CHAMBERS v PIERSON
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No. 94-055 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 CHARLES CHAD CHAMBERS, a minor, through his Guardian Ad Litem,. Linda C. Chambers, Plaintiff and Appellant, -v- SEP 20 1994 MATTHEW ROBERT PIERSON, Defendant and Respondent. APPEAL FROM: -82 ..JLitL CLERKOFSUPREMECOURT STATE OF MONTANA District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Byron L. Robb, Judge presiding. COUNSEL OF RECORD: For Appellant: Peter M. Kirwan, Kirwan & Barrett, Bozeman, Montana For Respondent: Gene I. Brown & Steve Reida, Landoe, Brown, Planalp & Braaksma, Bozeman, Montana Submitted on Briefs: Decided: Filed: June 24, 1994 September 20, 1994 Justice Fred J. Weber delivered the Opinion of the Court. Plaintiff Charles Chad Chambers appeals the judgment entered for the defendant in the District Court of the Sixth Judicial District, Park County, pursuant to a jury verdict finding the defendant was not negligent when the truck driven by him struck the plaintiff as he rode his bicycle in the crosswalk in front of defendant's truck. We reverse in part and remand for a new trial. The issues are restated as follows: I. Did the District Court err in refusing to give plaintiff's proposed Instruction No. 26 concerning defendant's standard of care? II. Did defense counsel's arguments constitute prejudice and preclude a fair trial? III. Did the District Court err in refusing to instruct the jury that a child is not held to the same standard of care as an adult? IV. Did the District Court err by instructing the jury on the legislative recommendation encouraging equipping every bicycle with a flag? V. Did the combination of errors presented in Issues I through IV constitute reversible error? VI. Was defendant negligent as a matter of law? Our decision on Issue I is dispositive of the first five issues in this case. Although Issues II., III., IV. and V. need not be reviewed, Issues III. and IV. are addressed for the benefit of the trial court in a subsequent jury trial. We decline to address Issues II. and V. On May 22, 1989, g-year-old Charles Chad Chambers (Chad) was riding his bicycle home from Winans School in Livingston where he attended third grade. The defendant, 15-year-old 2 Matthew Robert Pierson (Matt), was driving a truck after school. licensed driver for 12 days. (Wolfgang), Fourteen-year-old Matt had been a Wolfgang Schwarz a classmate of Matt, was a passenger in Matt's truck. Matt approached the intersection of 5th and Callender streets driving easterly on Callender Street. Chad approached the same intersection riding his bike on the sidewalk on the west side of 5th Street, heading north. The intersection of 5th and Callender streets is controlled by stop signs on both sides of Callender Street. Chad testified that he slowed down on his bike prior to entering the crosswalk in front of Matt's truck, and when he saw that the truck was stopped at the intersection behind the white crosswalk lines, he increased his speed and proceeded into the crosswalk to cross Callender Street. Matt testified that he stopped at the stop sign and allowed two cars to go by on 5th Street. Both Matt and Wolfgang testified that they did not see Chad approaching the intersection until he was already in the crosswalk approximately in line with the right front end of the truck. At the time Matt saw the bicyclist in the crosswalk, he had already started driving the truck forward, intending to cross the intersection. Before Matt was able to stop the truck again, he hit Chad with the left front end of his truck. Matt admitted that there was nothing obstructing his view of the sidewalk area from which Chad approached the crosswalk. Chad testified that he tried to swerve to his right to avoid being hit by the truck. However, he and the bike were knocked down 3 by the impact. Both Matt and Wolfgang got out of the truck to see whether Chad was injured. Although Chad had scraped his arms and elbows, he did not appear to be otherwise injured and again mounted his bike and rode home. After alerting his mother about the accident, Chad was taken to Dr. Priest at the Park Clinic. Dr. Priest treated the visible injuries on Chad's arms. Although Chad stated that he was alright at the scene of the accident, his mother testified that he was crying when he called Chad testified that, in addition to her after arriving home. skinning and bruising both of his arms, his head was injured either by the truck on impact or by hitting the pavement when he was Several days after the accident, Chad knocked down by the truck. saw Dr. Priest for the head injury because he was sleeping a great deal more than normal, had fallen asleep in school and was experiencing severe headaches. Prior to the accident, Chad had been diagnosed as having Attention Deficit Disorder (ADD), also known as hyperactivity, and he suffered from migraine headaches. There is no dispute among the experts who testified at trial that Chad suffered a concussion as a result of the accident with the truck and that he subsequently suffered post-concussion syndrome. The parties did dispute the question whether Chad suffers from permanent brain damage from a closed-head