*1 Sharra DRUCKENMILLER v. CLUFF Danny J. 93-734 Court of
Supreme Arkansas delivered Opinion April *2 Associates, Gary Eubanks & by: James Gerard Schulze F. Hugh Spinks, for appellant. & Kilpatrick,
Anderson T. by: Hopkins, Mariam for appellee. Jr., Chief Justice. This appeal follows a defen- Holt, Jack dant’s verdict in an action for negligence arising from a motor- vehicle Druckenmiller, accident. The Sharra appellant, argues reversal, two for points asserting error on the trial court’s part the issue of her own submitting negligence to and in jury 3d, 614, refusing give AMI Civil the “sudden emergency” instruction. We hold that the trial court did not err in either instance, and we affirm judgment. its
Facts 29, 1990, On September at about 3:20 p.m., Mrs. Druck- enmiller was driving her Honda Accord west on Highway four-lane, Maumelle, a divided thoroughfare, Arkansas. Appellee Danny J. Cluff was headed east on Highway dri- a ving Freightliner truck owned his employer, appellee M.S. Carriers, Inc.
At the Road, intersection of 100 and Highway Mr. Murphy Cluff began to make a left turn. Mrs. Druckenmiller was between and, seventy-five and one-hundred feet away, as she subsequently testified, she her brakes at a applied distance of approximately fifty feet from the truck. Her car skidded from the inside to the outside westbound lane and struck the truck. Mrs. Druckenmiller and her injured vehicle damaged. cited police Mr. Cluff for failing yield when right-of-way a turn. making
In her Mrs. Druckenmiller complaint, alleged Mr. Cluff vehicle, made negligently a left turn into of her path thereby collision, causing damages, The trial personal injuries. court submitted the issue of with to both respect par- ties to the jury refused to give sudden emergency instruc- tion Druckenmiller. proffered by Mrs. The jury rendered a gen- Carriers, eral verdict in favor of Mr. Cluff and M.S. Inc. /. Submission appellant’s negligence On Mrs. appeal, Druckenmiller first contends the trial court erred in of her submitting issue to the in the absence of any substantial evidence that she was guilty of any fault. She maintains that the photographic exhibits show that there a straight stretch of road for a substantial distance *3 Road, before the intersection of 100 and Highway ren- Murphy it dering that improbable she could have been going fast enough for Mr. Cluff not to have seen her as turned. approaching 3d, 203,
The trial court instructed the under AMI Civil jury, that Mrs. Druckenmiller had the burden of that proving she sus- tained damages, that Mr. Cluff and M.S. Carriers were negli- gent, and that negligence such a proximate cause of her 3d, 206, damages. The court also employed Civil in instruct- the ing jury that Mr. Cluff and M.S. Carriers asserted Mrs. Druckenmiller was which a guilty was proximate cause of her own and that injuries they bore the burden of prov- their ing contention.
To aid the its determination of negligence on the driver, 3d, 901, of either part the trial court read AMI Civil which permits consideration of the rules of the road: following
First, it the is of the driver duty of motor vehicle a lookout for other keep vehicles or on the street persons or highway. lookout is which a reason- required ably careful driver would under the keep circumstances case; similar to those shown the evidence in by this Second, it of the driver of a motor vehi- duty cle to his vehicle keep under control. The control required is that which a careful reasonably driver would maintain under circumstances similar to those shown the evi- by dence in this case.
A failure meet the standard of conduct required by either of these rules is negligence. addition, 3d, 903,
In the trial court read AMI Civil allow- ing jury to consider as evidence of violation of the following statutory provision:
The driver of a vehicle an within intersection intend- to turn ing left shall all yield right-of-way to vehicles from the direction which approaching opposite are within the intersection or so close thereto as to constitute driver, an immediate hazard. The after having yielded so when having given signal and as required by this make the left turn chapter, may after all other vehicles which approaching intersection constitute an immedi- ate hazard shall have cleared the intersection.
Ark. Code Ann. 27-51-502 § 3d, 2102, AMI Civil
Reading the trial court offered the jurors four options:
If you should find that the occurrence was proximately caused negligence on the part Danny Cluff and Druckenmiller, not negligence on the of Sharra then Sharra Druckenmiller is entitled to recover the full any amount of damages you may find she has sustained as a result of the occurrence. *4 you
If find should that the occurrence was proximately caused negligence both Sharra Druckenmiller Cluff, and Danny then you must compare percentage of their negligence.
