Raines v. Lindsey
Annotate this CaseSeptember 1992 Term
______________
No. 20844
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GRETCHEN DASCOLI RAINES AND JONEY W. RUSSELL,
Plaintiffs Below, Appellees
v.
GINA KAY LINDSEY AND KAREN SUE LINDSEY,
Defendants/Third-Party Plaintiffs Below,
Appellants
v.
CARSON L. STIDOM,
Third-Party Defendant Below, Appellee
AND
CARSON L. STIDOM,
Plaintiff Below, Appellee
v.
GINA KAY LINDSEY AND KAREN SUE LINDSEY,
Defendants Below, Appellants
____________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Jr., Judge
Civil Action No. 88-C-289 and 88-C-793
REVERSED AND REMANDED
____________________________________________________
Submitted: September 15, 1992
Filed: October 22, 1992
William D. Levine, Esquire
St. Clair & Levine
Huntington, West Virginia
Attorney for the Appellee
Gretchen Dascoli Raines
James A. Colburn, Esquire
Baer, Colburn & Morris, L.C.
Huntington, West Virginia
Attorney for the Appellee
Joney W. Russell
R. Gregory McNeer, Esquire
Laura L. Gray, Esquire
Campbell, Woods, Bagley, Emerson,
McNeer & Herndon
Huntington, West Virginia
and
William L. Mundy, Esquire
Mundy & Adkins
Huntington, West Virginia
Attorneys for the Appellants Gina Kay
Lindsey and Karen Sue Lindsey
Joseph M. Farrell, Jr., Esquire
Hunt, Lees, Farrell & Kessler
Huntington, West Virginia
Attorney for the Appellee, Carl L. Stidom
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
"In a comparative negligence or causation action the issue of apportionment of negligence or causation is one for the jury or other trier of the facts, and only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference from them should such issue be determined as a matter of law. The fact finder's apportionment of negligence or causation may be set aside only if it is grossly disproportionate." Syllabus Point 2 of Reager v. Anderson, 179 W. Va. 691, 371 S.E.2d 691 (1988).
Neely, Justice:
This case presents one simple issue: Did the trial court
err by refusing to give a defendant's instruction on comparative
contributory negligence? We find that there was sufficient
evidence of contributory negligence to warrant such an instruction,
and because the defendants' entire theory of the case was
contributory negligence, we reverse.
This case arose out of a one-car automobile accident that
occurred early on a Sunday morning in March, 1987. Gretchen
Dascoli Raines and Gina Kay Lindsey arranged to spend the evening
in Huntington socializing at various bars near Marshall University.
Ms. Lindsey lived with her parents in Milton, so plans were made
for Ms. Lindsey to spend the night with Ms. Raines in Huntington so
that Ms. Lindsey could avoid driving back to Milton at the end of
the evening.
Around 8:00 p.m. on the Saturday night before the Sunday
morning accident, Ms. Raines met Carson L. Stidom at the Tavern-Off-The-Green, a bar located near Marshall University. Ms. Raines
and Mr. Stidom drank beer and mingled with friends at the Tavern-Off-The-Green. Ms. Lindsey arrived at the Tavern-Off-The-Green at
approximately ten o'clock, finding Ms. Raines and Mr. Stidom
already there. While at the Tavern-Off-The-Green, Ms. Raines
consumed approximately four beers, while Mr. Stidom had four to
five beers and Ms. Lindsey drank four to six beers. During the
course of the evening, Ms. Lindsey purchased no alcohol herself.
Sometime between midnight and 12:30 a.m., Ms. Lindsey,
along with Ms. Raines, Mr. Stidom, Joney E. Russell and Craig
Mounts, left the Tavern-Off-The-Green and proceeded to The Derby
Club, a bar located on Eighth Avenue and Fifth Street West in
Huntington. The group travelled to The Derby Club in two vehicles;
one vehicle driven by Ms. Lindsey with Mr. Russell and Mr. Mounts
as passengers and the other vehicle driven by Ms. Raines' friend,
Michelle Canella, in which Ms. Raines and Mr. Stidom were
passengers. Until approximately 4:30 a.m., Ms. Raines, Mr. Stidom,
Mr. Mounts, and Ms. Lindsey continued drinking alcoholic beverages
at The Derby Club. Around 4:30 a.m., the young people left The
Derby Club and walked next door to another bar, The Late Spot. Mr.
Stidom, Mr. Mounts, and Ms. Lindsey continued to drink alcoholic
beverages at The Late Spot, although there was a dispute at trial
concerning the amount of alcohol consumed by each of them.
Supposedly, Ms. Raines began drinking coffee at The Late
Spot, and stopped drinking alcohol at approximately 4:00 a.m., but,
nonetheless, evidence was presented at the trial to show that five
hours after Ms. Raines had allegedly stopped drinking alcohol, Ms.