injury. months after exacerbated the migraine The symptoms Chad experienced in the several accident included headaches. increased sleeping and Chad was also diagnosed with dyslexia in a subsequent examination by a neuropsychologist in 4 connection with this case. Issue I. Did the District Court err in refusing to give plaintiff's Proposed Instruction No. 26 concerning defendant's standard of care? The District Court refused to give the following instruction proposed by plaintiff to the jury: INSTRUCTION NO. 26: Montana law provides that drivers of motor vehicles approaching an intersection have a duty to see what is in plain view and what should be seen in the exercise of reasonable care. A driver must look not only straight ahead but laterally ahead. A person is presumed to see, and therefore know, that which he could see by keeping a lookout. The failure of a motorist approaching a controlled intersection to see what was plainly visible or obviously apparent makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care. Plaintiff relies on Vender v. Stone (1990), 245 Mont. 428, 434-45, 802 P.2d 606, 610, and Payne v. Sorenson (1979), 183 Mont. 323, 326, 599 P.2d 362, 365, as a source of the instruction. The District Court agreed that Proposed Instruction No. 26 was an accurate statement of the law in Montana, but nonetheless refused to give the Vender, instruction because it was not an instruction in it was not applicable in this case, there was no question of whether the defendant l'bolted out into the intersection without stopping" and because it seemed peremptory. We disagree. Plaintiff contends that the court's refusal to give Proposed Instruction No. 26 is reversible error because it reflects a "critically important" part of plaintiff's theory of the case. According to counsel for plaintiff, the most important parts of Chad's case were the theories that the defendant had a duty to see 5 Chad when he crosswalk could but was and have also in that been plain the seen crosswalk as instruction he keeping ahead, drove embodies an on defendant by laterally view the was a the the important before presumed lookout including through sidewalk to not crosswalk. part of see only sidewalk entering that which straight area We ahead, next to the that agree plaintiff's the the of the theory case. Defendant view to the on factual the plain facts the after the therefore, and, argued this sidewalk he Street, of had his case duty was for to also let cars sign and there and only evidence was in that Chad was somewhere his bicycle as He plain view on a this plain application be seen argued that pass on laterally was no 5th ahead evidence introduced traveling on Street. Callender of not sidewalk v. Wolf (1993), case the and in physically that Chad approval not crosswalk. stop could contends that recent no Defendant towards not has ahead sidewalk. a was straight the 306, Chad presumption Chad the the that look down has cited Okland view because approaching stopped issue 5th Neither party Street on this case 258 Mont. 35, 40-41, 850 P.2d 302, Court in which we in was cited Payne with follows: Under Montana law, a motorist has a duty to look not only straight ahead but laterally ahead as well and to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view. . . . If a motorist does not keep a proper lookout, a jury may find him negligent. (Citations omitted.) In Okland, the 8-year-old plaintiff 6 lost control of his bicycle and swerved into driven by the a jury the law an alley boy one this as and had been Although month. apportioned defendant, from 15-year-old approximately the street Okland negligence Court quoted who in above Pavne the and the vehicle driver for from which facts jury's as a licensed between affirmed from a with involved equally part collided plaintiff finding and on restated subsequently based in Vender. The factual record issue to the cover to whether this facts. key The plaintiff's had the It is duty of (1988), is by party's 231 While jury 85, other addressed the plaintiff's case instruction submitted reversible Proposed applicable We to in establish on error Instruction and apply what was a case. See, 1053, the properly in this No. 26 law for plaintiff's hold the District We case because theory Court 7 court that not Matt visible. court commits on an important Smith addressed of an v. was the Rorvik to have an therefore, that it entitled it instructed in instructions of refuse erred elements part to the the essential conclude, of and do plainly e.q., none plaintiff jury. law 1058. presumption, the jury a had trial the was jury view that P.Zd. The the plain the 751 by seen have there appropriate the in instruct view to was that view. given negligence, which plain as to in 93, plain in Montana instructions to was Chad presumed indicates fact of refusing necessary was Chad that theory Mont. clearly instructions established error a case issue theory and well reversible part this as determine to in to give the plaintiff's jury on the case. refusing to give plaintiff's Proposed Instruction No. Issue 26 concerning defendant's II. standard of care. Did defense counsel's arguments constitute prejudice and preclude a fair trial? Plaintiff contends that the