Thomas Ex Rel. Thomas v. Gilliam

1989 OK 59, 774 P.2d 462, 1989 Okla. LEXIS 58, 1989 WL 33196

• Court: Supreme Court of Oklahoma
• Decided: April 11, 1989
• Docket: 68566
• Status: Published

Opinions

KAUGER, Justice.

In this case of first impression, the only question presented on certiorari is whether the trial court erred by refusing to give requested special jury instructions outlining the standard of care imposed on a motorist for the safety of a nine-year-old pedestrian. The court gave the “ordinary standard of care” instruction because No. 10.5 of the Oklahoma Uniform Jury Instructions-Civil (OUJI-CIV) provided that no special instructions should be given on the care required for the safety of a child. We find that the trial court properly followed the directives of the Oklahoma Uniform Civil Jury Instructions.

FACTS

On June 6, 1984, the appellee, John C. Gilliam, was driving his van in a southerly direction on Lakeview Drive in Woodward, Oklahoma, traveling at a speed of approximately thirty five miles per hour. He saw two girls, who appeared to be between eight and eleven years old. The girls were walking and skipping on the right side of the road near the middle of the southbound, lane. After he saw the girls, Gilliam reduced his speed to approximately twenty-five miles per hour, honked his horn twice, and because there was no approaching traffic, moved over to the left side of the road. As he passed the girls, he slowed to approximately fifteen miles per hour. Suddenly, nine-year-old Amanda K. Thomas pivoted left, ran across the center of the road and collided with his car.

Her mother and next friend, Helen Thomas, filed an action in the district court of Woodward County seeking damages for Amanda’s injuries. At the conclusion of the evidence, Amanda’s attorney requested that the jury be instructed on two “care required for safety of child” instructions. The trial court refused to give the requested instructions because No. 10.5 of the OUJI-CIV provides that no special instruction should be given on the care required for the safety of a child. The jury, in a 10-2 verdict for the appellee, assessed the comparative negligence of the parties. The child was found to be 75% negligent, and the driver to be 25% negligent in causing the accident and the resulting injuries.

Amanda appealed, and the Court of Appeals found that the trial court erred when it refused to give her requested instructions concerning the standard of care of drivers toward children. The Court of Appeals noted that the requested instructions were based on Bready v. Tipton, 407 P.2d 194, 200 (Okla.1965), and Lawrence v. Eicher, 271 P.2d 320, 323 (Okla.1954). The Bready Court approved a special care jury instruction for a boy ten years and four months old. It held that it was the jury’s prerogative to consider the natural propensities of a child of his age; and that the jury must determine whether, under all the circumstances, the driver had the right to assume, without honking his horn, that the boy would remain riding on the south side of the highway in a position of safety rather than attempting to cross the road. In Lawrence, a four year old child was killed after it was struck by a car. The Court approved a “child of tender years” instruction, finding that a child of tender years demands, and the law imposes, the duty of extreme care. (Both Bready and Lawrence were promulgated before the adoption of the Oklahoma Uniform Jury Instructions.)

THE TRIAL COURT PROPERLY FOLLOWED THE OKLAHOMA UNIFORM JURY INSTRUCTIONS — CIVIL NO. 10.5.

A

In 1968, the Oklahoma Legislature authorized the Supreme Court of the State of Oklahoma to prescribe and institute uniform instructions to be given in jury trials of civil cases in order to effectuate an equal and uniform administration of justice. The Legislature recognized that many judgments in actions tried by juries were reversed because of errors in jury instructions; and that in some instances, justice was withheld, delayed, or denied because of erroneous instructions.¹ (The obvious purpose of the OUJI is twofold: 1) to provide juries with clear, concise, uniform, and unbiased instructions to guide their deliberations; and 2) to increase the efficiency of trial counsel and trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects.)²

