JUDGMENT AFFIRMED. Division I Opinion by JUDGE FOX Taubman and Sternberg*, JJ., concur. NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced July 25, 2013

Transcription

1 12CA1563 Frandson v. Cohen COLORADO COURT OF APPEALS DATE FILED: July 25, 2013 Court of Appeals No. 12CA1563 Pitkin County District Court No. 10CV346 Honorable Thomas W. Ossola, Judge Graham Frandson, Plaintiff-Appellant, v. Shannon Cohen Defendant-Appellee. JUDGMENT AFFIRMED Division I Opinion by JUDGE FOX Taubman and Sternberg*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced July 25, 2013 Freeman & Freeman, PC, Martin H. Freeman, Aspen, Colorado; Law Pffoce pf Lathy Goudy, Kathy Goudy, Carbondale, Colorado, for Plaintiff-Appellant Levy Wheeler Waters, P.C., Mark R. Levy, Jesse O. Brant, Greenwood Village, Colorado, for Defendant-Appellee *Sitting by assignment of the Chief Justice under the provisions of Colo. Const. art. I, 5(3), and , C.R.S

2 In this personal injury action, plaintiff, Graham Frandson, appeals the judgment entered on a jury verdict for defendant, Shannon Cohen. Frandson asserts that the trial court erred in (1) denying his motion for a directed verdict on the issue of liability; (2) instructing the jury on a sudden emergency ; (3) denying his motion for judgment notwithstanding the verdict on the issue of liability; and (4) denying his motion for a new trial on damages only. We affirm. I. Background This case arises from injuries Frandson sustained in a rearend collision in October Cohen was traveling behind Frandson on Main Street in Aspen when the third vehicle in front of Frandson slowed down to turn right. Frandson and the two vehicles in front of him slowed down and stopped. At trial, Cohen testified that while traveling about twenty miles per hour and following two car lengths behind Frandson, she saw his brake lights come on. Cohen could not stop her vehicle before she struck Frandson s vehicle. 1

3 At the close of all evidence on liability, Frandson moved for a directed verdict, arguing that Cohen presented no evidence to rebut the presumption of negligence in a rear-end collision. The trial court denied the motion. The trial court later instructed the jury on the presumption of negligence and on the sudden emergency doctrine, which allows a defendant to rebut the presumption of negligence with evidence that because of an emergency situation, she could not avoid the collision. The jury found that Frandson sustained injuries or damages from the collision, but that Cohen was not negligent and that her negligence did not cause Frandson s damages. After the judgment was entered, Frandson moved for judgment notwithstanding the verdict on the issue of liability and requested a new trial on damages only. The trial court denied Frandson s requests, and this appeal followed. II. Directed Verdict 2

4 Frandson first contends that the trial court erred in denying his motion for a directed verdict on the issue of Cohen s liability. We disagree. A. Standard of Review We review a trial court s ruling on a motion for a directed verdict de novo. Churchill v. University of Colo., 293 P.3d 16, 34 (Colo. App. 2010), aff d, 285 P.3d 986 (Colo. 2012). A directed verdict should be entered only when no reasonable juror would conclude that the evidence presented, or any resulting inferences, could support a verdict against the moving party. Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist., 271 P.3d 587, 590 (Colo. App. 2011). The evidence must be considered in the light most favorable to the nonmoving party. Id. B. Analysis In a rear-end collision, a driver who overtakes and collides with a car that has stopped or slowed ahead on a roadway is presumed negligent. See Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681, 687 (Colo. 1998); Bettner v. Boring, 764 P.2d 829, (Colo. 1988). The defendant in a rear-end collision can 3

5 rebut the presumption of negligence by demonstrating that there was a sudden emergency requiring her to stop. Hetrick v. Dame, 536 P.2d 1153, 1156 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)). 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), abrogated by Bedor v. Johnson, 2013 CO 4, 17 (abolishing the sudden emergency doctrine). Upon request, a trial court will instruct the jury on sudden emergency if competent evidence supports the conclusion that a party acted in an emergency, where that party did not cause the emergency. Id. at 366. While the sudden emergency doctrine has since been abolished, Bedor, 17, the doctrine was available to Cohen at the time of trial. She presented evidence of a sudden emergency to rebut the presumption of negligence. First, there was no dispute that the collision occurred during the day when the weather was clear and the road was dry. Next, Cohen testified that immediately 4

