Smith Ex Rel. Smith v. Angell

830 P.2d 1163, 122 Idaho 25, 1992 Ida. LEXIS 64

• Court: Idaho Supreme Court
• Decided: March 26, 1992
• Docket: 18674
• Status: Published

Opinions

BAKES, Chief Justice.

Defendants Kayla Angelí, a minor, and her parents, Gary and Sondra Angelí, appeal from the judgment entered against them in this wrongful death action brought by the estate of the deceased, Kenneth E. Smith, and his two children, Shawn and Jesse Smith. Plaintiffs’ cross appeal was voluntarily dismissed.

On July 8, 1988, at approximately 6:45 p.m., Kenneth E. Smith was driving his motorcycle south, along the inside lane (next to the center turn lane) of Yellowstone Avenue, a four-lane street, in Pocatello, Idaho. Fifteen-year old Kayla Angelí, who was driving her parents’ 1979 pick-up truck with their permission, was leaving a fast food restaurant located on the west side of Yellowstone Ave. Before exiting the restaurant parking lot and entering Yellowstone Ave. to proceed north, Angelí looked to her left (north) and observed a Ford Bronco coming south in the outside lane. She did not see Smith’s motorcycle behind the Bronco in the inside lane because her view of it was obstructed by the Bronco. She then looked to her right (south), and saw traffic proceeding toward her along the outside northbound lanes of Yellowstone Ave. After the Bronco passed, and without looking again to her left, she entered Yellowstone Ave. and collided with Smith’s motorcycle. Smith died a very short time after as a result of massive trauma to his chest sustained in the collision. A passenger on Smith’s motorcycle was injured.

On May 8, 1989, Smith’s estate and children filed a complaint for wrongful death, alleging that Kayla Angell’s negligence caused the collision. The defendants filed an answer on July 25, 1989, denying negligence and affirmatively alleging that Smith had been contributorily negligent. The plaintiffs filed a motion for partial summary judgment, seeking a ruling that Angelí was negligent per se and that Smith had no comparative negligence. The trial court denied the motion, concluding that a genuine issue of fact existed regarding both Smith’s and Angell’s negligence. The case proceeded to trial on February 26, 1990.

At trial, the parties stipulated that Kenneth Smith was travelling below the speed limit of thirty-five miles per hour at the time of the collision and that the headlight of his motorcycle was turned on. They also stipulated that the Bannock Regional Medical Center toxicology reports concluded that Smith had not ingested alcohol or drugs the day of the collision.

The evidence was conflicting over whether Smith’s motorcycle ran into the left front of the pickup or whether the pickup ran into the right front side of the motorcycle. Kayla Angelí testified that she did not know exactly what happened because she did not see the motorcycle until after the collision occurred. The passenger riding with Smith on the motorcycle suffered injuries and could not even recall the accident. Both sides offered testimony of bystanders who were at the scene at the time of the accident and testimony of expert witnesses who presented theories of accident reconstruction and reaction times. The plaintiffs’ expert testified that Angelí ran into Smith, and, in his opinion, Smith had no opportunity to react to avoid Angell’s vehicle. The defendants’ expert testified that Smith ran into Angelí and should have seen the truck in front of him and could have avoided the accident if he had been paying attention.

The jury returned a verdict for the plaintiffs, finding Angelí one hundred percent at fault and no comparative negligence on Smith’s part. The jury awarded a total of $325,766 to the plaintiffs. The district court awarded prejudgment interest on $100,000 of the verdict¹ and additional interest on the total jury award from the date of the special verdict to the date of the final judgment. The court also awarded the plaintiffs costs and attorney fees equal to twenty-five percent of the total jury award. The district court based its award of attorney fees on its conclusion that the defendants’ refusal “to settle this matter for policy limits was frivolous, unreasonable and without foundation as was the defense offered by defendants in this matter.”

