Date: 01-20-2008

Case Style: Donald E. Hesse, II v. Colleen S. McClintic, D.C.

Case Number: 06SC624

Judge: Eid

Court: Colorado Supreme Court, Denver County

Plaintiff's Attorney:

Bill Keating, Steve Polidori and Kristin D. Sanko, Fogel Keating, Wagner, Polidori & Shafner, P.C., Denver, Colorado

Defendant's Attorney:

Colin C. Campbell and Casey A. Quillen, Campbell Latiolais & Ruebel, P.C., Denver, Colorado

Description:

Respondent Colleen McClintic was rear-ended by Petitioner Donald Hesse when she slowed for bighorn sheep that had entered her lane of travel on the highway. McClintic brought a negligence claim against Hesse stemming from the accident. Hesse raised the defense of comparative negligence, claiming that McClintic was negligent in failing to pull onto the shoulder instead of slowing in the lane of travel. At the close of evidence, McClintic moved for a directed verdict on the issue of her comparative negligence, which the trial court denied. The jury found McClintic to be thirty percent at fault. The court of appeals reversed the trial court's denial of the directed verdict motion, holding that as a matter of law, McClintic had no duty to pull onto the shoulder when confronted by animals on the road. It further held that as a matter of law, McClintic was confronted with a "sudden emergency" and acted reasonably under the circumstances, thereby precluding a finding of breach of duty.

We now reverse the court of appeals. We hold that a driver is under a duty to drive with reasonable care, which may be violated in some circumstances by not pulling over. We further hold that Hesse presented sufficient evidence that McClintic acted unreasonably by failing to pull over when confronted by sheep on the road. Thus, we hold that the question of comparative negligence was properly submitted to the jury.

On the morning of February 12, 2001, a clear, sunny day, Petitioner Donald Hesse and Respondent Colleen McClintic were traveling in separate cars through the mountains on westbound I70. At that location, the highway had a posted speed limit of sixty-five miles per hour and consisted of two travel lanes going in each direction, with paved shoulders on opposite sides of the grassy median and on the far sides of the highway. McClintic was driving in the right lane at a speed of sixty-five miles per hour when she saw a number of Rocky Mountain bighorn sheep ahead of her, with some standing in her lane of travel and some standing on the shoulder of the highway. She saw a semi-trailer truck on her left, but saw no cars behind the truck. She looked in her rearview mirror and did not see any vehicles behind her. She slowed her car in her lane of travel to a speed of between ten and thirty miles per hour.

Hesse was driving in the left lane behind the semi-trailer truck that was traveling next to McClintic. The truck slowed down, causing Hesse to decrease his speed as well and close the distance between his van and the truck to approximately twenty-five feet. Hesse' s vision of the right lane ahead of him was partially obscured by the truck. Shortly thereafter, another vehicle came up closely behind Hesse, and its driver flashed his headlights, indicating a desire to pass. Hesse, seeing no one in the right lane, moved into that lane at a speed of fifty to fifty-five miles per hour. It was only then that he saw McClintic' s car ahead of him. Hesse was unable to stop his van before he rear-ended McClintic' s vehicle.

McClintic sued Hesse for damages resulting from her injuries sustained in the accident. She claimed that Hesse was negligent in following too closely behind the semi-trailer truck and thereby obscuring his vision of the right lane, making his lane change unsafe. As an affirmative defense, Hesse asserted that McClintic was comparatively negligent in slowing in the lane of travel rather than pulling onto the right shoulder when confronted with the sheep.

At trial, McClintic' s expert witness, an accident reconstruction engineer, testified that at a speed of sixty-five miles per hour, McClintic could have seen the sheep from seven hundred to nine hundred feet away, and that she would have had about six to nine seconds to react to the sheep. McClintic testified that the sheep were "pretty far" away, perhaps three hundred feet, when she first saw them, and that she saw them in enough time to come to a stop before striking them, whether she stayed in her lane or moved onto the shoulder. She agreed that any time a motorist nearly stops on an interstate highway when other traffic is traveling at sixty-five miles per hour, there is a risk that another driver may come from behind and hit the slower car. She further testified that in retrospect, it would have been safer for her to pull off the road, rather than remain on the highway. Lastly, she testified that just before the accident, she had her head turned to look at the sheep, rather than focusing on the traffic conditions around her.