If the negligence Sharra Druckenmiller is of less Cluff, than degree then Danny Sharra Druckenmiller is entitled to recover which any damages find you may she has sustained aas result of the occurrence after have you reduced them in to the proportion degree of her own negligence. hand,
theOn other if Danny Cluff not was negligent or if the of Sharra Druckenmiller is to or equal Cluff, greater than the degree negligence of Danny then Sharra Druckenmiller not entitled to recover dam- any ages.
The jury returned a verdict in general favor of Mr. Cluff and M.S. Carriers. verdict, effect,
This was a declaration that the jury had concluded either that Mrs. Druckenmiller had not met her bur den of that Mr. Cluff proof was or that her negligent negli own gence was equal greater to or than any negligence assessed against Mr. Cluff. This court will affirm the verdict and judgment trial evidence; court if the verdict is supported by any substantial the question is not whether the evidence would have supported some other conclusion but whether it the conclusion supports reached by the trier of fact. John Cheeseman Trucking, Inc. Dougan, 313 Ark. Druckenmiller,
The record of trial shows that Mrs. by her own testimony, a substantial provided evidentiary basis for the trial court to submit the of her negligence jury. issue to the For example, following dialogue her transpired during cross- examination: Druckenmiller,
Q Mrs. I want to take you minute back to the day of the accident so we can make sure we under- stand what your testimony is about how the accident occurred. I think we all were agree you traveling median, inside lane closest to the is that correct? A Yes
Q And you first saw Mr. Cluff approximately feet away, is correct?
A Yes.
Q And I Okay. if understand your testimony correctly examination,
from direct are you you saw him in the saying middle intersection at that point? No,
A out into intersection. pulling event, In Q Okay. saw him any you moving into the inter- section about away? 75 to 100 feet *5 A Yes.
Q going And at that that was Okay. you thought, point, truck? just go straight could on around his stop you I A I at that that he saw me and that thought point Yes. manuever around in front of him. would be able to the fact that he was in the intersec- Q Okay. So despite tion, continue on toward the inter- made the decision to you section, is that correct?
A Yes. So, Druckenmiller, him that and Q you doing you Mrs. saw made the to continue on because you thought you decision him, could around is that correct? get A Yes.
Q you actually And did not start brakes applying your Cluff, until were about 50 feet from Mr. you away correct?
A I had started brakes. I did not have to slam applying my — on brakes that my Q Okay. your You first started brakes when applying you Cluff, were feet from Mr. away is that approximately correct?
A Yes. (T. 170-171) The could have concluded from the testimony that Mrs. Druckenmiller’s collision resulted from her waiting her brakes until was feet fifty away she from apply approximately Mr. vehicle after the truck having Cluff’s seen at a dis- turning tance one-hundred feet. seventy-five
Moreover, evidence a basis for the photographic provided Druckenmiller failed her to conclude Mrs. vehicle keep — under duty control addressed 901. As she testi- fied, in the inside lane next to the median when traveling she she saw Mr. Cluff’s truck in the intersection. The photographs the accident site show that Mrs. Druckenmiller’s car skidded from the inside to the outside lane before with the truck. colliding
523 actions, As for Mr. Cluff’s the evidence was suf- presented determine, ficient the jury to enable under AMI incor- 27-51-502, porating Ark. Code Ann. that the truck driver had § yielded right-of-way to “all vehicles” that an “imme- constituted diate hazard.” Mr. Cluff no testified that vehicles were approach- ing from the the time making direction at he his opposite began Indeed, left turn in the intersection. he stated that he allowed two belief, cars to before he It pass by turning. started was his stated, driver, experienced as an that he could far enough see down the road order to turn safely. make a is the
It or disbe prerogative to believe lieve testimony the 345, of any Massey, Ford Motor Co. v. witness. Further, (1993). Ark. the jury may choose to believe a simply of the of each portion testimony party. John Clark, Here, son v. 832 S.W.2d found that implicitly Mrs. Druckenmiller’s claim Mr. that Cluff’s negligence was was not cred proximate cause collision ible.
