Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 922 F.2d 845 (9th Cir. 1991)

William MORGAN, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 90-35011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 1990.Decided Jan. 7, 1991.

Before WRIGHT, SCHROEDER and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM* 

Morgan sued under the Federal Tort Claims Act, alleging that Madenford, a federal employee, was negligent when his government truck collided with Morgan's motorcycle. At the close of Morgan's case, the district court dismissed, finding that because Morgan's negligence exceeded Madenford's, recovery was precluded under Idaho law. He appeals. We reverse and remand.

BACKGROUND

Gary Madenford, a Bureau of Land Management employee, was involved in an accident with Bill Morgan while rounding a curve in a BLM truck on Quigley Creek Road. Quigley Creek Road, a public highway, is made of gravel and other natural materials and is approximately 18 feet wide at the accident site.1  Madenford could not see Morgan and his friend, Brad Gelskey, riding their motorcycles toward him when he entered the curve. As he rounded the curve, he saw them, applied his brakes, which locked, and skidded across the highway hitting Morgan within 3.5 feet of the left shoulder of the road. The collision forced Morgan off the road. He fractured his left foot. Madenford and Gelskey were not hurt.2 

Morgan brought suit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that the accident occurred because of Madenford's negligence. After the close of Morgan's evidence, the government moved to dismiss under Fed. R. Civ. P. 41(b), arguing that Morgan had failed to demonstrate by a preponderance of the evidence that he was entitled to recover. The court dismissed the action, concluding that as a matter of law Morgan's negligence was greater than Madenford's.

ANALYSIS

Under 28 U.S.C. § 1346(b), the United States will be liable for personal injury:

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.3 

A private person will be liable for common law negligence in Idaho if the claimant establishes (a) a duty recognized by law requiring that the defendant conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injuries; and (4) injury. Alegria v. Payonk, 619 P.2d 135, 137 (Idaho 1980). Idaho considers a violation of a safety statute to be negligence per se, when the negligence was the proximate cause of injury. Stoddard v. Nelson, 581 P.2d 339, 342 (Idaho 1978). However, when the negligence of the plaintiff exceeds the negligence of the defendant, the plaintiff may not recover. See Idaho Code Sec. 6-801.

Morgan argues that the court erred when it dismissed his action under Fed. R. Civ. P. 41(b).4  "On a Rule 41(b) motion, the trial judge weighs the evidence, resolves conflicts and determines where the preponderance lies." Johnson v. United States Postal Serv., 756 F.2d 1461, 1464 (9th Cir. 1985). The motion may be granted even if the plaintiff makes out a prima facie case, provided the judge is convinced that the evidence preponderates against the plaintiff. Id.

This court reviews factual findings made under Rule 41(b) for clear error and will not set them aside unless "on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed." Id. Factual findings, however, are separate from the question whether the plaintiff has established a right to relief under the law and facts. Id.

The district court found as a matter of law that Morgan's negligence was greater than Madenford's and therefore Morgan failed to establish a right to relief. It concluded:

In addition to factors such as visibility, maneuverability, familiarity with the terrain, the following facts must be given weight: evidence regarding the overall condition of the plaintiff's motorcycle on the date of the accident; the total absence of a rear-wheel foot brake, and the actions or lack thereof by the plaintiff just prior to the accident. The court concludes that such evidence warrants a finding, as a matter of law, that William Morgan's negligence was greater than any negligence on the part of the government's employee, Gary Madenford.

Conclusions of Law at 7.

However, the district court failed to make specific factual findings of negligence and proximate cause.5  It made no findings as to whether a common law duty was breached or a statute was violated. Nor did it expressly conclude that Morgan's negligence was the proximate cause of his injury. This court is faced with mixed questions of law and fact and must conduct a de novo review of the evidence. Johnson, 756 F.2d at 1465.

Morgan argues that Madenford breached his statutory and common law duty to Morgan by driving too fast and failing to use reasonable care to avoid injuring him. The district court was not convinced that Madenford's negligence, if any, was greater than Morgan's. We disagree and find clearly erroneous the court's finding that "Morgan's negligence was greater than any negligence on the part of the government employee, Gary Madenford."

The court's finding that Madenford was traveling 25.3 mph is not disputed and its finding that 25 mph was the general safe speed on the road was not clearly erroneous. This does not mean, however, that 25 mph was the safe speed at the accident scene. Idaho Code Sec. 49-654(1) says:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.

The BLM safety committee report found that the top speed on the road is 25 mph. That report found that the maximum safe speed at the accident site was 15-20 mph. Madenford's excessive speed would have been a proximate cause of the accident if it caused him to skid out of control and hit Morgan. Madenford was negligent per se for violating Idaho Code Sec. 49-654(1).

