, 2006, at the intersection of 37th Street and Highway 287 (North Garfield Street) in Loveland. It had been snowing for several hours Ms. Kendrick was stopped (because of a red light) in the eastbound left turn lane of 87th Street. As Ms. Pippin was driving her pickup truck southbound on Highway 287, approaching 37th Street, she applied her brakes when the traffic signal turned from green to yellow. Her truck began to slide, and Ms. Pippin realized that she would not be able to stop before the signal turned red. In an effort to avoid colliding with any vehicles entering the intersection, she attempted to make a right turn onto westbound 37th Street. She could not complete the turn, however, and her truck went over the 37th Street center median, striking the driver's side of Ms. Kendrick's car.

Ms. Kendrick sued Ms. Pippin for negligence. A jury found that Ms. Kendrick had incurred injuries, damages, or losses, but that Ms. Pippin was not negligent and that Ms. Pippin's negligence, if any, was not a cause of Ms. Kendrick's injuries, damages, or losses.

II. Discussion

A. Sudden Emergency Instruction

Ms. Kendrick contends initially that the district court abused its discretion by instructing the jury on the sudden emergency doctrine. Specifically, she argues that only Ms. Pippin testified that the ice or snow on the road was unexpected, and that this testimony did not amount to competent evidence supporting the sudden emergency instruction.

The court gave the jury the following instruction on sudden emergency:

A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have [384]*384exercised under the same or similar circumstances.

We review the district court's decision to give a particular jury instruction for an abuse of discretion. Fishman v. Kotts, 179 P.3d 232, 235 (Colo.App.2007). "We will find an abuse of discretion only upon a showing that the court's ruling was manifestly arbitrary, unreasonable, or unfair" City of Brighton v. Palizzi, 214 P.3d 470, 473 (Colo. App.2008).

Under the sudden emergency doe trine, "a person confronted with sudden or unexpected cireumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions." Young v. Clark, 814 P.2d 364, 365 (Colo.1991). The existence of such an emer-geney "is merely a cireumstance to be considered in determining whether the actor's conduct was reasonable," and therefore does not preclude a finding that the actor was negligent. Id.; accord Hesse v. McClintic, 176 P.3d 759, 764 (Colo.2008). The questions whether there was a sudden emergency and, if so, whether the actor was negligent are questions of fact to be determined by the fact finder. Hesse, 176 P.3d at 764; Davis v. Cline, 177 Colo. 204, 208, 493 P.2d 362, 364 (1972); Stewart v. Stout, 143 Colo. 70, 72, 351 P.2d 847, 848 (1960); Vu v. Fouts, 924 P.2d 1129, 1132 (Colo.App.1996).

A party is entitled to have a sudden emergency instruction submitted to the jury "where competent evidence is presented that [the] party was confronted with a sudden or expected occurrence not of the party's own making." Young, 814 P.2d at 369; Davis, 177 Colo. at 208, 493 P.2d at 864-65; Vu, 924 P.2d at 1132. This is so even where the evidence of a sudden emergency is conflicting. See Hetrick v. Dame, 536 P.2d 1153, 1155 (Colo.App.1975) (not published pursuant to C.A.R. 85(f)).

Contrary to Ms. Kendriek's assertion, there was competent evidence that Ms. Pippin was confronted with a sudden emergency. Ms. Pippin testified that she had lived in Colorado her entire life and had almost thirteen years' worth of experience driving in snow and ice. She traveled the same route to work every day and was familiar with the traffic patterns of that route. Immediately prior to the accident, she had driven four miles through seven or eight intersections without losing control of her vehicle or sliding. She knew that it had been drizzling the night before the accident, but thought that the roads were "pretty clear" until she got to the intersection. She was driving at forty miles per hour, below the posted speed limit of forty-five miles per hour.

In light of Ms. Pippin's testimony, the district court properly instructed the jury on sudden emergency. Cf. Stewart, 143 Colo. at 72, 351 P.2d at 848 (sudden emergency instruction appropriate where both parties came upon a patch of ice on a curve of a mountain road and road to that point was dry); Hetrick, 536 P.2d at 1154-56 (sudden emergency instruction appropriate where the defendant's vehicle rear-ended the plaintiffs vehicle on a patch of ice on a slushy and icy road where road was generally snow packed, slushy, and iey in spots). Though Ms. Kendrick contends that Ms. Pippin's testimony was not corroborated by other evidence, she cites no authority for the proposition that such corroboration is required before a sudden emergency instruction may be given. Any discrepancies between Ms. Pippin's testimony and other testimony were for the jury to resolve; such discrepancies, if any, did not dictate that the court refuse to give the jury the instruction.

B. Presumption of Negligence Instruction

Ms. Kendrick next contends that the district court erred when it rejected her proposed jury instruction which, in effect, would have told the jury that Ms. Pippin was presumed to have been negligent.

Ms. Kendrick tendered the following proposed instruction:

"Presumptions" are legal rules based upon experience or public policy and established in the law to help the jury decide the case.
When the driver of a motor vehicle hits another which is stopped, the law presumes that the driver was negligent.

[385]*385We review the district court's rejection of a tendered jury instruction for an abuse of discretion. Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571, 588-89 (Colo.2004).

Ms. Kendrick's proposed instruction purported to be derived from CJI-Civ. 4th 11:12 and Iacino v. Brown, 121 Colo.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vititoe v. Rocky Mountain Pavement Maint., Inc.
412 P.3d 767 (Colorado Court of Appeals, 2015)
Kendrick v. Pippin
252 P.3d 1052 (Supreme Court of Colorado, 2011)
Steward Software Co. v. Kopcho
275 P.3d 702 (Colorado Court of Appeals, 2010)
Kendrick v. Pippin
222 P.3d 380 (Colorado Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
222 P.3d 380, 2009 Colo. App. LEXIS 1385, 2009 WL 2393130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kendrick-v-pippin-coloctapp-2009.