This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Roberta Berg, et al.,
Katherine Margaret Roth,
Filed March 20, 2007
Reversed and remanded
Hennepin County District Court
File No. 27CV04-014043
Richard J. Sheehan, Harvey & Sheehan, Ltd.,
Roger L. Kramer, Gislason & Hunter, L.L.P.,
Michael B. Padden, Padden & Associates, P.L.L.C., 782 Northwestern Building, 275 East Fourth Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
At the close of evidence in a jury trial on Roberta Berg’s negligence claim, the district court entered judgment as a matter of law determining that Katherine Roth’s negligence was one-hundred percent and Berg’s negligence was zero. Because the district court erred by applying a nonrebuttable per-se-negligence standard rather than a rebuttable prima-facie-evidence standard, we reverse and remand.
F A C T S
Berg was severely injured in an automobile-bicycle accident in November 2001,
when Katherine Roth’s vehicle rolled over Berg after she fell with her bicycle at
At trial in October 2005, Berg and
Roth each testified, and the court received into evidence photographs of the
intersection where the accident occurred.
Berg testified that she had been riding her bicycle to work every day for
at least fifteen years. The accident
occurred under daylight conditions on clear and dry pavement, and the weather
was not a factor. Berg was wearing a
yellow jacket and riding her bicycle east on the sidewalk extending along the
north side of
When Berg was roughly twenty-five
feet away from the intersection at
testified that she was driving south on
At the close of evidence, Berg’s counsel moved for a judgment as a matter of law determining Roth’s negligence to be one-hundred percent and Berg’s zero. The district court granted the motion. In response to posttrial motions, the district court denied Roth’s motion for a new trial. The district court also granted Berg attorneys’ fees and costs under Minn. Stat. § 549.211 (2006) after concluding that Roth failed to comply with the parties’ pretrial settlement agreement to tender the policy limits of $100,000. This appeal followed.
D E C I S I O N
district court may grant a judgment as a matter of law in a jury trial when the
evidence is insufficient to present a fact question for the jury.
In ordering judgment for Berg as a matter of law, the district court found that (1) Roth was negligent and (2) Berg was not negligent. In its written order the court concluded that Roth was per se negligent because she violated traffic laws when she failed to yield to a pedestrian who had the right-of-way. See Minn. Stat. §§ 169.06, subd. 5(a)(3)(iii) (providing that driver attempting right turn on red traffic signal must yield right-of-way to pedestrians lawfully crossing), .222, subd. 4(f) (extending rights and duties of pedestrians to bicyclists lawfully on sidewalk) (2006). The court then found that Roth’s negligence was the direct cause of the accident and granted Berg’s motion.
the violation of a statute is per se negligence.
the record contains evidence that tends to excuse or justify the offender’s
conduct, “the question of negligence is for the jury.” Kirsebom
v. Connelly, 486 N.W.2d 172, 175 (
record in this case contains evidence that, viewed in a light favorable to Roth,
potentially excuses or justifies her actions.
Photo exhibits show that Roth’s view of the sidewalk on which Berg was
riding her bicycle was obstructed by a large tree and a sloped yard. Roth testified that she stopped behind the
crosswalk, looked to the right, and saw no oncoming pedestrians or bicyclists. It is possible that Roth did not see Berg
because at the time she looked, Roth’s view was obscured by the large tree or
the sloped yard. Whether the presence of
these obstacles excused Roth from seeing Berg and refraining from entering the
crosswalk until Berg had passed presented an issue on which reasonable minds
could differ. See Lapides v. Wagenhals, 285
testified that she entered the crosswalk while looking to her left because of
the heavy traffic. She also acknowledged
that she might well have seen Berg by looking right if Berg had not been below
her sightline. But Roth believed that
she had already determined that no pedestrian traffic was approaching from her
right. Whether a driver is justified in
temporarily looking away from the road ahead after seeing that it is clear is a
question for the jury.
record similarly demonstrates that the issue of Berg’s negligence was also a
jury question. The district court found
that Berg was not negligent because Roth did not present any evidence of
negligence on Berg’s part. But the
record could support a finding of negligence.
“The law is clear that [pedestrians are] not absolved from the duty of
exercising ordinary care for [their] own safety merely because [they are] on
the crosswalk and [have] the right of way.”
Becklund v. Daniels, 230
The evidence presented at trial included Berg’s admission that she was concerned that Roth did not see her. Thus Berg arguably knew she might have to stop suddenly, despite having the right-of-way. Nonetheless, Berg was unable to stop without falling in front of Roth’s car. A jury could reasonably conclude that under similar circumstances an ordinarily prudent person would be able to stop without toppling over or would elect to strike the car rather than fall into its path. Therefore a jury could find that Berg was contributorily negligent. In light of this evidence, it was error to enter judgment as a matter of law because reasonable minds could determine that Berg was also negligent.
also asserts that the district court improperly excluded evidence. We address this issue to provide guidance on
remand. Evidentiary rulings lie within
the sound discretion of the district court and will not be overturned absent an
abuse of that discretion. State v. Vance, 714 N.W.2d 428, 436 (
Berg may have been riding “against” the direction of the adjacent street
traffic, but she was not obligated to ride in a given direction on the
sidewalk. See Minn. Stat. § 169.222, subd. 4(f) (entitling bicyclists legally
riding on sidewalks to all rights of pedestrians). Second, Berg was not obligated to use an
alternate route, despite the availability.
Berg was entirely within her right to ride “against” traffic on the
route she chose, and those facts neither enhance Berg’s expected duty of care
nor lessen Roth’s expected duty of care.
Third, Roth’s subjective knowledge about the frequency or infrequency of
bicycle traffic at the intersection does not weigh on how an ordinarily prudent
person would have acted under similar circumstances. See
Florenzano v. Olsen, 387 N.W.2d 168, 174 (
Roth’s remaining argument challenges the court’s order for attorneys’ fees and costs for nonpayment of the judgment. Because we conclude that the order granting Berg’s motion for judgment as a matter of law is not sustainable, we similarly reverse the imposition of sanctions. The judgment is reversed and the case is remanded to the district court for retrial.
Reversed and remanded.