419 P.3d 327
Okla. Civ. App.2017Background
- Smith (plaintiff) sued Barker (defendant) after Barker, turning right on a steady red at S. 109th E. Ave. and E. 71st St. in Tulsa, struck Smith while Smith was in a marked crosswalk on a bicycle and suffered injury.
- Smith's asserted theory at trial was negligence per se based on 47 O.S. § 11-202(3)(b): a vehicle turning right on red must yield to pedestrians lawfully in an adjacent crosswalk.
- Barker admitted turning on a steady red and hitting Smith but disputed whether Smith entered the crosswalk on a "walk" signal; Barker claimed Smith entered on a "don't walk."
- The trial court refused to give either party’s negligence-per-se instructions and instead gave only general duty instructions (ordinary care, lookout, etc.). Smith objected; Barker did not.
- The jury apportioned fault 80% to Smith and 20% to Barker. On appeal, Smith argued the court erred by refusing her negligence-per-se crosswalk instruction and by failing to instruct on the specific statutory duties governing controlled crosswalks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing negligence-per-se instructions generally | Smith: statutes she cited (yield, due care, inattentive driving, etc.) supported negligence per se | Barker: disputed factual predicate for per se findings (e.g., Smith entered on don’t-walk); some statutes are too general to support per se | Court: refusal to give four of five proposed per-se instructions was not erroneous because several statutes state only abstract duties unsuited to per se instructions |
| Whether a bicyclist in a crosswalk is entitled to pedestrian protections | Smith: bicyclist using crosswalk should have same rights/duties as pedestrian under §11-203 | Barker: argued Smith may not have been lawfully in crosswalk under command of the walk signal | Court: bicyclist using a crosswalk has same legal status and protections as a pedestrian for purposes of controlled crosswalk rules |
| Whether the jury was properly instructed on right-of-way at a signal-controlled crosswalk | Smith: trial court should have instructed under §11-203 that a person with a walk signal has right-of-way and drivers must yield | Barker: general-duty instructions were adequate and factual dispute over signal timing made per-se instruction inappropriate | Court: instructions given were legally incorrect and incomplete because they failed to state the specific statutory rule that right-of-way depends on the walk/don’t-walk signal; reversal and new trial ordered |
| Scope and form of proper instructions on remand | Smith: requested a specific per-se instruction reflecting §11-202/§11-203 | Barker: (no specific argument preserved on instruction wording) | Court: on remand, trial court must instruct that a bicyclist in a crosswalk is treated as a pedestrian and give modified instructions based on §11-203(1) for walk, §11-203(2) for don’t-walk, and §11-502(b) if plaintiff suddenly left a place of safety making yielding impossible |
Key Cases Cited
- Sellars v. McCullough, 784 P.2d 1060 (Okla. 1989) (trial court must correctly state the law; failure to do so may produce fundamental error)
- Mosley v. Truckstops Corp. of America, 891 P.2d 577 (Okla. 1993) (court must give instructions that correctly state law; it does not frame factual issues)
- Dutsch v. Sea Ray Boats, Inc., 845 P.2d 187 (Okla. 1992) (review of jury instructions considers whether instructions as a whole fairly and accurately state applicable law)
- Mansfield v. Circle K. Corp., 877 P.2d 1130 (Okla. 1994) (elements required to establish negligence per se when based on statutory violation)
- Hamilton v. Allen, 852 P.2d 697 (Okla. 1993) (statutory violation as negligence per se requires causation, type of harm, and membership in protected class)
- Schallenberger v. Rudd, 767 P.2d 841 (Kan. 1989) (bicycles and other human-powered conveyances in crosswalks have same rights as pedestrians vis-à-vis vehicles turning right on red)
- Belay v. D.C., 860 A.2d 365 (D.C. Ct. App. 2004) (statute should be construed to protect vulnerable crosswalk users such as bicyclists and wheelchair users)
- Pudmaroff v. Allen, 977 P.2d 574 (Wash. 1999) (illustrative reasoning that excluding bicyclists from pedestrian protections in crosswalks would be absurd)