Short v. Spring Creek Ranch, Inc.

731 P.2d 1195, 1987 Wyo. LEXIS 391

• Court: Wyoming Supreme Court
• Decided: January 30, 1987
• Docket: 85-241
• Status: Published

Opinions

THOMAS, Justice.

In this appeal from an adverse jury verdict in a personal injury action Clarence and Janet Short assert as an initial issue the refusal of the trial court to instruct the jury that violation of a statute regulating traffic constitutes negligence per se, and they argue that an instruction that such a violation is evidence of negligence is improper. The other issue raised by the Shorts is a contention that the trial court committed reversible error when it refused to reread portions of the trial testimony to the jury after a request for such assistance had been made by the jury during the course of its deliberations. We hold that the trial court did not commit error in either respect, and we affirm the judgment of the trial court.

This action was commenced by a complaint filed by the Shorts seeking damages from Spring Creek Ranch, Inc. (Spring Creek) and Carroll Esterholt, an employee of Spring Creek.¹ The Shorts alleged that Spring Creek had a duty to construct and maintain roadways within the boundaries of its properties and that it was negligent in failing to perform this duty. More specifically, the Shorts alleged that Spring Creek had failed to maintain the roadway and repair defects in it and had failed to properly plow snow off the roadway. The Shorts alleged that the failure to perform these duties caused a collision between the Shorts’ vehicle and a snowplow driven by Esterholt resulting in numerous injuries to each of the appellants. Esterholt was charged with negligence in his operation of the snowplow. Spring Creek and Esterholt contended that any injuries suffered by the Shorts were attributable to the negligence of Clarence Short which was alleged to be at least equal to or greater than the negligence of Spring Creek and Esterholt. In its verdict the jury apportioned negligence as 50 per cent to the Shorts and 50 per cent to Spring Creek and Esterholt. Apparently there was no contention that Janet Short was not bound by any negligence of Clarence. Following the verdict a judgment was entered that the Shorts take nothing by virtue of their claims. Their appeal is taken from that judgment.

The Shorts have not provided a statement of issues on appeal in their brief as required by Rule 5.01, W.R.A.P. They have set forth two arguments which articulate the issues in the following language:

“Where there is evidence produced at trial from which a jury could conclude that there has been a violation of a statute concerning operation of a motor vehicle should the trial court adopt the legislative standard of care and instruct the jury that such violation is negligence per se?

“May the trial court properly refuse the request of a jury which, during deliberation, asks that specific critical trial testimony be reread to them?”

The statement of the issues submitted by the appellees is:

“A. Whether the trial judge properly refused appellant’s Proposed Instruction No. 3.

“B. Whether the trial judge properly refused to rehash testimony for the jury after the jury retired for deliberation.”

In submitting the case to the jury the trial court instructed:

“Violation of a statute is evidence of negligence. If you determine that a party violated a statute on the occasion in question and that the violation was a proximate cause of the occurrence, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was negligent at the time of the occurrence.”

The Shorts’ initial contention is that this instruction is erroneous. They rely on Distad v. Cubin, Wyo., 633 P.2d 167 (1981), and the instruction which the Shorts submitted in this regard reads:

“Now these statutes were passed for the protection of the driving public. Each of the statutes establishes a standard of conduct that must be met by each and every driver of a motor vehicle for the safety and protection of other users of the road.

“If you find, from a consideration of all the evidence before you, that one or more of these statutes were violated then you can conclude that the standard of conduct established by that statute was not met.

“Violation of one or more of these statutes under the circumstances of this case is negligence per se. Distad v. Cubin, 633 P.2d 167 (Wyo.1981); Restatement, Torts 2d, §§ 286, 287, 288, 288A, 288B and 288C.

“If you find that either Defendant violated any of the statutes that I have read to you in these instructions and that the violation was a proximate cause of Plaintiff Lee Short and Janet Short’s injuries, then you must find for the Plaintiffs on the issue of liability and proceed to assess damages in accordance with my instructions to you.”