failure to give plaintiff's Proposed Instruction No. 26 permitted defense counsel to make highly prejudicial arguments during closing. Our ruling pursuant to Issue I. above reverses the District Court on this proposed jury instruction and makes it unnecessary to address this issue. We therefore decline to further discuss the closing argument. Issue III. Did the District Court err in refusing to instruct the jury that a child is not held to the same standard of care as an adult? We address this issue for the benefit of the District Court in a subsequent trial in this case. Plaintiff maintains that the following instruction was proposed to distinguish between the duty of care for the defendant, which is the same as for an adult licensed driver, and the duty of care for Chad: INSTRUCTION NO. 32 A child is not held to the same standard of care as an adult. A child is negligent if he fails to use that degree of care which is ordinarily exercised by children of the same age, intelligence, knowledge and experience under the circumstances then existing. The District quoted Court refused to give the first sentence of the above- instruction because no adults were involved and the instruction could confuse the jury because none of the parties were 8 adults. Plaintiff contends this was error because defendant is considered an adult in the eyes of the law and Matt is held to the same standard of care as an adult. Defendant counters that the court's refusal was not error because the instructions given, taken together, correctly instruct the jury on the proper standard of care for each party. The second paragraph of plaintiff's Proposed Instruction No. 32 was given by the District Court and correctly sets forth the standard of care applicable to Chad. In addition, the court gave the following: INSTRUCTION NO. 13 Montana law provides that a fifteen year old with a valid Montana Driver's license is held to the same standard of care while driving an automobile as an adult in the same circumstances. Instruction No. 13 correctly instructed the jury on the standard of care for Matt in this case and is more specific and less confusing than the sentence plaintiff argues should have been used. It is within the discretion of the District Court to decide how to instruct the jury, taking into account theories of the parties, and we will not overturn the court's decision unless the District Court abused its discretion. Mont. 243, 247, 862 P.2d 388, 390. Hislop v. Cady (1993), 261 It is not reversible error to refuse to give an offered instruction unless such refusal affects the substantial rights of a party and thereby prejudices him. If jury instructions when taken as a whole properly state the applicable law, there is no abuse of discretion on the part of the 9 District Court. Moralli v. Lake County (1992), 255 Mont. 23, 31, 839 P.2d 1287, 1292. We conclude that the jury was properly instructed as to the standards of care to be applied to each party in this case. We further conclude that plaintiff was not prejudiced by the refusal of the first sentence of plaintiff's Proposed Instruction No. 32. Plaintiff's counsel was able to counter any possible prejudice by the following quote from his closing argument: We have learned from the instructions that a 15 year old with a drivers license is the same as you, the same as me, same as the judge, and must comply with the rules, the standard of care, the requirements of that driving license, and we have seen what those are. . . . . . . The Defendant, . . . when he approached that stop sign and stopped, he was obligated to look, he was obligated to see, and he should have, in the exercise of ordinary care, seen Chad Chambers. But there's more to this than that, because, unlike a 15-year-old-licenseddriver who has the same burden and responsibility that we do, Chad Chambers, under the law, is in a different category. He's a child, and the law protects children. It protects mine, it protects yours, because the law does not expect those children, that nine year old, to have the same perceptions and understanding and experiences that adults do. So the standard of care and the requirements of perception that a child has are less. Well, because you've heard Why is this important? defense counsel raise the argument, "Well, it's a flash of light; we saw Chad Chambers flashing across: it was his fault, not the Defendant's." And ultimately you're going to be called upon to compare -- first of all to determine whether Chad Chambers was negligent and then compare his negligence, if you find that it exists, to that of the defendant. The bottom line is that -- let me put it in terms of a real simple example. One of the instructions that was read to you says that if the Plaintiff, Chad Chambers, is negligent, his damages are reduced by the percentage of that negligence. Let's put it in terms of a hundred dollars. Under the law, if you decide that after you 10 have considered the evidence that Chad is entitled to a hundred dollars in damages, and you find that he's five percent negligent then you take five bucks away from him. If you find he's fifty percent negligent, fifty dollars disappears, and if you find him more than fifty percent, he's denied