On appeal, defendants contend that the trial court erred in instructing the jury regarding presumptions, by awarding attorney fees to the plaintiffs, and by denying their motion for a new trial. They also argue that the amount of the jury’s award was excessive.

First, defendants contend that the trial court erred by instructing the jury on the “dead man’s presumption” in Instruction No. 23, which stated:

The law presumes that Kenneth Smith, in his conduct at the time of and immediately preceding the accident, was exercising ordinary care. This presumption is a form of evidence and will support a finding in accord with the presumption unless the defendants introduce substantial evidence to the contrary.

Defendants point out that this instruction is contrary to our holding in Bongiovi v. Jamison, 110 Idaho 734, 718 P.2d 1172 (1986), and I.R.E. 301.

In Bongiovi v. Jamison, supra, this Court held that a jury may not be instructed on presumptions. Discussing the effect of I.R.E. 301,² which had been adopted only the year before, the Court in Bongiovi stated:

This rule provides two major benefits. First, it standardizes the definition of the word presumption. The rule merely requires the courts to instruct directly on those evidentiary objectives rather than referring to them as presumptions. The rule simply means that when courts use the word presumption, and it is not otherwise defined by statute or the Rules of Evidence, then it shifts the burden of production.

Second, the rule effectively eliminates the word presumption from jury instructions. Indeed, the comments to Rule 301 advise the courts not to mention presumptions to juries____

A Rule 301 presumption relieves the party in whose favor the presumption operates from having to adduce further evidence of the presumed fact until the opponent introduces substantial evidence of the nonexistence of the fact.

110 Idaho at 738, 718 P.2d 1172 (emphasis added). The Court in Bongiovi held that it was reversible error to give an instruction similar to Instruction No. 23 in this case. Instruction No. 23 erroneously advised the jury that “the law presumes” the decedent was exercising due care. (Emphasis added.) The Court in Bongiovi specifically held that such an “instruction is unnecessary as well as improper” and explained that I.R.E. 301 “effectively eliminates the word presumption from jury instructions.”

Furthermore, Instruction No. 23 stated that “[tjhis presumption is a form of evidence.” Bongiovi said that presumptions are not a form of evidence.³ As the Court said in Bongiovi, I.R.E. 301 “merely requires the courts to instruct directly on those evidentiary objectives rather than referring to them as presumptions.” Bongiovi, 110 Idaho at 738, 718 P.2d 1172. Finally, Instruction No. 23 instructed the jury that the defendants must introduce “substantial evidence” to overcome the presumption. This statement compounds the error, as a jury could easily infer that such a statement imposes a higher standard than that ordinarily imposed by law. Accordingly, the trial court erred in giving Instruction No. 23 to the jury.⁴ Bongiovi v. Jamison, supra (“Where the evidence does conclusively establish a fact, the trial court should simply instruct the jury that that fact has been established — thus avoiding use of the word ‘presumption.’ ” 110 Idaho at 739, 718 P.2d 1172.).

The trial court’s error in instructing the jury on the dead man’s presumption interfered with the jury’s evaluation of the issue of Smith’s possible comparative negligence. The law requires all drivers to keep a lookout for other vehicles. Robinson v. Westover, 101 Idaho 766, 768, 620 P.2d 1096, 1098 (1980) (“Person operating motor vehicle has duty to keep proper lookout.”); Munson v. State, Dept. of Highways, 96 Idaho 529, 530-531, 531 P.2d 1174, 1176-1177 (1975) (“[DJriver of automobile is held to have notice of that which is plainly visible on highway before him.”); Drury v. Palmer, 84 Idaho 558, 564, 375 P.2d 125, 128 (1962) (“It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is plainly visible or obviously apparent, and a failure on his part in this regard, without proper justification or reason, makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care.”).

