This is an appeal from the circuit court’s directed verdict in favor of Kathleen Baska and against Steve Saunders on his negligence claim arising from an automobile accident at an uncontrolled intersection. Appellant Saunders contends the directed verdict was improper because he presented a submissible case of negligence based on Baska’s failure to yield the right-оf-way and failure to keep a careful lookout. For reasons explained herein, we reverse the directed verdict and remand for a new trial.
Factual & Procedural History
On November 25, 2008, at approximately 7:00 A.M., Steve Saunders was driving his automobile east on Northwest 86th Street in Platte County. At the same time, Kathleen Baska, who had just picked up her friend, Shelbi Webb, was driving her automobile north- on North Pontiac Avenue, which meets Northwеst 86th Street at an uncontrolled intersection. Baska approached the intersection from Saunders’s right, and Saunders was to Baska’s left. The two vehicles collided at the intersection. Saunders was injured, and both vehicles were damaged in the collision.
On July 29, 2010, Saunders filed a petition for damages against Baska. The petition, as amended, alleged that Baska was negligent in failing to keep a careful lookout, failing to yield the right-of-way, and driving at an excessive speed. The amended petition sought actual and punitive damages.
At trial, Saunders testified that he lives on Northwest 86th Street, four houses down from the intersection. Saunders said he had no recollection of the accident, testifying: “I remember getting in my car, backing out of the driveway. I remember starting up the street. And after that the next thing I remember was somebody beating on the window of my vehicle with a — looked like a shoe.” Despite his lack of recollection at trial, Saunders provided medical records to indicate that he told one of the responding EMTs at the scene that “he was traveling approximately 10 miles an hour when he was impacted by a car traveling at 10 to 15 miles an hour.”
Saunders presented three photographs tо show that his vehicle sustained damage to the right-side front fender and right-side back fender. Two additional photographs showed that Baska’s vehicle sustained heavy front-end damage, particularly to its left front. Another photograph showed that Baska’s view from the intersection to her left was unobstructed.
Saunders also called Baska as a witness. Baska, who was sixteen at the time of the accident, tеstified that she came to a complete stop at the intersection, looked both ways, and observed no oncoming traffic. Baska testified that she had an unobstructed view in the direction from which Saunders’s vehicle approached the intersection! She proceeded into the intersection upon observing that no cars were approaching. It was not until Baska had entered thе intersection that she noticed, with her peripheral vision, Saunders’s vehicle travel
On direct examination by Saunders’s counsel, Baska admitted she was running late on the morning of the accident. Saunders’s counsel engaged Baska in a line of questioning regarding text messages sent and received on her cell phone within minutes of the accident. Baska stated that the collision occurred at approximately 7:05 A.M. Baska’s phone records indicate that she sent a text message at 7:04 A.M. and received a text message at 7:06 A.M. At trial, Baska explained that she sent the 7:04 A.M. text message while parked in Webb’s driveway and that she put her phone away once Webb got into the car. Baska denied that she was texting while driving.
Baska moved for a directed verdict at the close of Saunders’s evidence. The court granted the motion with regard to the request for punitive damages but denied a directed verdict on the negligence claims.
Baska thereafter presented the deposition testimony of her passenger, Shelbi Webb, and Webb’s mother, Robyn Plickeb-aum. Webb testified that Baska brought her vehicle to a full stop and looked both ways before entering the intersection. In response to a question as to her estimate of the speed at which Saunders’s vehicle was traveling, Webb testified: “I’m — I’m assuming at a faster pace than what he should have been going because I did not see him beforе he hit us. It was like there w[ere] no cars and then he was there.” When asked how fast Baska was traveling at the time of the accident, Webb answered: “Not fast at all. I mean, I’m not sure we were going yet.” Webb testified that, at the time the collision occurred, Baska was “about to” or “starting to” enter the intersection.
Plickebaum testified that the accident occurred “up the street” from her home. She heard the collision, shortly after Webb left the home with Baska, and rushed to the scene. Plickebaum did not see the accident, but Webb told her that [Baska] “didn’t do anything wrong.” Plickebaum also testified that Baska called her to apologize after the accident.
Baska renewed her motion for directed verdict at the close of all evidence. The circuit court granted the motion, directing a verdict in Baska’s favor on all of the negligence claims. Thereafter, Saunders filed a motion for new trial, which the circuit court denied. Saunders appeals.
Analysis
Saunders contends the circuit court erred in granting Baska’s motion for a directed verdict at the close of all the evidence. “In reviewing a trial court’s judgment granting a motion for directed verdict, we must determine whether the plaintiff made a submissible cаse.... ” Dunn v. Enterprise Rent-A-Car Co.,
“To make a submissible case of negligence, a plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, that the defendant failed to perform that duty, and that the defendant’s failure proximately caused injury to the plaintiff.” Boggs ex rel. Boggs v. Lay,
Failure to Yield the Right-of-Way
In Point I, Saunders contends the circuit court erred in granting the motion for directed verdict because he presented substantial evidence of Baska’s negligеnce in failing to yield the right-of-way.