The appellants read far too much into this court’s opinion in Distad v. Cubin, supra. That decision cannot be interpreted as the adoption of a negligence per se standard by this court. We there held that the trial court did not err in refusing to instruct the jury that violations of state or federal regulations constituted negligence per se, and we approved an instruction to the effect that the failure to comply with such regulations is evidence of negligence'. We did adopt the view of the Restatement (Second) of Torts (1965) [hereinafter cited as Restatement 2d],

“We accordingly conclude that, as to questions of negligence, the effect of a violation of statute, ordinance, or regulation which defines a standard of conduct will be resolved under the Restatement, Torts 2d. The pertinent sections of the Restatement, Torts 2d, include §§ 286, 287, 288, 288A, 288B, and 288C.” Distad v. Cubin, supra, 633 P.2d at 175.

If we were to resolve this case in accordance with the provisions of the Restatement 2d, we would focus first upon § 286 which provides:

“The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

“(a) to protect a class of persons which includes the one whose interest is invaded, and

“(b) to protect the particular interest which is invaded, and

“(c) to protect that interest against the kind of harm which has resulted, and

“(d) to protect that interest against the particular hazard from which the harm results.” (Emphasis added).

We recognized in Distad v. Cubin, supra, that this provision relies upon judicial discretion “by its use of the words ‘may adopt as the standard of conduct * * Dis-tad v. Cubin, supra, at 176. See Restatement 2d § 286 comment d. We followed that point by stating a later conclusion that “[w]hen the facts represent a conglomeration of circumstances such as here in order to reach application of the statutory or regulatory violation, use of the negligence per se doctrine is not desirable.” Distad v. Cubin, supra, at 179.

What this court said in Distad v. Cubin, supra, is consistent with a choice which is compelled in any given case by the policy tension that exists between the so-called negligence per se and the so-called evidence of negligence rules. The thrust of the negligence per se rule is that a legislative or administrative rule fixes a standard for all members of the community which does not require a specific interpretation by the jury, and thus certainty is promoted. The advantages of the evidence of negligence rule are perceived to be that not all statutes and rules are appropriate, and some are obsolete; it may be unrealistic to conclude that all reasonable people will blindly obey all statutes or administrative rules in all circumstances; and the law should not prevent the jury from assuming its usual and historic function of determining whether, in the light of their common experiences, the person charged with negligence failed to act as a reasonable person would act. See F. Harper, F. James and 0. Gray, The Law of Torts, § 17.6 (2d ed. 1986). These conflicting policy arguments prompted Professor Morris to say:

“Often, after the duty problem is settled, a criminal proscription operates as a desirable, more exact standard that smooths up civil procedure. Nevertheless there are many situations in which substitution of the criminal proscription for the reasonably-prudent-man criterion effects substantive change — either because the particular case entails special facts or because the judgment of the legislature is misguided. Then use of the proscription will warp the policy of basing liability on fault. * * * ” The Role of Criminal Statutes in Negligence Actions, 49 Columbia L.Rev. 21 at 47 (1949).

Courts should refrain from an inflexible application of the negligence per se rule because of the impact that may have upon the traditional policy of premising liability on fault. The approach of the Restatement 2d is consistent with such restraint. See Reporter’s Notes in Appendix to the Restatement 2d, § 286, at 346-347 (1966). Following the Restatement 2d approach we find: (1) the standard defined by legislation or administrative rule should only be adopted when the four criteria of § 286, Restatement 2d, are met; (2) the excused violation of the legislative enactment or administrative rule is not negligence (a non-exclusive list of excused violations is encompassed in § 288A, Restatement 2d); and (3) even if the court finds that the criteria of § 286 are met, it is not required to adopt the legislative enactment as the standard of conduct because of the permissive language of the Restatement 2d. Distad v. Cubin, supra.