But, more to the point, Mrs. own Druckenmiller’s statements on cross-examination the trial amply warranted court’s submis- court, sion of the of her question to the The trial jury. therefore, did not err in this and we so regard, hold. ” —
II. “Sudden emergency instruction AMI 614 reversal, In her second for point argues Mrs. Druckenmiller that, in the alternative if there concern- submissible issue ing her negligence, she was still entitled to the benefit instruction, 3d, “sudden AMI emergency” Civil 614: A who is person suddenly confronted unexpectedly with danger to himself or others not caused his own is not to use the required same that judgment him in calmer more deliberate moments. required He is to use the care that a care- required only reasonably ful would use in the same situation. person Mrs. Druckenmiller AMI 614 proffered reading during instructions, and the trial court refused to it but noted the give trial, however, The evidence at that proffer. presented showed was not instruction appropriate. the giving to warrant order we have said Recently, dic- in a situation must be stressful the driver courses of conduct. regarding possible tates a decision quick (1993). Before Dischler, Ark. Diemer v. instruction, have been aware she must to the is entitled person *7 have and must emergency, the must have danger, perceived Id. danger. the by the stress caused with acted in accordance 112, Ark. McElroy Benefield, in v. For example, emer- (1989), the of the sudden we giving approved the surrounding the circumstances because of instruction gency that, Benefield, he came over as testified accident. The appellee, road, at the sitting vehicle he saw the appellants’ a in the rise hit- ease over to avoid and he decided to the edge highway, of however, so, suddenly McElroys the he was doing it. As ting brakes, on his Benefield slammed out in front of him. pulled held of We impact. feet to the point a distance of 108 skidding he was contention that Benefield’s supported that the evidence emergency. with a sudden confronted Dischler, hand, we held supra, in Diemer v. the other On the dan- for that finding trial had a sound basis that “the court the as to instruc- justify or unexpected was not so sudden ger There, the Ark. at 795. appellant, Ark. at tion.” 313 Diemer, from an intersection had a curve some distance rounded Dischler, had begun driven the appellee, where a forklift that he traffic. stated saw in her lane of Dischler cross and was a of between toward him from distance heading Diemer’s car fast” speed, feet at what appeared “pretty 200 to 300 that, the given posted testified two accident reconstructionists time, have stopped reaction Diemer could limit and natural speed at least two or could have exercised before the forklift hitting options. case, evidence of noted that where the
In the Diemer
we
“very
is
party
on the
negligence
part
requesting
some
the
instruc-
not entitled to
is
strong,”
party
of two
view
an
reconciliation
attempted
pre-
tion. This
represents
vious,
formu-
and was first
inconsistent
apparently
approaches,
Ford,
v.
Court of
Ashmore
Appeals
lated
the Arkansas
1979):
(Ark.
Ark.
Two lines
Some
of
this instruction.
giving
on the
developed
propriety
it
out that
the
the instruction
say
language
pointing
the
seeking
where the
only
negligence
party
applies
safe-
is a sufficient
instruction did not cause the
even
given
bemay
thus
the instruction
guard,
implying
on
part
when there is some evidence of
See,
v. DeJar-
Hooten
e.g.,
instruction.
party seeking
nett,
say
Others
237 Ark.
party seeking
not be
where the evidence
given
very strong
the emer-
the instruction has “created”
party requesting
*8
gency by
negligence.