He could also be found negligent per se for being on the wrong side of the road. "Upon all highways of sufficient width, a vehicle shall be driven upon the right half of the roadway...." Idaho Code Sec. 49-630. The court found that the road was 18 feet wide at the accident scene. This was sufficient width for a pickup truck and motorcycle to pass safely. The accident report also indicates that Madenford was already on the wrong side of the road before he began to skid. This was the only evidence presented on the position of the truck at the time of the accident. Because the accident occurred on Morgan's side of the highway, Madenford's negligence was a proximate cause of the injury.

One also has a common law duty to use reasonable care to avoid injury to another person in situations in which he could reasonably anticipate or foresee that failure to use such care might result in injury. Alegria, 619 P.2d at 137. Evidence indicated that Madenford had never been on the road before, that he was not looking at the road ahead when he rounded the curve, and that he had 30 feet of visibility before he applied his brakes.

Madenford admitted that he had a near collision with two other motorcycles on a curve 1.5 miles earlier when he locked his brakes and skidded to a stop. This evidence indicates that Madenford had notice of the danger of skidding on this unfamiliar road and that other vehicles were using it. Under these circumstances, his conduct of driving on the wrong side of the road at an excessive speed constitutes common law negligence which was a proximate cause of the accident.

Finally, the district court concluded that if there was any negligence by Madenford, it should be considered in light of the emergency doctrine. That doctrine lowers the standard of conduct to that of a prudent person acting in an emergency. The emergency doctrine only applies when the person claiming it is confronted by an emergency, not a result of his own negligence. Dewey v. Keller, 388 P.2d 988, 992 (Idaho 1962).

The court erred in applying the emergency doctrine to Madenford. His speed and position on the road gave rise to the emergency he faced, regardless of the positions of the motorcycles. The negligence of the other party is irrelevant if one's own negligence gives rise to the emergency.6 

Morgan argues that there is no evidence to support the court's conclusion that his negligence was greater than that of Madenford. First, he contends that it is impossible to determine how "visibility, maneuverability, [and] familiarity with the terrain" relate to his negligence and, to the extent they do, they showed Morgan was not negligent. The district court failed to indicate how these findings relate to Morgan's negligence and it escapes this court how "visibility, maneuverability [and] familiarity with the terrain" were critical to finding that Morgan's actions were negligent and the proximate cause of the injury.

First, visibility was not at issue in the trial. Second, Morgan was familiar with Quigley Creek Road, having driven on it 15 times. In contrast, it was Madenford's first time on that road. It is unclear how these factors make Morgan more negligent than Madenford.

Third, by maneuverability, the court may have been referring to evidence that Morgan did not brake and may have had an opportunity to avoid the collision. The court concluded that his actions, or lack thereof, just prior to the accident were negligent. There was evidence that Morgan did not brake, even though he had time to do so. He also had 3 1/2 feet of the road on to which he could have steered his motorcycle to avoid the collision. Other evidence, however, indicated that he did not have time to react.

Morgan also argues that there is no evidence to support what appears to be the court's critical finding that the overall condition of his motorcycle, and in particular, the lack of a rear-wheel brake was a hazardous condition.7  Once again, the court did not explain how the condition of the motorcycle related to Morgan's negligence. Even if a statutory or common law duty was breached, there was no finding that the breach was the proximate cause of the injury.8 

Although there is no specific finding whether there was an operational front brake, there was evidence that it was not operational.9  Morgan was not sure whether he used his brake to avoid the accident. He also was not sure whether the brake would hold or stop his motorcycle. He testified, however, that he did stop twice shortly before the accident. Other evidence showed that braking hard with only the front brake would cause the motorcycle to slide from under the rider.

Idaho Code Sec. 49-933(2) requires that every motorcycle have at least one functioning brake, which may be operated by either hand or foot. If Morgan did not have one operable brake, he violated Idaho Code Sec. 49-933(2). Violation of this safety statute would be negligence per se if the court found it to be a proximate cause of the accident.10  The court's conclusions suggest that it found that Morgan could have avoided the accident with an operable brake, however, it made no express findings to this effect.

There was sufficient evidence for the district court to find that both parties were negligent. Nevertheless, after reviewing the limited findings of fact and evidence presented at trial, we are unable to conclude that Morgan's negligence was greater, as a matter of law, than Madenford's negligence. We reverse and remand for a new trial.

Because this is a tort action, Morgan is not entitled to attorneys fees under 28 U.S.C. § 2412. Campbell v. United States, 835 F.2d 193, 195-96 (9th Cir. 1987).

REVERSED AND REMANDED.

WILLIAM A. NORRIS, Circuit Judge, Dissenting.

