Unpublished Disposition, 940 F.2d 667 (9th Cir. 1986)

MEMORANDUM^* 

Elena Barichievich filed suit in tort against Lori Marino and her father, George Larsen, and against Michael Estes and Ron Baker. The suit arose out of two successive automobile accidents that occurred on the afternoon of February 17, 1986 east of Seattle on Interstate 90 at Snoqualmie Pass. The basis for the district court's jurisdiction was diversity. At the end of a seven-day jury trial, Judge Alan McDonald granted directed verdicts as to negligence against Marino and Estes. Judge McDonald also held that Henning was not negligent and removed her name from the jury verdict form. The issues of contributory negligence, proximate cause, and relative fault went to the jury. The jury awarded Barichievich $196,000 plus costs and attributed 45% to Marino's negligence and 55% to Estes' negligence. Only Marino challenges Judge McDonald's rulings.

ANALYSIS

A trial court should not direct a verdict as to negligence unless the facts are undisputed and but one reasonable inference can be drawn from them. The court cannot weigh the evidence but must view it in the light most favorable to the non-moving party. Questions of disputed fact and credibility should be given to the jury. Here Judge McDonald improperly stepped in and took away from the jury the question of Marino's negligence and facts that were in dispute. The jury had sat for over a week and should have been allowed to draw their own conclusion as to Marino's negligence from the disputed facts. However, the jury verdict renders Judge McDonald's error harmless. Because the issue of relative fault was submitted to the jury, the jury was free to relieve Marino of liability or assign her a token percentage when it apportioned fault. It found she was almost 50% to blame. The jury's finding that Marino was substantially at fault for Barichievich's injuries removes any doubt that it could have found Marino was not negligent. By the same jury verdict finding Barichievich's negligence was not the cause of her injuries, Barichievich was cleared of contributory negligence.

Marino argues the court should at least have let the jury decide whether or not Henning was negligent. But there was no factual dispute as to Henning. Henning exercised reasonable care under the circumstances. That she may not have taken all possible precautions was not sufficient to subject her to liability in the present case.

AFFIRMED.