The question of whether Smith was comparatively negligent for failing to keep a proper lookout was a question of fact for the jury, as the trial court correctly noted in denying Smiths’ motion for partial summary judgment. Whether Smith was keeping a proper lookout so as to see the pickup truck entering the highway in front of him was a question of fact for the jury. However, the jury, having been incorrectly instructed on the dead man’s presumption, and being told that it was “a form of evidence” which may only be overcome by “substantial evidence to the contrary,” may have based its decision on the presumption rather than the facts in the case. A properly instructed jury may well have allocated some negligence to Smith based upon the circumstantial evidence that he “is held to have notice of that which is plainly visible on the highway before him.” Munson v. State Dept. of Highways, supra. Therefore the giving of the “dead man’s” instruction, in violation of our Bongiovi case and I.R.E. 301, was reversible error. Bongiovi v. Jamison, supra. The defendant is entitled to a new trial before a jury correctly instructed on the law which they should apply. See, Fussell v. St. Clair, 120 Idaho 591, 818 P.2d 295 (1991).

We also conclude that Instruction No. 28 was given in error, as it also impermissibly instructed the jury on the operation of a presumption. Instruction No. 28 stated:

In determining what sum will fully and fairly compensate the plaintiffs for the loss of the care, society, love, comfort and companionship of Kenneth Smith, you are instructed that the plaintiffs need not demonstrate that such losses were of a particular monetary value, or for that matter, any dollar value whatsoever. Rather, under Idaho law, the general loss sustained by children for the death of their father is presumed as a matter of law. (Emphasis added.)

As was the case with Instruction No. 23, this instruction improperly instructed the jury that the damages suffered by Kenneth Smith’s children as a result of his death “is presumed as a matter of law.” Bongiovi specifically held that I.R.E. 301 “effectively eliminates the word presumption from jury instructions.” Accordingly, the trial court erred in giving the damage Instruction No. 28. I.R.E. 301; Bongiovi, supra.

The defendants next argue that Instruction No. 22 improperly commented upon a fact issue to be determined by the jury. Instruction No. 22 provided that:

A driver has the right to assume other drivers are exercising reasonable care on the highway by obeying the rules of the road.

This instruction, which uses the word “assume” rather than “presume,” states that people sharing the road and following the rules of the road may assume that other drivers will follow the same rules. However, IDJI 219 recommends “that no instruction to the effect that a person has a right to anticipate due care or obedience to the law on the part of others be given.” While we do not consider the error in giving this instruction as grounds for reversal, on retrial the trial court should omit this particular instruction.

Finally, the Defendants object to the duplicative nature of parts of Instruction Nos. 26, 28, and 29. We have already ruled above that Instruction No. 28 was given in error. Instruction No. 29 read:

In determining what sum of money will fully and fairly compensate the Plaintiffs for the loss of the care, society, love, comfort and companionship of Kenneth Smith, you should consider the nature, depth, extent and quality of the relationship between the Plaintiffs and Kenneth Smith, as shown by the evidence.

Instruction No. 26 instructed the jury of “the loss of services, protection, training, aid, comfort and loss of society of Kenneth Smith.” While we find no error resulting from the fact that parts of some of the damage instructions were repeated in other instructions, duplicative instructions should ordinarily be avoided.

Finally, because we are reversing the judgment and remanding this case for a new trial, we address the issue of attorney fees which may come up again on retrial. The district court based its award of attorney fees on its conclusion that the defendants’ refusal “to settle this matter for policy limits was frivolous, unreasonable and without foundation as was the defense offered by defendants in this matter.” A trial court’s consideration of failed settlement negotiations or of a refusal to negotiate a settlement when deciding whether to award attorney fees is prohibited under Idaho law. In Anderson v. Anderson, Kaufman, et. al., 116 Idaho 359, 775 P.2d 1201 (1989), this court unanimously held that “the failure to enter into or conduct settlement negotiations is not a basis for awarding attorney fees under I.C. § 12-121 and I.R.C.P. 54(e)(1).” 116 Idaho at 366. See also, Ross v. Coleman, 114 Idaho 817, 761 P.2d 1169 (1988); Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982).