At the close of evidence, McClintic moved for a directed verdict that Hesse was one hundred percent negligent, claiming that Hesse had introduced no evidence of McClintic' s comparative negligence. The trial court denied the motion and submitted the issues of Hesse' s negligence and McClintic' s comparative negligence to the jury. The jury awarded McClintic $170,000, but found Hesse to be seventy percent at fault and McClintic to be thirty percent at fault. Accordingly, McClintic' s award was reduced by thirty percent to $119,000.1 McClintic filed a motion for judgment notwithstanding the verdict, which the trial court denied. McClintic then appealed the trial court's denial of her directed verdict motion to the court of appeals.

In McClintic v. Hesse, 151 P.3d 611 (Colo. App. 2006), the court of appeals reversed, holding that the trial court erred in submitting the issues to the jury because, as a matter of law, Hesse was solely negligent. Id. at 613. It determined that as a matter of law, McClintic was under no duty to pull onto the shoulder when confronted with animals on the road. Id. at 613-14. It further found as a matter of law that the sheep created a "sudden emergency" and that McClintic exercised the same degree of care that a reasonable person would have exercised under the circumstances. Id. at 614. We granted certiorari in this case to review the court of appeals' ruling.2

II.

Hesse contends that he presented enough evidence of McClintic' s comparative negligence to reach the jury on the issue. We agree, and reverse the court of appeals' holding to the contrary. First, we consider the court of appeals' conclusion that McClintic was under no duty to pull over to the side of the road. We hold that, contrary to the court of appeals' analysis, a driver is under a duty to drive with reasonable care, which may be violated in some circumstances by not pulling over. We then consider the court of appeals' conclusion that McClintic was not negligent, as a matter of law, because she acted reasonably when confronted by a sudden emergency by slowing on the highway. We hold that, again contrary to the court of appeals' analysis, Hesse presented sufficient evidence that McClintic acted unreasonably by failing to pull over when confronted by sheep on the road. Thus, we hold that the question of comparative negligence was properly submitted to the jury.

A.

We begin our review with the question of whether McClintic owed a duty of care under the circumstances. See HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 888 (Colo. 2002) (stating that a negligence claim must fail unless a legal duty is owed). The existence and scope of a legal duty is a question of law. See, e.g., Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo. 1980).

The question of duty in this case is a relatively straightforward one. McClintic, like all drivers, was under a duty to drive with reasonable care under the circumstances. This is the duty that attaches to every driver when he or she goes on the road, and we have so held for almost half a century. See, e.g., Curtis v. Lawley, 140 Colo. 476, 480, 346 P.2d 579, 581 (1959) ("Notwithstanding the operator of a vehicle over a public road has the right of way over a person entering thereon from a private roadway, he must use his right in a reasonable manner; in other words, it was the duty of both parties to use due care as that term is understood at common law."); Bird v. Richardson, 140 Colo. 310, 315, 344 P.2d 957, 960 (1959) (holding that the plaintiff was under a duty "to exercise that degree of care to avoid an accident required of a reasonable, prudent individual under the then existing circumstances").3

We reaffirmed this duty to drive with reasonable care under the circumstances most recently in the context of contributory negligence in Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977) . In that case, a paving contractor closed two lanes of a four-lane highway for resurfacing and rerouted all traffic to the remaining two lanes, one going in each direction. Id. at 153, 563 P.2d at 941. Unaware that traffic had been re-routed, the driver of the Ringsby vehicle attempted to pass a gasoline tanker in front of him, crossing into the lane with oncoming traffic. Id. Bradfield, who was traveling in the oncoming traffic lane, slowed down and pulled off the road. Id. at 153-54, 563 P.2d at 941. Despite Bradfield's attempt to get out of the way, the Ringsby driver fish-tailed and struck him. Id. at 154, 563 P.2d at 941. Bradfield sued both Ringsby, the owner of the oncoming tractor-trailer which struck him, and Kiewit, the paving contractor.

