This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Reversed and remanded
Hennepin County District Court
File No. PI0410647
Thomas E. Kiernan, Kiernan Personal Injury Attorneys, P.A., Suite 400, 1630 Anderson Avenue, Box 433, Buffalo, MN 55313 (for appellant)
James A. Jardine, Votel, Anderson, McEachron & Godfrey, Suite 1250, 444 Cedar Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*
Appellant challenges the denial of his motion for judgment notwithstanding the verdict (JNOV) or a new trial, arguing that the district court abused its discretion by instructing the jury on the emergency rule. We reverse and remand for a new trial.
Respondent Derek Dees ran a red
light and collided with a vehicle operated by appellant Andrew Barnes, who had
entered the intersection on a green light.
Over Barnes’s objection, the district court instructed the jury on the emergency rule as follows:
Now, if there was an emergency that a person did not cause, that person is not negligent if he acted in a way a reasonable person would have acted. In deciding if he or she acted reasonably consider the circumstances of the emergency and what the person did or did not do.
Barnes moved for JNOV or a new
trial, arguing that (1) viewing the evidence in the light most favorable to
Dees, the evidence could not support a finding that Dees acted reasonably; (2)
the evidence did not support giving the emergency-rule instruction; (3) the
instruction given was erroneous because it did not inform the jury that Dees
had the burden of proving the existence of an emergency not of his own making; (4)
the emergency rule is an affirmative defense which was not pleaded and
therefore was waived; and (5) the timing of Dees’s request for the instruction
created prejudicial surprise that could not have been anticipated and left
Barnes unable to defend against the claimed emergency. The district court denied both motions stating
that because the modern emergency-rule instruction “is so bland,” the district
court was less concerned about limiting the kinds of emergencies to which it
can be applied. The district court also
stated that although it was surprised by the verdict, “a reasonable jury could
find that, given the mental and physical jarring that occurs from violent
“A party challenging a jury’s
apportionment of negligence must show the verdict is manifestly and palpably contrary
to the evidence.” Tuckner v. Chouinard, 407 N.W.2d 723, 725 (
district court has broad discretion in determining jury instructions and we
will not reverse in the absence of abuse of discretion.” Hilligoss
v. Cargill, Inc., 649 N.W.2d 142, 147 (
Barnes first argues that the
district court abused its discretion when it instructed the jury on the
emergency rule because the evidence does not support a conclusion that an
emergency existed in this case. The
emergency-rule instruction given is almost a verbatim reading of CIVJIG 25.16. 4
[O]ne suddenly confronted by a peril, through no fault of his own, who, in the attempt to escape does not choose the best or safest way, should not be held negligent because of such choice unless it was so hazardous that the ordinarily prudent person would not have made it under similar conditions.
Consequently, even though faced with an emergency, . . . a driver is nevertheless obligated to make a reasonable effort to avoid a collision, and whether [the driver] uses reasonable care commensurate with the sudden peril with which [the driver] is confronted is ordinarily a question of fact for the jury.
The courts have recognized that an actor who is confronted with a sudden emergency may be left no time for thought, or may reasonably be disturbed or excited, and so cannot weigh alternative courses of action, but must make a speedy decision, which will be based very largely upon impulse or instinct. . . .
The ‘emergency’ doctrine is applied only where the situation which arises is sudden and unexpected and such as to deprive the actor of all opportunity for deliberation.
Minder v. Peterson, 254
Where the evidence is such that the jury may find either way on the question of whether a litigant has created an emergency, it is proper to instruct the jury on the emergency rule with directions that it is to be applied only if the jury finds that the emergency was not created by the one who seeks to invoke the rule.
In this case, the district court
defined the emergency as the sneezing described by
[T]he first one I thought, you know, it’s a sneeze; with the second I wondered what was up; and, with the third one I had started thinking I need to, you know, stay in my lane and not move to either side in case somebody was either oncoming or had turned onto the road with me.
We conclude that the evidence in
this case, viewed in the light most favorable to Dees, does not give rise to a
jury question regarding whether sneezing constituted a sudden peril that
Because we have concluded that the
facts of this case did not justify giving the emergency-rule instruction, we do
not address Barnes’s arguments that a request for the instruction constitutes
an affirmative defense or that the timing of the request in this case was so
prejudicial as to entitle him to a new trial.
Reversed and remanded.