On December 14, 1981, the Oklahoma Supreme Court adopted the Oklahoma Uniform Jury Instructions — Civil (OUJI-CIV) with an effective date of January 1, 1983. The Oklahoma Uniform Jury Instructions were first considered in a criminal case. The Oklahoma Court of Criminal Appeals examined the refusal of the trial court to give the Oklahoma Uniform Jury Instruction — Criminal (OUJI-CR) NO. 744, the instruction on self defense, and No. 749 defining “aggressor” in Keith v. State, 709 P.2d 1066, 1070 (Okla.Crim.1985). It found that the uniform instruction on self defense was clear and concise, and that the instruction the trial court gave was not. It also found that the trial court’s instruction failed to adequately define “aggressor”. Because of the accumulation of errors, including the failure to use the OUJI-CR, the case was reversed and remanded.³

Since the effective date of the OUJI-CIV, we have had two occasions to consider their application.⁴ We first addressed the OUJI-CIV in Woodall v. Chandler Material Co., 716 P.2d 652-53 (Okla.1986). The Woodall Court concluded: that 12 O.S.1981 § 577.2 directs all trial courts to use the instructions set forth in OUJI-CIV; that if the trial court finds that the instructions are inaccurate, it may modify instructions to cover the subject being submitted; and that the trial court is duty-bound to submit simple, brief, impartial, and non-argumentative instructions if the OUJI does not contain an appropriate instruction.⁵ Recently, in Studebaker v. Cohen, 747 P.2d 274, 276 (Okla.1987), this Court considered whether the addition of an “Act of God” instruction in the unavoidable accident instruction, OUJI No. 9, was proper. We found that the OUJI-CIV did not contain an Act of God instruction, and that the trial court should have given the instruction as written.

B

Instruction No. 10.5 of the OUJI-CIV, “Care Required for Safety of Child”, states that no instruction should be given. The explanation for not giving the instruction is that:

A ‘Care required for safety of child’ instruction should not be given. The standard of care is ordinary care, and anticipation of the behavior of chldren is one circumstance as to what constitutes ordinary care in the situation. The essence of the instruction is that one must anticipate the ordinary behavior of children and exercise greater care for their protection.

The statute is couched in language which leaves no doubt concerning the mandatory nature of the OUJI. Pursuant to 12 O.S. 1981 § 577.2, if the OUJI contains a pertinent applicable instruction, the trial court “shall ” use the instruction unless the trial court determines that the instruction does not accurately state the applicable law.⁶ Failure to use the uniform instruction is error unless the court finds an instruction to be erroneous or otherwise improper, and so states its reasons for not using the OUJI into the record.⁷

The recognition of the propensities of children is within the common knowledge of the ordinary juror, and is an implicit factor in any jury’s deliberation in reaching a verdict.⁸ It is readily apparent that ordinary care, insofar as young children are concerned, involves the exercise of greater care. Therefore, there was no reason to include a special instruction on the care required for the safety of a child.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; TRIAL COURT AFFIRMED.

HARGRAVE, C.J., OPALA, V.C.J., and LAVENDER, DOOLIN and SUMMERS, JJ., concur. HODGES, SIMMS and ALMA WILSON, JJ., dissent.

1 .Title 12 O.S. § 577.1 provides:

"Inasmuch as many judgments in actions tried by juries are set aside and vacated on account of errors in instructions; and, whereas, justice is withheld, delayed, and, in some cases, denied on account of such erroneous instructions; and, the compilation and adoption of a body of uniform instructions in civil and criminal cases tried by juries in the courts of this state is necessary to the equal and uniform administration of justice; and, whereas, the justices and judges of the appellate courts of this state are in the best position to properly prescribe such instructions on this subject to the Legislature; the Supreme Court of the State of Oklahoma and the Court of Criminal Appeals of Oklahoma are respectively requested and authorized to proceed to prescribe and institute uniform instructions to be given in jury trials of civil or criminal cases, such instructions to be called: ‘Oklahoma Uniform Jury Instructions.' (OUJI).''