We affirmed the trial court and court of appeals' ruling that Bradfield was not contributorily negligent as a matter of law for failing to get out of the way, stating:

[R]easonable minds would have to agree that Bradfield did all he was legally required to do in the dangerous situation which suddenly confronted him. His initial rate of speed was not unreasonable under the circumstances. He slowed his vehicle markedly and pulled almost entirely onto the shoulder of the highway. Bradfield was not required to drive his vehicle into the ditch. When a driver sees a vehicle approaching him in the wrong lane, he is entitled to assume that the other driver will return to his proper lane of traffic.

Id. at 154, 563 P.2d at 942 (citation omitted) (emphasis added). Thus, in Ringsby, we confirmed a driver's duty of care to drive reasonably under the circumstances, but found that Bradfield was not contributorily negligent as a matter of law because he had acted reasonably under the circumstances and therefore did not breach his duty of care.4

Here, the court of appeals noted that there was "[ no] authority suggesting that a driver has a duty to pull onto the shoulder when seeing animals on the roadway," and concluded that "[ w] ithout such a duty, McClintic cannot be negligent as a matter of law for failing to pull over." McClintic, 151 P.3d at 614. The court of appeals is correct that there is no general requirement that a driver always pull over to the side of the road when confronted by animals on the road.5 However, simply because a driver need not pull over every time she is confronted by animals on the road does not mean that she never needs to pull over in such a situation. The court of appeals erred in making this leap of logic.

As noted above, a driver is under a duty to act reasonably under the circumstances. Pulling to the shoulder will sometimes be the best decision under the circumstances, but other times, the safest course of action will be to stay on the road. There will be some circumstances in which the animals appear suddenly, and the driver has no time to react and pull over. In other situations, the animals could be farther in the distance, and the driver can slow and pull over in a safe fashion. There are undoubtedly hundreds, if not thousands, of variations on the "vehicle meets animals" fact pattern. As a result, we conclude that the court of appeals erred when it held that as a matter of law, there is no duty to pull over when confronted with animals on the road. Rather, a driver is under a duty to act reasonably under the circumstances -- a duty that may be violated in some circumstances by not pulling over.6

Because McClintic was under a duty to drive with reasonable care under the circumstances, the question becomes whether she breached that duty. The court of appeals held that there was no duty under the circumstances, but it nevertheless went on to reach the question of breach through the rubric of "sudden emergency." McClintic, 151 P.3d at 614. It held that as a matter of law, McClintic exercised the same degree of care that a reasonably prudent person would have exercised under the circumstances when confronted with the "sudden emergency" of encountering sheep on the highway. Id. Thus, it found that the trial court erred in sending the question of breach to the jury. Id. at 615.

The "sudden emergency" doctrine recognizes that "a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions." Young v. Clark, 814 P.2d 364, 365 (Colo. 1991) . The doctrine does not, however, automatically insulate drivers confronted with an emergency from comparative negligence claims. An emergency does not impose a lesser standard of care on the person caught in the situation; it is simply one circumstance to be considered in determining whether the individual responded as a reasonably prudent person would have under the circumstances. Id. Thus, a person may be found negligent if her actions are deemed unreasonable under the circumstances, even if those circumstances included an emergency. Id.

