Hеlen THOMAS, Mother and Next Friend of Amanda K. Thomas, and Helen Thomas, Appellants, v. John C. GILLIAM, Appellee.
No. 68566.
Supreme Court of Oklahoma.
April 11, 1989.
Rehearing Denied June 20, 1989.
774 P.2d 462
Summary judgment is proper only when the pleadings, affidavits, depositions, admissions, or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.7 The doctors’ and employees’ conduct demоnstrates the presence of an issue of fact—the degree of negligence which the individuals exercised. Like the allegations in Neal, the allegations and the deposition testimony taken as a whole might be construed to support a finding of wilful, wanton, conduct amounting to gross negligence. Issues of negligence and the degrees thereof are questions for the trier of fact.8 Because of the еxistence of disputed facts concerning the gross negligence of the hospital physicians and staff, the trial court erred in entering summary judgment.
AFFIRMED IN PART; REVERSED IN PART
HARGRAVE, C.J., OPALA, V.C.J., and LAVENDER, DOOLIN, ALMA WILSON, and SUMMERS, JJ., concur.
SIMMS, J., concurs in part, dissents in part.
Duke Halley, Duke Halley Law Office, Woodward, for appellants.
Romain S. Mossman, Woodward, for appellee.
KAUGER, Justice.
FACTS
On June 6, 1984, the appеllee, John C. Gilliam, was driving his van in a southerly direction on Lakeview Drive in Woodward, Oklahoma, traveling at a speed of approximately thirty five miles per hour. He saw two girls, who appeared to be between eight and eleven years old. The girls were walking and skipping on the right side of the road near the middle of the south-bound lane. After he saw the girls, Gilliam reduced his speed to approximately twenty-five miles per hour, honked his horn twice, and because there was no approaching traffic, moved over to the left side of the road. As he passed the girls, he slowed to approximately fifteen miles per hour. Suddenly, nine-year-old Amanda K. Thomas pivoted left, ran across the center of the road and collided with his car.
Her mother and next friend, Helen Thomas, filed an action in the district cоurt of Woodward County seeking damages for Amanda‘s injuries. At the conclusion of the evidence, Amanda‘s attorney requested that the jury be instructed on two “care required for safety of child” instructions. The trial court refused to give the requested instructions because No. 10.5 of the OUJI-CIV provides that no special instruction should be given on the care required for the safety of a child. The jury, in a 10-2 verdict for the appellee, assessed the comparative negligence of the parties. The child was found to be 75% negligent, and the driver to be 25% negligent in causing the accident and the resulting injuries.
Amanda appealed, and the Court of Appeals found that the trial court erred when it refused to give her requested instructions concerning the standard of care of drivers toward children. The Court of Appeals noted that the requested instructions
THE TRIAL COURT PROPERLY FOLLOWED THE OKLAHOMA UNIFORM JURY INSTRUCTIONS—CIVIL NO. 10.5.
A
In 1968, the Oklahoma Legislature authorized the Supreme Court of the State of Oklahoma to prescribe and institute uniform instructions to be given in jury trials of civil cases in order to effectuate an equal and uniform administration of justice.1 The Legislature recognized that many judgments in actions tried by juries were reversed because of errors in jury instructions; and that in some instances, justice was withheld, delayed, or denied because of erroneous instructions.1 (The obvious purpose of the OUJI is twofоld: 1) to provide juries with clear, concise, uniform, and unbiased instructions to guide their deliberations; and 2) to increase the efficiency of trial counsel and trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects.)2
On December 14, 1981, the Oklahoma Supreme Court adopted the Oklahoma Uniform Jury Instructions—Civil (OUJI-CIV) with an effective date of January 1, 1983. The Oklahoma Uniform Jury Instructions were first considered in a criminal case. The Oklahoma Court of Criminal Appeals examined the refusal of the trial court to give the Oklahoma Uniform Jury Instruction—Criminal (OUJI-CR) NO. 744, the instruction on self defense, and No. 749 defining “aggressor” in Keith v. State, 709 P.2d 1066, 1070 (Okla.Crim.1985). It found that the uniform instruction on self defense was clear and concise, and that the instruction the trial court gave was not. It also found that the trial court‘s instruction failed tо adequately define “aggressor“. Because of the accumulation of errors, including the failure to use the OUJI-CR, the case was reversed and remanded.3
B
Instruction No. 10.5 of the OUJI-CIV, “Care Required for Safety of Child“, states that no instruction should be given. The explanation for not giving the instruction is that:
A ‘Care required for safety of child’ instruction should not be given. The standard of care is ordinary care, and anticipation of the behavior of children is one circumstance as to what constitutes ordinary care in the situation. The essence of the instruction is that one must аnticipate the ordinary behavior of children and exercise greater care for their protection.
The statute is couched in language which leaves no doubt concerning the mandatory nature of the OUJI. Pursuant to
Failure to use the uniform instruction is error unless the court finds an instruction to be erroneous or otherwise improper, and so states its reasons for not using the OUJI into the record.7
The recognition of the propensities of children is within the common knowledge of the ordinary juror, and is an implicit factor in any jury‘s deliberation in reaching a verdict.8 It is readily apparent that ordinary care, insofar as young children are concerned, involves the exercise of greater care. Therefore, there was no reason to include a special instruction on the care required for the safety of a child.
CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; TRIAL COURT AFFIRMED.
HARGRAVE, C.J., OPALA, V.C.J., and LAVENDER, DOOLIN and SUMMERS, JJ., concur.
HODGES, SIMMS and ALMA WILSON, JJ., dissent.
SIMMS, Justice, dissenting:
I respectfully dissent. I agree that Oklahoma Uniform Jury Instructions (OUJI) should be given when the facts in evidence so indicate. I cannot, however, accede to the view expressed today that the OUJIs should necessarily be given to the exclusion of other instructions which more accurately state the law in Oklahohoma and which, as in this case, are instructions this Court has consistently recognized as proper when dealing with the degree of care required for the safety of a child. Nor can I accept the majority‘s apparent reliancе on committee comments to the instructions as support for the result pronounced today.
The long settled common law rule in Oklahoma is that a child of tender years cannot be guilty of contributоry negligence. Hampton v. Hammons, Okl., 743 P.2d 1053, 1061 (1987); Connor v. Houtman, Okl., 350 P.2d 311 (1960). The age parameters wherein children are deemed to be of tender years is equally well settled and undisputed. A child under the age of seven years or, in the absence of evidence establishing capacity, one between the ages of seven and fourteen years, is presumed incapable of negligence. See: Ramage Mining Co. v. Thomas, 172 Okl. 24, 44 P.2d 19, 23 (1935); City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724 (1913). See also: Strong v. Allen, 768 P.2d 369, 372 n. 1 (1989) (dissenting opinion by Opala, V.C.J.). The Oklahoma Uniform Jury Instructions were not adopted as a means to eviscerate the common law rules in Oklahoma. Judge William Means of the Court of Appeals,
“On appeal plaintiff argues that the court erred in refusing her requested instructions Nos. 16 and 17, concerning the standard of care of drivers toward children. Plaintiff‘s requested instruction were based on Bready v. Tipton, Okl., 407 P.2d 194 (1965), and Lawrence v. Eicher, Okl., 271 P.2d 320, 323 (1954). These instructions correctly state the law in Oklahoma regarding the standard of care of drivers toward children. As the Bready court noted, ‘children are not in the same category as normal adults.’ 407 P.2d at 199. Thus ‘the law imposes upon a motorist the duty to exercise in behalf of such child’ a ‘degree of extreme caution.’ Id.”
“The trial court committed reversible error in failing to instruct the jury concerning the appropriate standard of care. While the court‘s instructions regarding nеgligence and comparative negligence were correct statements of law, these instructions were imcomplete without a statement concerning the duty of motorists toward children. Thus, the failure of the trial court to give any instruction similar to Plaintiff‘s requested instructions Nos. 16 and 17 was error.”
Blind, dogmatic, dedication to a set of Uniform Jury Instructions in disregard of settled principles of common law doеs, in my view, a grave disservice to both the concept of a system of uniformity in decision making and to our system of justice under law in general. This is also why I am troubled by the majority‘s apparent deference to the committee comments which accompany the OUJI in question. While, in the narrowest sense, the questions decided today are of first impression in Oklahoma, such is not the case in neighboring jurisdictions. The decisions from those jurisdictions could have provided the majority with some helpful insight.
Not too recently, the Supreme Court of New Mexico was called upon to examine that state‘s uniform instructions in an analagous context in Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970). In Jewell, the issue was what effect the failure to use a uniform instruction had on the appellant‘s trial. There, the court conducted a thorough analysis of cases from other jurisdictions and recognized that, while the New Mexico uniform instructions were mandatory, that court “did not intend to place form over substance in adopting the instructions“, 477 P.2d at 300; the instructions were to be a standard by which the court determined whether or not there had been a fair trial. Other jurisdictions with mandatory uniform jury instructions have reached similar results with similar reasoning. See e.g.: Florida East Coast Railway Co. v. McKinney, 227 So.2d 99 (Fla.App.1969); Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968); Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157, 159 (1968).
More recently, the New Mexico courts observed that Committee Comments were of no relevance in deciding whether a uniform instruction should be modified: “[c]ommittee comments are not the equivalents of the Directions for Use.” O‘Hare v. Valley Utilities, Inc., 89 N.M. 105, 547 P.2d 1147 (App.1976), rev‘d in part on other grounds: 89 N.M. 262, 550 P.2d 274 (1976). The majority‘s reliance on committee comments in reaching its result here is misplaced. Today‘s pronouncement elevates rule by committee over the rule of Common Law. I feel compelled to nоte also the inherent inconsistency in that very committee comment. On one hand, it is stated that no instruction should be given, that ordinary care is the proper standard. However, the very next sentence recognizes a duty to “exercise greater care for their protection.”
The very statute which authorizes the use of Uniform Jury Instructions in Oklahoma recognizes that there may be inherent inadequaсies in those instructions when applied to various cases. The plaintiff‘s proposed instructions are the proper, accurate, statements of Oklahoma Law regarding the duty owed by drivers to children of tender years. Therefore, I would deny certiorari in this case which would leave the matter remanded for a new trial consistent with the opinion of the Court of Appeals.