“ ‘Right of way' means the right of one vehicle to proceed ahead of another.” Moreland v. Crain,
Reading these two subsections together, when two vehicles enter an uncontrolled intersection from different highways, the driver of the vehicle on the right has the right-of-way if (1) the two vehicles enter the intersection at approximately the same time, or (2) the vehicle on the right entered the intersection first. Stated differently, to make a submissible case as to the duty element of his failure to yield the right-of-way claim, Saunders — as the driver of the vehicle to the left of Baska — had to present sufficiеnt evidence from which reasonáble minds could conclude that he entered the intersection before Baska.
Saunders presented photographs showing that his vehicle sustained damage to the right-side front and back fender, and Baska’s vehicle sustained heavy front-end damage, particularly to its left front. Saunders asserts.that the location of damage on the parties’ vehicles establishes thаt he “had traveled one and a half lanes through the intersection before [Baska] pulled a few feet forward ... thereby crashing her front end into the passenger side .of [his] vehicle.” See Boone v. Richardson,
“The absolute duty imposed upon a defendant by ordinance or statute to yield the right of way is negative in character.” Haymes v. Swan,
Failure to Keep a Careful Lookout
In Point II, Saunders contends the circuit court erred in granting the motion for directed verdict because he presented substantial evidence to make a submissible case that Baska was negligent is failing to keep a careful lookout.
“A failure tо keep a lookout submission contains two inherent components.” Kearbey v. Wichita Southeast Kansas,
Here, in granting Baska’s motion for a directed verdict, thе circuit court reasoned that, as to Saunders’s failure to keep a lookout claim, Webb’s and Baska’s testimony that Baska stopped and looked both ways was “uncontroverted and uncontested” and “reflect[ed] that Ms. Baska did keep a careful lookout.” However, “[m]erely looking does not fulfill one’s duty to keep a careful lookout.” Id. “ ‘A person is required to look in such an observаnt manner as to enable him to see what one in the exercise of the highest degree of care could and should have seen.’ ” Id. (emphasis added) (quoting Hill,
Additionally, the circuit court erred in finding that the testimony of Bas-ka and Webb was uncontroverted. “ ‘Generally, it is impossible for a party to produce direct evidence that the other party was not looking’ ” and, thus, “ ‘proof can be made circumstantially.’ ” Id. (quoting Finninger v. Johnson,
A photograph introduced into evidence shows that Baska’s view from the intersection to her left was unobstructed to at
Despite proof of Baska’s unobstructed view, in order for Baska, in exercising the highest degree of care, to have been able to see Saunders, Saunders would need to have already backed out of his driveway and begun travelling east on Northwest 86th Street at the time Baska stopped at the intersection and looked. Although there was no direct evidence that Saunders was already traveling on Northwest 86th Street when Baska reached the intersection, such conclusion could be reasonably inferred from (1) the fact that, after backing out of his driveway, Saunders had to drive the distance of at least three houses before reaching the intersection; (2) Saunders’s statement to the EMT that he was traveling ten miles an hour; and (3) Bas-ka’s and Webb’s testimony that the collision occurred immediately after Baska had stopped at the intersection.
Saunders also presented evidence that Baska was text messaging on her cell phone around the same time the accident occurred. Additionally, Baska admitted that she was running late on thе morning of the accident. From this evidence, a jury could reasonably infer that, as Baska reached the intersection, she was distracted and looked to her left so hastily that she failed to see Saunders’s vehicle, which she could and should have seen. See C.J.S. Motor Vehicles § 662 (2012) (“A reasonable inference of negligence may be presented by evidence that the driver was using a cell phone at the time of a rear-end accident and was distracted as a result.”).
Our analysis does not end here. As mentioned earlier, there are two components to a failure to keep a lookout submission; “[p]roof of failure to keep a careful lookout, standing alone, is not enough.” Williams v. Christian,
In Hudson, plaintiffs’ southbound vehicle collided with defendant’s westbound vehicle at an intersection where defendant had a stop sign but the plaintiffs did not. Id. at 421-22. Defendant stopped at the stop sign, did not see plaintiffs, and then proceeded into the intersection, at which
On appeal, defendant contended that plaintiffs did not establish that defendant had sufficient time and distance to take precautionary action and, thus, plaintiffs failed to make a submissible lookout case. Id. at 428. This court disagreed, finding that “effective precautionary action would have been for [defendant] to have remained stopped, and to have refrained from pulling оut into the intersection in front of [plaintiffs’] car.” Id. at 429. Therefore, this court held that evidence of time and distance was unnecessary under the circumstances of the case because the “[defendant] created the danger of a collision by failing to see the [plaintiffs’] car before pulling out in front of it.” Id.; See also McWilliams v. Wright,
Similar to Hudson, the absence of precise time and distance evidence in the instant case does not preclude submission of the claim because “[t]his is not a situation where both cars were in motion on an intersecting path at the time [Saunders’s] car became visible to [Baska] at the intersection.” Hudson,
Conclusion
The judgment is reversed, and the cause is remanded for a new trial.
All Concur.
Notes
. Baska testified that there was "more of a hill” than shown in the photograph. Baska also stated: "There was on my left-hand side a big — a—a tree that blocked the view of the hill, but there was enough in front of that tree that I could tell there was no cars there.” See Zempel v. Slater,
. In McWilliams, upon noticing an eastbound driver’s headlights right in front of him, a westbound motorcyclist swerved into the eastbound lane of traffic and collided with the eastbound driver.
. In Williams, a pedestrian was struck by an eastbound driver while standing on the south shoulder of the eastbound lane of traffic.