his own
860,
Ark. at
the
adopted
267
In we considering present standard is “very strong” concluded that Ashmore v. Ford’s the law where AMI 614 confusing misleading statement of concerned, we retreat from our set position and for this reason Ass’n, supra, in v. Farmers’ Scoggins forth both Southern Dischler, emer v. The of the sudden supra. language Diemer suddenly in who is instruction terms of gency speaks person “[a] or others confronted with to himself danger and unexpectedly verbal qual no negligence” caused his own supplies not strong” standard. justify “very ifier or intensifier Ass’n, Thus, v. Southern Farmers’ Scoggins our cases since that the instruction regarding have supra, interpolated position Specifi- AMI clear language. with 614’s is in fact inconsistent that, Dischler, under the see- we held supra, in Diemer v. cally, found that readily could have the trial court nario presented, had been speeding that Diemer sufficiently strong evidence was therefore, and, the emergency to create and thus helped corollary AMI 614. The give correctly trial court refused of negli- that if the evidence necessarily would this rationale merely AMI 614 is seeking of one to invoke gence read to the to have the instruction she is entitled slight, or to a sub- would amount of such a principle jury. application doctrine. emergency of the sudden version itself, we conclude language In reexamining that, the neg- or from wholly when an arises emergency partially the sudden who seeks to invoke ligence doctrine, person be deliv- and should not AMI 614 has no application Stevens, Ark. 855 S.W.2d Smith v. jury. ered to the See Carr, Nelson, 242 Ark. v. (1993); v. Johnson supra; Williams DeJarnett, (1967); v. supra. Hooten of AMI we hold reading this narrower Applying the sudden refusing give the trial court did not err above, acknowledged Druckenmiller instruction. As Mrs. quoted intersection, at a dis- in the turning that when Mr. Cluff she saw feet, decided she seventy-five to one-hundred tance between could get him in the belief that she heading to continue toward until she was about him. did not her brakes around She apply further, truck, and, “did not have to she feet from fifty away Dischler, in Diemer v. on brakes.” Like the my appellant slam already had a clear view of a vehicle supra, Mrs. Druckenmiller McElroy Benefield, in an Unlike the situation intersection. of an oncom- supra, veering there was no sudden into path vehicle. ing *9 here, Mrs. Druck-
If there an it was one of emergency take an cannot emergency enmiller’s One who creates making. Stevens, indi- we have supra. of AMI 614. Smith v. As advantage terms, cated, emer- by only its own the instruction applies, In the Smith own Id. by negligence. not caused gencies person’s hill, case, drivers at the crest of a and both two vehicles collided until about two sec- did not the other vehicle they stated that see made efforts immediately and that they onds before the impact had cre- assertion that other We one stop. rejected party’s held, created by we “was Any emergency, ated the emergency.
527 538, nature hill and road.” 313 Ark. at S.W.2d 855 at 326. case,
In the present Mrs. Druckenmiller had though, the benefit of a and level road a clear field of vision. She sim reiterate, ply waited too long begin To braking. one cannot create an her own and emergency by action then seek to benefit an instruction on requesting sudden emergency. Williams v. Carr, Hence, held, supra. we have trial as court did not err declining read AMI 614 to the jury.
Affirmed.
Glaze, J., concurs. Glaze, Justice, I concur. concurring. court Today, Tom an corrects obvious of the law which crept misstatement has into 614, a few Arkansas cases where AMI our “sudden emergency” instruction, has been in The recurring issue. error is obvious and this court’s attention and required correction. 3d,
AMI Civil 614 as follows: provides A who is person suddenly unexpectedly confronted danger with to himself or not caused his own others negligence is not to use same required judgment of him in calmer and more deliberate moments. required reasonably He is to use the care that a care- required only person (Emphasis ful would use the same situation. added.)
As can
discerned from AMI 614’s
readily
language,
may
doctrine has no
not be
application
asserted if the
neg-
arises
or
from
wholly
partially
of the one
to invoke the doctrine. See Smith
ligence
who seeks
Stevens,
534,
(1993);
855
v.
S.W.2d 323
Williams
Carr,
Nelson,
(1978);
Ark.
263
Johnson v.
DeJarnett,
(1967);
Hooten v.
237
Ark.
Barry
Ark.
376 S.W.2d
See also J. D. Lee and
Lindahl,
(rev.
1993);
A.
ton,
ed.
Kee-
Page
Mod Tort Law 3.37
W.
§
al.,
et
Prosser and Keeton on Law Torts
at 196-197
§
Woods,
(2nd
(5th
1984);
Comparative
ed.
Fault 4:8
ed.
Henry
§
1993).
Supp.
*10
to AMI 614’s clear
several cases have
Contrary
language,
in
that have
the law
For
our
differently.
example,
surfaced
stated
Dischler,
154,
recent
of Diemer v.