Furthermore, this Court has held that if a case includes any triable issues, an award of attorney fees under I.C. § 12-121 is not appropriate. In Payne v. Foley, supra, this court reversed an attorney fee award under I.C. § 12-121 and I.R.C.P. 54(e) because, even though liability was not “seriously contested,” the question of the amount of damages was legitimately raised and tried. See also, Magic Valley Radiology Associates, P.A. v. Professional Business Services, Inc., 119 Idaho 558, 563, 808 P.2d 1303, 1308 (1991) (“The total defense of a party’s proceedings must be unreasonable or frivolous” before an award of attorney fees is appropriate under I.C. § 12-121 and I.R.C.P. 54(e)(1)); Turner v. Willis, 119 Idaho 1023, 1025, 812 P.2d 737, 739 (1991) (“[T]he ‘total defense’ of this case was not unreasonable or frivolous, and accordingly, pursuant to our holding in Magic Valley Radiology, the trial court erred in awarding attorney fees pursuant to I.C. § 12-121 and I.R.C.P. 54(e)(1).”)

In this case, as in Payne, Magic Valley Radiology, and Turner, the question of Smith’s negligence, and amount of the Smiths’ damages were clearly legitimate, triable issues. Thus, the “total defense” was not frivolously pursued, and the trial court erred in awarding attorney fees pursuant to I.C. § 12-121 and I.R.C.P. 54(e)(1).

The judgment of the trial court is reversed and the case is remanded for a new trial. Costs to appellant. No attorney fees allowed.

JOHNSON, BOYLE and McDEVITT, JJ., concur.

1 . Before trial, on March 1, 1989, plaintiffs offered to settle for $100,000, leaving the offer open until March 29, 1989. Defendants rejected the offer, and countered with an offer of $73,-500. Defendants’ offer, lower than the insurance policy limits, was rejected. Plaintiffs renewed their offer to settle for $100,000 on July 17, 1989, which was after a complaint was filed on their behalf in district court by their attorney. That offer was also rejected. The trial court awarded prejudgment interest on the $100,000 offer, based on the provisions of I.C. § 12-301, from July 17, 1989, the date of plaintiffs' final offer, to the date of final judgment.

2 . I.R.E. 301 reads: “Presumptions In general In civil actions and proceedings. — In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast."

3 . The Court in Bongiovi stated:

IDJI 213 instructs juries to weigh as evidence the presumption that an accident victim unable to testify at trial exercised due care immediately preceding the accident, except where the defendant proves the plaintiffs negligence. Under rule 301 the presumption would assign to the defendant the burden of producing evidence of the plaintiffs negligence. Since the defendant already has that burden the instruction [IDJI 213] is unnecessary as well as improper.

110 Idaho at 739, n. 3, 718 P.2d 1172 (emphasis added).

4 . Even prior to I.R.E. 301 and Bongiovi, the rule was that the dead man’s instruction should not be given where there is evidence regarding the circumstances of the accident. This Court, in Dewey v. Keller, 86 Idaho 506, 518, 388 P.2d 988, 1000 (1964), stated that:

The principle of law outlined in such instruction is properly applied only where there are no witnesses or external evidence to indicate what the conduct of the decedent might have been immediately prior to his death. Where the details of an accident are available through eye witnesses or other external evidence, the purpose of the presumption is served and the necessity for such instruction is removed. (Emphasis added.)

See also Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964); Mundy v. Johnson, 84 Idaho 438, 373 P.2d 755 (1962).

In this case, the parties introduced detailed evidence of witnesses and other "external evidence” regarding the circumstances of the accident Since such details were available, "the purpose of the presumption was served” and the instruction was not necessary. Dewey, supra. Thus, even before Bongiovi, the giving of Instruction 23 would have been error. However, after Bongiovi, there can be no question that giving Instruction 23 was reversible error.