6 before the collision, she was driving below the speed limit, she was not distracted, and she was driving approximately two car lengths behind Frandson when she saw his brake lights come on. She further testified that she could not see beyond Frandson s car, and did not know that other cars had stopped in front of him. Based on this testimony, reasonable persons could infer that Frandson s abrupt stop was a sudden emergency that contributed to Cohen s inability to stop her vehicle before hitting Frandson. See Young, 814 P.2d at 367 (holding that the sudden emergency instruction was available to a defendant in a rear-end collision when plaintiff stopped abruptly before the collision, and there was no evidence that defendant was following too closely or driving too fast for the conditions). Thus, the trial court properly denied Frandson s motion for directed verdict. See Huntoon, 969 P.2d at 686 (holding that a directed verdict is not appropriate when the non-moving party provides evidence contrary to the movant s prima facie case). III. Jury Instruction Wolf next contends that the trial court erred in giving the jury a sudden emergency instruction. We disagree. 5

7 A sudden emergency instruction is appropriate where sufficient evidence exists that a party acted in an emergency situation not caused by the party s own negligence. Young, 814 P.2d at 366. The parties do not dispute that the jury was instructed using the language of CJI-Civ. 4th 9:11 (2011) which states: A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care that a reasonably careful person would have exercised under the same or similar circumstances. 1 See also Bedor, 9. If a jury instruction correctly states the law, we review the trial court s decision to give the instruction for abuse of discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). A trial court s ruling on jury instructions is an abuse of discretion only when the ruling is manifestly arbitrary, unreasonable, or unfair. Id. 1 This part of our analysis relies on the parties representation concerning the instructions provided, as the written jury instructions are not included in the record on appeal, and the judge s oral instructions are indiscernible in the transcript. 6

8 Because Cohen presented evidence sufficient to justify a sudden emergency instruction, see Young, 814 P.2d at 366, we conclude that the trial court did not abuse its discretion in giving the jury a corresponding instruction. See Day, 255 P.3d at IV. Judgment Notwithstanding the Verdict and Motion for New Trial Frandson next contends that the trial court erred when it denied his motion for judgment notwithstanding the verdict on the issue of liability and his motion for a new trial on the issue of damages. Again, we disagree. A judgment notwithstanding the verdict is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Cardenas v. Fin. Indem. Co., 254 P.3d 1164, 1167 (Colo. App. 2011) (citing C.R.C.P. 59(e)(2)). We review de novo the grant or denial of a judgment notwithstanding the verdict motion. Id. Because Cohen presented sufficient evidence to rebut the presumption of negligence, see Hetrick, 536 P.2d at 1156, Frandson was not entitled to judgment as a matter of law. See Cardenas, 254 P.3d at Likewise, he was not entitled to a new trial. 7

9 The judgment is affirmed. JUDGE TAUBMAN and JUDGE STERNBERG concur. 8

10 CHRIS RYAN CLERK OF THE COURT STATE OF COLORADO 2 East 14 th Avenue Denver, CO (720) PAULINE BROCK CHIEF DEPUTY CLERK NOTICE CONCERNING ISSUANCE OF THE MANDATE Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue fortythree days after entry of the judgment. In worker s compensation and unemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(I), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect. Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b) will also stay the mandate until the Supreme Court has ruled on the Petition. BY THE COURT: Janice B. Davidson Chief Judge DATED: December 26, 2012 Notice to self-represented parties: The Colorado Bar Association provides free volunteer attorneys in a small number of appellate cases. If you are representing yourself and meet the CBA low income qualifications, you may apply to the CBA to see if your case may be chosen for a free lawyer. Self-represented parties who are interested should visit the Appellate Bro Bono Program page at