313 Ark.
852 S.W.2d
most
case
court,
(1993),
v. Southern Farmers’
citing Scoggins
this
Assn.,
426,
(1991),
304 Ark.
AMI 614 the sudden not be caused requires emergency the the instruction. negligence party requesting that where regard Wehave held in this the evidence some “very party the the part requesting on (Empha- is not entitled to the instruction. strong,’’ party added.) sis foregoing
Diemer at 159. In misstatement of applying that, law in AMI the Diemer court held under the facts exis- there, have found that evi- readily tent the trial court could dence that Diemer was sufficientlystrong helped speeding thus, the trial correctly create the court refused emergency, course, been, if corollary AMI 614. Of rule would have give seeking the evidence had been slight party would have been entitled to have it invoke or she read to the Such a result is a sudden jury. misapplication emergency doctrine.
This court’s or of this misapplication misinterpretation prior treatise, In obviously doctrine is not uncommon. their Profes- sors Prosser and Keeton state as follows: logic the basic of the sudden
Despite simplicity doctrine, it is all too on frequently misapplied result, facts or misstated instructions. As'a Illinois, Florida, model instructions in at least Kansas and Missouri recommend that no such instruction be given, the doctrine altogether abolished 1980. Mississippi Keeton, al., PageW. et Prosser and Keeton on the Law Torts (5th 1984). at ed. § Woods, in Henry his edition and ludge update, points other states adhering comparative concept have since abolished the doctrine. Eslinger See
529
Lines, Inc.,
v. Ringsby
(1981);
Truck
Mont.
254
195
636 P.2d
(Miss.
Knapp
1980);
v. Standford, 392 So.
cited as Contra
196
Clark,
(Colo. 1991);
v.
814
Young
P.2d
v.
364
Keller Vermeer
Co.,
Mfg.
(N.D. 1984).
N.W.2d
360
502
See
Miller v. Eich-
also
horn,
(Iowa
1988)
426 N.W.2d
644
v.
App.
Bellas
Industries, Inc.,
(La.
Dressier
4
564
1305 n.
1st Cir.
App.
So.2d
cert,
1990),
(these
denied at
Other more recent cases in sister
have
jurisdictions
joined
the trend either to restrict the
emergency
use
sudden
instruc
tion in
cases or
it
to abolish
v.
altogether. DiCenzo
Izawa,
(Hawaii 1986) (inasmuch
723
171
P.2d
as the risk of prej
udicial error in
instructing
jury
emergency]
[sudden
so,
doctrine
exceeds
far the
of error in not
possibility
doing
thinks the wiser course of action
be
[the
would
to with
court]
Williams,
hold
instructions);
sudden emergency
Bass v.
S.W.2d
1992) (with
(Ky. App.
adoption
comparative
negligence, it
error
the jury
instruct
on a sudden emergency
theory);
v.
(Mo.
1986)
Cowell
In reviewing those jurisdictions cases from that have adopted fault, the comparative courts have appellate stated that generally in problem giving the sudden instruction is that emergency it out singles one standard care and aspect general may give the doctrine of emergency sudden undue and may emphasis unduly one a argument certain emphasize party’s regarding of the standard of care. The Hawaii Court worded it Supreme another “It be way, saying, would foolhardy jeopardize outcome of trial a giving instruction emergency] [sudden little the basic adding charge that must in given any Izawa, negligence action.” 173. P.2d at DiCenzo of the sudden utility emergency doctrine seems of lit- tie value to me in of our state’s adherence to the light compara- view, tive doctrine view. In where a fault my occurs, that is circumstance for when only consider determining whether a care person exercising under ordinary the circumstances. An instruction adds to the nothing law established applicable any negligence case and serves only to leave an the minds impression jurors that driver is excused from the somehow standard of care ordinary because an *12 existed. instruction does little more than confuse and courts when its attorneys weighing application, under- so when are standably agree about to they giving com- upon fault instruction. If this parative has been bench confusing (and been), and bar cases treatises reflect it has surely we cannot better from a expect any jury which must be con- founded such choices. certainly
I with the agree court’s decision to our law clarify that AMI should never hereafter applicable in situations where there is evidence of any party to invoke it. I seeking think court Preferably, should abolish use since emergency doctrine its is unnec- use instruction, essary, Arkansas’s considering fault comparative serves mainly confound those who must it. apply FINCH, NEAL, Director, A. Jr. Roy v. Jim Executive Arkansas Supreme Court Committee on Professional Conduct 93-1190 Court of Arkansas
Supreme delivered Opinion April