his recovery entirely. So it's important to reflect on this different standard of care between a child Chad Chambers' age and an adult in the position of a licensed driver. We hold the District Court did not abuse its discretion by refusing to instruct the jury that a child is not held to the same standard of care as an adult. Issue IV. Did the District Court err by instructing the jury on the legislative recommendation encouraging equipping every bicycle with a flag? As in Issue III. above, this issue is addressed for the benefit of the District Court on remand in a subsequent trial. The District Court gave the following instruction offered by defendant over the objection of counsel for plaintiff: Every bicycle is encouraged to be equipped with a flag clearly visible from the rear and suspended not less than six feet above the roadway when the bicycle is standing upright. The flag shall be florescent [sic] orange in color. The source for this instruction is ยง 61-a-607, MCA. Plaintiff's counsel objected to this instruction on the basis that it creates no duty whatsoever, is merely a statement of the legislature's preference and, as such, is confusing and prejudicial. according to plaintiff, Moreover, this is merely a legislative desire and recommendation and does not have the force of law. Defendant's counsel argued that since the legislature has enacted the statute to encourage flags as safety devices, he was entitled to argue that preference. 11 The following dialogue occurred: [By Mr. Kirwan] Well, your Honor, I would just like to point out a difference in these statutes. We have in 61a-607 mandatory type requirements, and then we have this wish list desire as it relates to a flag, and 1'11 guaranty [sic] if this instruction is given the argument's going to be made that it is a violation of statute, and it's negligent per se, etc., etc., etc., and it is going to create prejudicial and reversible error. [By Mr. Brown] I guaranty [sic] that won't touch that with a ten foot pole. it. won't happen. We We won't mention [By Mr. Kirwan] I tell you what, you don't have to say it because the photographs are going to be there, and the photographs show that there is no flag on that bicycle, and I know the argument of counsel, he wouldn't have to say a word, but it's going to be there. The District even Court did if it was offered by defendant's prejudicial the the because a the the counsel. jury and not be legislature could gave Plaintiff should the statute the be instruction contends expected from to the ignored this as was distinguish requirements of law. instructions, favoring both 301(5), matters of information taken sides. law in which the rendering interpretations of Steer, v. 803 P.2d 601, 603. not a instructions matter to of the to of to jury: for We determine Revenue which rather, 12 at is relevant Section 25-7- jury "all 1292. the in for the jury's review District Court's a whether are Mont. to courts a they 245 pertaining the the necessary (1990), it state instruct thinks instruction law P.2d verdict." law The whole, must 839 court a Department Inc. a court the the as Moralli, requires MCA, is believe recommendation "recommendations" of Jury law just not 470, the must correct. 474-75, bicycle provide legislative flag proper desire. It has no force of law and creates no legal duty. We hold the District Court erred by instructing the jury that the legislature encourages that every bicycle be equipped with a flag. Issue V. Did the combination of errors presented in Issues I through IV constitute reversible error? Plaintiff contends that the combination of errors in giving jury instructions as argued in Issues I. through IV. constitute reversible error, even though they may be harmless individually. Pursuant to our holding in Issue I. above, we decline to address this issue. Issue VI. Was defendant negligent as a matter of law? Plaintiff's final argument contends that the District Court erred by not finding defendant negligent as a matter of law based on the defendant's duty to look up the sidewalk and see what was in plain view within a reasonable time before proceeding across the intersection. issues Defendant counters that there were numerous factual in this case which precluded the court negligence as a matter District finding of law. We agree with defendant. whether Chad, from on his bicycle, The critical factual issue here is was in plain view of Matt. Court could not declare Matt was negligent as a matter The of law because the jury was chargeable with determining the key issue on which a finding of negligence depended. A determination of negligence by the trial court is appropriate only where the court 13 is able to see from proximately caused evidence presented is negligence under and finding hold of by at proximate appropriate We the undisouted defendant's trial, instructions. District negligence as in part, a 5 Payne, 9 matter in Concur: 14 that be the Where present injury was conflicting case, decided 9 P.2d correctly of trial. We the must Court reversed actions. in causation the Affirmed as facts issues by the of jury at 365. refused to direct a law. part and remanded for a new
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