Raines' blood alcohol level was .18% and her blood alcohol level
would have been .21% at 7:30 a.m. Sunday morning, the time the
group left The Late Spot. After the accident, Ms. Lindsey's blood
alcohol level was .16%. Both Ms. Lindsey and Ms. Raines testified
that Mr. Stidom was intoxicated. Ms. Russell slept the majority of
the time the group was at The Derby Club and did not consume any
alcohol.
At approximately 7:30 a.m. on Sunday, after being
together at three bars all night and consuming alcohol together
since at least 10:00 p.m. Saturday, Ms. Raines, Ms. Russell, Mr.
Stidom, Mr. Mounts and Ms. Lindsey left The Late Spot and got into
Ms. Lindsey's car, their intention being to go to breakfast
together. Ms. Lindsey drove, and before proceeding to breakfast,
the group went to find an open gasoline station so that Ms. Lindsey
could put fuel in her vehicle. Mr. Mounts was let out of the car
because he did not have money to buy breakfast.
The evidence presented at trial showed that Ms. Lindsey
drove in an erratic manner, speeding up and "jumping" railroad
tracks, almost losing control of her car. Also, Ms. Lindsey drove
fast and ran at least one red light. There is no question that Ms.
Lindsey's passengers protested Ms. Lindsey's manner of driving and
demanded that she slow down.
After Mr. Mounts got out of Ms. Lindsey's car and the
group went to look for a gasoline station, a single car accident
occurred. Ms. Raines, Ms. Russell and Mr. Stidom received severe
injuries and subsequently sued Ms. Lindsey and her mother, Karen
Sue Lindsey, for negligence. The jury returned a verdict in favor
of Ms. Raines for $9,752.32 for medical expenses, $250,000 in
compensatory damages and $500,000 in punitive damages. Ms. Russell
was awarded $4,151.64 for medical expenses and $75,000 in
compensatory damages, while Mr. Stidom received $19,500 for medical
expenses, $150,000 in compensatory damages and $300,000 in punitive
damages.
The Court instructed the jury that, as a matter of law,
Ms. Raines, Ms. Russell and Mr. Stidom were not negligent in
accepting a ride from Gina Kay Lindsey upon leaving The Late Spot.
Plaintiff's Jury Instruction No. 1, (Record at 354-355) which was
given by the court, stated:
"The Court instructs the jury that under the
laws of the State of West Virginia, a driver of an
automobile owes a duty to an invited guest to take
reasonable care for his safety. It is only when
the guest knows or by due diligence should know,
that the driver is not taking proper precautions,
that it becomes the passengers [sic] duty to
complain or object to the conduct of the driver.
"In this particular case there is no evidence to
prove that prior to entering the vehicle, the
actions of Gina Lindsey were sufficient to have
caused any of the plaintiffs to know that her
ability to operate the vehicle had been impaired.
Accordingly, as a matter of law, it was not
negligent for any of them to have accepted a ride.
Accordingly, the Court instructs you that before
you may conclude that the plaintiffs were guilty of
negligence which contributed to their injuries, you
must find from a preponderance of the evidence that
after the ride began, Gina Lindsey was operating
the automobile in a manner which the plaintiffs
knew or should have known was a failure to take
proper precautions but, notwithstanding this fact,
they failed to complain about her conduct. If, on
the other hand, you conclude that the guest
passengers did complain to Gina Lindsey about her
driving before the accident, then, as a manner
[sic] of law, they have discharged their duty and
cannot be guilty of any negligence which caused or
contributed to their injuries." [Emphasis added]
The evidence at trial was overwhelming that the
plaintiffs and the defendant, Gina Kay Lindsey, were altogether in
various bars drinking liquor for a long time. It was the
defendants' right to argue that the plaintiffs in this case had
reasonable grounds to believe that Ms. Lindsey was drunk and that
they behaved in a negligent manner by entering the car with her.
By giving a binding instruction telling the jury that, as a matter
of law, the plaintiffs were free from contributory negligence for
any act done up to the point of entering the car, the court
effectively precluded the defendants from arguing their theory of
the case, even though that theory was supported by ample evidence.
As this Court said in syllabus point 2 of Reager v. Anderson, 179
W. Va. 691, 371 S.E.2d 619 (1988):
"In a comparative negligence or causation action
the issue of apportionment of negligence or
causation is one for the jury or other trier of the
facts, and only in the clearest of cases where the
facts are undisputed and reasonable minds can draw
but one inference from them should such issue be
determined as a matter of law. The fact finder's
apportionment of negligence or causation may be set
aside only if it is grossly disproportionate."
See also Biddle v. Haddix, 154 W. Va. 748, 179 S.E.2d 215 (1971);
Wilson v. Edwards, 138 W. Va. 613, 77 S.E.2d 164 (1953); Miller v.
Blue Ridge Transp. Co., 123 W. Va. 428, 15 S.E.2d 400 (1941).
Accordingly, the judgment of the Circuit Court of Cabell
County is reversed and the case is remanded for a new trial.
Reversed and remanded.
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