2 . Javis v. Bd. of Educ., 393 Mich. 689, 227 N.W.2d 543, 546 (1975).

3 . Robert E. Lee Richardson explained the rationale for OUJI-Crim. in "Oklahoma’s Uniform Jury Instructions for Criminal Cases” 53 OBJ 803 (1982):

"... It was discovered that the jurors had trouble understanding legal jargon, ‘particularly when sitting consecutive cases with differing elements required for convictions.’ "In an earlier project, the Center for Jury Studies found that 39 percent of jurors did not comprehend typical instructions. However, after the instructions were redrafted for clarity, only 13 percent of the jurors failed to comprehend their meaning. In o its most recent research on jurors, the Center stated: ‘In summary, these judges granted jurors high marks for conscientiousness, but learned that jurors need all the help they can get to function more effectively. Clearer instructions, free of legal jargon and delivered early in the trial, would set jurors on the proper course.’ "One of the principal goals of the Commission on Oklahoma Uniform Jury Instructions (Criminal) has been to make every effort to assure not only that each instruction is capable of being understood by jurors, but also to assure that all instructions given in a particular case are understood. Clarity has been the Commission’s guideline ...”

4 .Arkansas adopted the Arkansas Model Instructions (AMI) in 1965. Consequently, the Arkansas Supreme Court has frequently scrutinized the mandatory use of Uniform Jury Instructions. Southeast Constr. Co. v. Eudy, 252 Ark. 649, 480 S.W.2d 571, 574 (1972); Chicago, Rock Island & Pacific R.R. Co. v. Hughes, 250 Ark. 526, 467 S.W.2d 150, 153 (1971); Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554-55 (1970); Vangilder v. Faulk, 244 Ark. 688, 426 S.W.2d 821, 825 (1968); Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373, 377 (1968). In 1968, the Arkansas Supreme Court decided Adkins. The Adkins Court reversed and remanded the cause because the trial court had given a requested instruction at variance with the AMI. The Adkins Court stated:

“The purpose of the AMI was to save valuable time in settling instructions at the trial level, to attain uniformity, to reduce confusion, to allow composition of instructions by the courts and attorneys with confidence and ease, and insofar as possible, with such accuracy as to reduce the number and necessity of appeals. The per curiam requirement, supra, recognized the necessity for flexibility in the use of AMI. Thus, the trial judge may modify if he feels that AMI does not accurately state the law, and by placing his reasons in the record, the attorneys in considering an appeal, and the appellate court, in considering the points relied upon, may go straight to the heart of the alleged error and adjudge the validity of the refusal or modification of the instruction with greater dispatch and with greater accuracy as to specific point relied on. To accomplish the purposes of AMI we must insist upon its use where applicable, to hold otherwise, would place us back into the confusion and inaccuracy of the pre-AMI era and destroy the usefulness and purpose of AMI.”

5 . See also Vangilder v. Faulk, note 4, supra.

6 . Title 12 O.S. § 577.2 provides in pertinent part:

"Whenever Oklahoma Uniform Jury Instructions (OUJI) contain an instruction applicable in a civil case or a criminal case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the OUJI instructions shall be used unless the court determines that it does not accurately state the law. Whenever OUJI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial and free from argument. Counsel for either party or parties shall have a right to request instructions by so requesting in writing. .

Each instruction shall be accompanied by a copy, and a copy shall be delivered to opposing counsel. In addition to numbering the copies and indicating who tendered them, the copy shall contain a notation substantially as follows: ...”

See also, Javis v. Bd. of Educ., note 2, supra.; Pietrzyk v. Detroit, 123 Mich.App. 244, 333 N.W.2d 236, 238 (1983).

7 . Hudson v. Carr, 668 S.W.2d 68, 71 (Mo.1984); Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 206 (Mo.1983); Chapin v. Rogers, 80 N.M. 684, 686, 459 P.2d 846, 848 (1969).

8 . The child's mother testified that she was an average nine year old, thus establishing capacity.