In Distad v. Cubin, supra, this court referred to decisions by the Supreme Court of Alaska. That court first adopted the Restatement 2d approach in Ferrell v. Baxter, Alaska, 484 P.2d 250 (1971), but it has since modified the expansive application of any rule of negligence per se. Clabaugh v. Bottcher, Alaska, 545 P.2d 172 (1976). The court in Alaska has recognized that it is appropriate in the normal situation to adopt the statutory command as the standard of reasonableness, but that should not be done if the traffic law is so obscure, oblique, or irrational that it could not be said as a matter of law to provide an appropriate standard. Furthermore, that court has said that the statutory standard should not be substituted if the statute is somewhat obscure or unknown to the general public. McLinn v. Kodiak Electric Association, Inc., Alaska, 546 P.2d 1305 (1976). In other contexts that court has followed the analysis of the Ohio Supreme Court in Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), and held that in order to invoke the statute or regulation as a standard the statute or regulation must prescribe or proscribe specific conduct. Using the statute or regulation as a standard is not appropriate if it sets out only a general or abstract standard of care. Clabaugh v. Bottcher, supra; Northern Lights Motel, Inc. v. Sweaney, Alaska, 561 P.2d 1176, aff’d on reh. 563 P.2d 256 (1977).

It is important to recognize that the labels “negligence per se” and “evidence of negligence” address this issue much too broadly. All that those labels describe is the duty element of a cause of action for negligence. The Restatement 2d approach does not in any way treat with the question of the causal connection between a violation of the statute or regulation and harm to the plaintiff, nor any defense of negligence on the part of the plaintiff. Furthermore, it does not really describe the breach of duty element of the cause of action. These questions as well as others are within the province of the jury’s prerogative to determine the facts. In this instance, however, the essential reason that the Restatement 2d approach would not be helpful to the appellants is because of our holding in Distad v. Cubin, supra, that in those eases in which the facts represent a conglomeration of circumstances it is not appropriate to invoke a statutory standard as the standard of care.

We said earlier that if we were to resolve this case in accordance with the provisions of the Restatement 2d we would address the issue in a particular way. We do not decide it in the context of the Restatement 2d, however, because the Shorts’ reliance upon Distad v. Cubin, supra, cannot be accepted in the light of the deficiency of the record in this case.

Our rule is that a party is entitled to have a jury instruction upon its theory of the case but only if such theory is supported by competent evidence and a proper request for the instruction is made. Langdon v. Baldwin-Lima-Hamilton Corporation, Wyo., 494 P.2d 537 (1972). The appellant must present a record upon which this court can base a decision, and the failure to provide a transcript of the evidence presented at the trial limits this court to addressing those allegations of error which do not require an inspection of the transcript. Salt River Enterprises, Inc. v. Heiner, Wyo., 663 P.2d 518 (1983); Matter of Manning’s Estate, Wyo., 646 P.2d 175 (1982); Minnehoma Financial Company v. Pauli, Wyo., 565 P.2d 835 (1977); Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979); Wydisco, Inc. v. McMahon, Wyo., 520 P.2d 218 (1974). Appellants’ argument in this case depends upon the presence of competent evidence to support the request for an instruction on negligence per se. An examination of the evidence is critical in determining whether there was an abuse of the discretion vested in the trial court with respect to the giving of such an instruction. The appellants have not included a transcript of the evidence in this record, and without the transcript we are unable to address the claimed instructional error. Appellants simply have failed to meet their burden of establishing error with respect to this issue.

In addition, our rule requires that proper instructions should be clear declarations of the law, and an instruction which is offered but which is subject to a construction which is not consistent with the law should be refused. Edwards v. Harris, Wyo., 397 P.2d 87 (1964). The instruction which the appellants offered in this case refers only to violations of traffic statutes by the defendants, and states that if such a violation is a proximate cause of the plaintiffs’ injuries, then the jury must find for them. The pleadings suggest that Clarence Short may have violated some of the same traffic statutes. Any breach of the same statute by the Shorts must be given the same effect as a breach by the defendants. Even if an unexcused violation of a statutory enactment is labeled negligence per se that means only that a statutory duty has been recognized, and a violation if found is a breach of the duty. “There will still remain open such questions as the causal relation between the violation and the harm to the plaintiff, and, in the ordinary case, the defenses of contributory negligence, * * Prosser and Keeton on the Law of Torts, § 36 at 230 (5th ed. 1984). It is clear that the instruction offered by the Shorts was incorrect and incomplete, and the trial court properly refused to give it for those reasons.