This is a run-of-the-mill negligence case involving a collision between a government truck and appellant Morgan's motorcycle. At the close of Morgan's presentation of his case, the district court granted the government's Rule 41(b) motion. The court's critical finding of fact was that Morgan's negligence was greater than any negligence on the part of the driver of the government truck, Gary Madenford. Unless we determine that this finding of comparative negligence is clearly erroneous, the judgment in favor of the government must be affirmed.

The majority's discussion of this straightforward issue is so perplexing, however, that I am unable to discern its true rationale for reversing and remanding for a new trial. On the one hand, it states that it is merely applying the clearly erroneous standard to the district court's finding of the relative negligence of Morgan and Madenford. See Majority Opinion at 5. On the other hand, the majority states that "we are unable to conclude that Morgan's negligence was greater, as a matter of law, than Madenford's negligence." Id. at 10. These two statements contradict each other, and suggest to me that the majority is ambivalent whether it is engaging in de novo or clearly erroneous review of the district court's findings.

Whatever the internal confusion of the disposition, it is at least clear to me that the majority did not engage in clearly erroneous review, which, of course, it should have since negligence is reviewable as an issue of fact. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Instead, the majority weighs and draws inferences from the evidence to find its own facts, thereby usurping the fact-finding function of the trial court. For example, the majority finds that Madenford's negligence was a proximate cause of the accident ("because the accident occurred on Morgan's side of the highway"). See Majority Opinion at 6. It also finds Madenford negligent per se for violating Idaho Code Sec. 49-654(1) because his speed was excessive. This finding in turn was based upon the majority's own evaluation of a safety committee report, which was a trial exhibit. In any case, the majority's findings about Madenford's negligence are beside the point absent a determination that the district court's findings on comparative negligence were clearly erroneous. Although at one point the majority purported to make this determination, see Majority Opinion at 5, the majority's analysis makes it clear that it did not do so.

Compounding the confusion, the majority at several points, states that the district court's findings are unclear, especially on how the lower court related evidence on matters such as visibility on the road to the issue of Morgan's and Madenford's relative negligence. See, e.g., id. at 7-8. However, if the majority is really concerned about unclear fact findings by the district court, then it should remand the case for entry of more specific findings, instead of proceeding to find those facts itself.1 

I would affirm the judgment for the government on the straightforward ground that the district court's finding that Morgan's negligence was greater than Madenford's was not clearly erroneous.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

A highway is any road that is publicly maintained and open for vehicular use to the public. Idaho Code Sec. 49-109(6)

 2

Gelsky was traveling behind Morgan and was able to avoid the accident

 3

There is no question that Madenford was acting within the course of his federal employment at the time of the accident

 4

Rule 41(b) says in relevant part:

After the plaintiff, ... has completed the presentation of evidence, the defendant, ... may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

 5

Questions of negligence and proximate cause are questions of fact to be resolved by the trier of fact. See Mann v. Gonzales, 605 P.2d 947, 948 (Idaho 1980)

 6

This case is similar to Fawcett v. Irby, 436 P.2d 714, 719-20 (Idaho 1968), where the defendant was not entitled to the benefits of the doctrine because he created the emergency by being on the wrong side of the road. The plaintiff would be entitled to the benefits of the doctrine unless the jury found that there was some prior negligence on the part of the plaintiffs that gave rise to the emergency they later faced. Id. at 720

 7

The court at the hearing said:

[P]erhaps the greatest negligence on your part was driving the vehicle that you were driving. It just wasn't prepared in condition to be out on the road, and so that's a heavy factor of negligence that must be taken into account.

 8

Focusing first on the overall condition of his motorcycle, Morgan admits that it had no headlights, brake lights, turn signals or a horn. Although the lack of an operational headlight, brake lights, and turn signals would be violations of safety statutes, that negligence could not have been the proximate cause of the accident because Madenford hit Morgan in daylight on the left front of the motorcycle. The failure to sound his horn does not appear to be the proximate cause of the injury

 9

At trial, Morgan testified that the front brake was "operable." But tests after the accident indicated that the brake would not have prevented the front wheel from turning at any speed on a loose gravel surface. Morgan testified, however, that the condition of the front brake cable was affected by the accident. He admitted that his motorcycle had no rear brake

 10

The government argues that the lack of operable brakes on Morgan's motorcycle must be the proximate cause of the accident because Gelsky had two operable brakes and was able to avoid the accident. But Gelsky testified that he was 15-20 feet behind Morgan when the accident occurred, giving him more time to avoid it. He also said that he ditched his bike off the road without using his brakes in the fear that he would be run over if he used them

 1

Indeed, it is beyond me how a determination that the district court's findings were somehow "unclear," see, e.g., Majority Opinion at 7-8, supports a reversal and remand on the ground those findings were clearly erroneous