We have long held that whether there was an emergency and whether the course of conduct chosen under the circumstances was reasonable are questions of fact to be determined by the trier of fact. See, e.g., Davis v. Cline, 177 Colo. 204, 208, 493 P.2d 362, 364 (1972) . This is in line with our broader rule that the question of whether a person was negligent -- that is, whether she breached her duty of care by acting unreasonably under the circumstances -- is ordinarily a question of fact for the jury. Metro. Gas Repair Serv., Inc., 621 P.2d at 318. In a comparative negligence case, "[ t] he relative degrees of fault are to be determined by a trier of fact except in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference." Gordon v. Benson, 925 P.2d 775, 777 (Colo. 1996) . When considering a directed verdict motion, a court "must view the evidence and all reasonable inferences arising legitimately therefrom in the light most favorable to the non-movant." Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681, 686 (Colo. 1998) . If, when viewed in this light, the evidence cannot support a verdict in favor of the non-moving party, the court should direct a verdict and not submit the issue to the jury. Id. at 686-87. "[W]here there is no evidence in the record that could support a finding of negligence on the part of the plaintiff, it is reversible error to submit the question of comparative negligence to the jury." Id. at 687 (emphasis added). It was thus for the jury to determine whether the animals on the road constituted a "sudden emergency" and whether McClintic acted reasonably by slowing but not pulling over, unless there was "no evidence" that she was negligent.

We cannot conclude that there was "no evidence" of McClintic' s negligence. McClintic was driving on a heavily traveled portion of I-70; indeed, there was a truck driving beside her at the time. In her testimony at trial, she agreed that any time a motorist nearly stops on an interstate highway when other traffic is traveling at sixty-five miles per hour, there is a risk that another driver may come from behind and hit the slower car.

Additionally, McClintic' s own expert, an engineer who does accident reconstruction, testified that McClintic could have seen the sheep from seven hundred to nine hundred feet away, giving her six to nine seconds to react had she been traveling at a speed of sixty-five miles per hour. McClintic, on the other hand, testified that the sheep were three hundred feet away when she first saw them. The jury could have concluded from this testimony that McClintic' s visibility was nine hundred feet, but that she was not paying adequate attention to the conditions ahead of her and therefore lost crucial time in which she could have changed lanes, pulled onto the shoulder, put on her hazard lights, or conducted any number of other defensive driving maneuvers that could have lowered the risk of an accident.

Moreover, McClintic testified that the sheep were "pretty far" away when she first saw them, and that she had enough time to come to a stop before hitting them -- regardless of whether she had stayed in the lane of travel or moved onto the shoulder. She further testified that in retrospect, it would have been safer for her to pull off the road, rather than slow down on the highway. Lastly, she testified that just before the accident, she had her head turned to look at the sheep. The jury could have concluded that even if McClintic saw the sheep from only three hundred feet away, she still had time to pull onto the shoulder and thereby minimize her risk of being hit from behind, while avoiding a collision with the sheep. The jury could have further determined that McClintic was watching the sheep and was not focused on the traffic conditions around her, thus eliminating the possibility of seeing Hesse' s car and moving out of its way.

From all of this evidence, the jury could have concluded that McClintic had sufficient time to pull over to the shoulder, and that a prudent driver in the same circumstances would have done so. As a result, we find that Hesse presented sufficient evidence of McClintic' s negligence to reach the jury on the issue of comparative negligence.

We do not mean to suggest that there are not cases in which the issue of comparative negligence is properly kept from the jury; it is simply that this is not one of them. Indeed, as illustrated by Ringsby, in which the plaintiff pulled off the side of the road but was hit anyway, we concluded that the driver "did all he was legally required to do," and that therefore the question of the reasonableness of the driver's conduct could be decided as a matter of law. 193 Colo. at 154- 55, 563 P.2d at 942. It is not clear in this case, however, that McClintic did all she was required to do under the circumstances. We therefore hold that the trial court properly denied her directed verdict motion on the issue of comparative negligence.7

* * *

http://www.cobar.org/opinions/opinion.cfm?opinionid=6460&courtid=2

Outcome: For the foregoing reasons, we reverse the court of appeals. We hold that a driver is under a duty to drive with reasonable care, which may be violated in some circumstances by not pulling over. We further hold that Hesse presented sufficient evidence that McClintic acted unreasonably by failing to pull over when confronted by sheep on the road. Thus, we hold that the question of comparative negligence was properly submitted to the jury. We therefore reverse the court of appeals and remand for further proceedings consistent with this opinion.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None