The Shorts’ other claim of error relates to the refusal of the trial court to reread portions of the trial testimony to the jury when request was made. The Shorts contend that the court may not refuse to respond to a request by the jury that specific trial testimony be reread.

Section 1-11-209, W.S.1977, sets forth the basic rule:

“After the jurors have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court where information upon the matter of law shall be given. The court may give its recollection as to the testimony on the points in dispute, in the presence of or after notice to the parties or their counsel.”

This court stated in Hoskins v. State, Wyo., 552 P.2d 342, reh. denied 553 P.2d 1390 (1976), cert, denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977), that while the trial court may refresh the memory of jurors pursuant to the statute it is not required to do so. We said there that the decision of the trial court to refuse to again present testimony under the statute, “is not ground for reversal except in the case where it is clear that an injustice had been done.” Hoskins v. State, supra, at 349, citing State v. Riggle, 76 Wyo. 1, 298 P.2d 349, reh. denied 76 Wyo. 1, 300 P.2d 567 (1956), cert, denied 352 U.S. 981, 77 S.Ct. 384, 1 L.Ed.2d 366 (1957). Other states have statutes which direct that the trial court must give the information requested, but other forms of statute, like the one in Wyoming, permit the trial court to invoke its discretion with respect to whether it should grant or deny a request by the jury. See 76 Am.Jur.2d Trial § 1043 (1975). Given a statute like ours the denial by the court of a request for rereading testimony is subject to review under an abuse of discretion standard. See, e.g., United States v. Sims, 719 F.2d 375 (11th Cir.1983) cert, denied 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984); State v. Jones, 47 N.C.App. 554, 268 S.E.2d 6 (1980). Denials which are premised on the possibility of undue emphasis being placed on some testimony or on the breadth of the jury’s request have been held not to constitute any abuse of discretion. See United States v. Rice, 550 F.2d 1364 (5th Cir.1977), and cases cited therein.

The record in this case demonstrates that the jury sought a number of items including “exact width of the Scout,” “Buzz’s testimony,” “direct on Barbara Thacker,” as well as other testimony. These requests were made after a few hours of deliberation. The trial judge responded by acknowledging that the jury could receive such testimony, but he advised that he had never made testimony available, and that he would give further explanation if the jury so desired. It was at this juncture that the jury attached some specificity to the aspects of the testimony it wished to have repeated. The trial judge then explained that he believed the selection of portions of the testimony placed undue emphasis on those portions. He also explained the procedures that would be involved in furnishing the testimony, and he addressed the possibility of the jury requesting numerous portions and in this way relying upon the judge to settle questions of fact. After giving this explanation the jury’s request was refused.

The Shorts argue that the denial was based only on time considerations, but the trial judge furnished a number of other reasons for his decision. Again, we are inhibited in addressing the issue because we cannot determine the extent of the testimony requested or its importance to any of the key issues. In the absence of a transcript of the evidence we cannot possibly conclude that the district court abused its discretion in denying this request. We understand a trial court should not be arbitrary in denying such requests. See, e.g., People v. Smith, 396 Mich. 109, 240 N.W.2d 202 (1976). The request for review of testimony should be considered and granted or denied in the sound exercise of the trial court’s discretion in the light of the particular circumstances involved in the case. We cannot assess the circumstances of this case without a transcript of the evidence.

The thrust of the Short’s appeal is two claims of abuse of discretion. They have failed to demonstrate an abuse of discretion in the refusal to give an instruction on negligence per se arising out of the violation of a statutory standard. They also have failed to demonstrate an abuse of discretion in denying the jury’s request for rereading of testimony.

The judgment entered by the trial court upon the jury’s verdict is affirmed.

1 . In defining the issues in the district court and describing the proceedings reference is made to the pleadings only because the Shorts did not designate the transcript of the trial proceedings, except for the dialogue relating to the request to have testimony read again, as a part of the record on appeal.