This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1545

Janice Pouliot, et al.,

Appellants,

vs.

Sharon Marie Fitzsimmons, et al.,

Respondents.

Filed March 18, 1997

Reversed and remanded

Norton, Judge

Dissenting

Kalitowski, Judge

Hennepin County District Court

File No. PI 95-006797

Allan Shapiro, Allan Shapiro & Associates, P.A., 340 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416-1533 (for Appellants)

Terri L. Hommerding, Candlin & Wright, 3800 West 80th Street, Suite #1500, Bloomington, MN 55431-4429 (for Respondents)

Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellants contend the trial court erred in denying judgment notwithstanding the verdict (JNOV) or a new trial after finding that respondents were not negligent in the underlying automobile accident. The jury's verdict is palpably contrary to evidence of respondents' negligent driving. We reverse and remand.

FACTS

The parties were involved in a serious car accident on a January afternoon in 1993. Neither party observed visible ice or snow on the highway at the time of the accident. However, appellant Janice Pouliot, who was traveling east, noticed sleet, tested her brakes, and reduced her speed to 40-45 miles per hour. Respondent Sharon Fitzsimmons, who was travelling west with her daughter, Meghan, did not reduce her speed for the weather conditions. Fitzsimmons believed she could safely drive at the posted speed limit, despite the fact that Meghan recently had been driving and had warned her mother of the slippery highway conditions.

Fitzsimmons was accelerating when her vehicle began to fishtail. She futilely attempted to regain control by removing her foot from the accelerator and steering the vehicle. She skidded sideways down the road for approximately one and one-half to two blocks. When Pouliot saw Fitzsimmons begin to fishtail, she applied her brakes, moved to the right shoulder to get out of the way, and came to a complete stop. Fitzsimmons' vehicle crossed into the westbound lane and struck Pouliot's vehicle head on. Pouliot suffered serious leg injuries and multiple bruises as a result of the accident.

Pouliot and her husband brought this negligence action against Fitzsimmons. After a jury trial, Pouliot moved for a directed verdict on the issues of negligence and causation as a matter of law. The trial court took the matter under advisement, but did not issue a ruling.[1] The jury found Pouliot had sustained $256,500 in damages, but found Fitzsimmons not negligent in the accident. The trial court denied Pouliot's motions for JNOV or, in the alternative, a new trial, and ordered that Pouliot take nothing on her complaint.

D E C I S I O N

On review of a denial of JNOV, this court must affirm if any competent evidence reasonably tends to support the verdict. Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). In reviewing the denial of JNOV, the court must view the evidence and draw all inferences in favor of the nonmoving party. Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983). JNOV is warranted when "reasonable minds can reach but one conclusion against the verdict." Id. The trial court's denial of JNOV is a pure question of law. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979).

Pouliot contends that she was entitled to JNOV because the jury verdict was contrary to the overwhelming evidence of negligence. We agree. When determining whether a person is negligent, we must compare the person's conduct to the care that an ordinarily prudent person would exercise under like circumstances. Klingbeil v. Truesdell, 256 Minn. 360, 366, 98 N.W.2d 134, 139 (1959). In cases such as this,

the manner of driving prior to skidding and the control of the car both before and after skidding present a situation where an inference of negligence is permissible.

Svercl v. Jamison, 252 Minn. 8, 9, 88 N.W.2d 839, 841 (1958). The court focuses on a driver's responsiveness to the weather conditions immediately before loss of control of the vehicle. See, e.g., Marshall v. Galvez, 480 N.W.2d 358, 360-61 (Minn. App. 1992) (holding driver not negligent per se when, prior to spin out, he had reduced speed to 40 mph and then to 20 mph due to rain and wet road conditions). A driver's failure to reduce speed prior to an accident may constitute causal negligence that warrants a directed verdict for the injured party. See Nicosia v. Miller, 302 Minn. 533, 534, 224 N.W.2d 147, 148 (1974) (directing verdict for plaintiff where defendant ran motorboat aground at full speed and into motel unit).[2] Moreover, a driver's violation of motor vehicle statutes raises a prima facie case of negligence under Minn. Stat. § 169.96 (1996); see Minn. Stat. §§ 169.14, subds. 1, 3 (1996) (requiring motorist to reduce speed due to weather conditions or in order to avoid collision); and 169.18, subds. 1, 2 (1996) (requiring motorists to stay to right of road, not cross center line, and pass oncoming vehicles on right).

The record shows that Fitzsimmons failed to use appropriate care, despite her knowledge of weather and road conditions. Immediately prior to driving, Fitzsimmons observed it drizzling, noted that her sidewalk was slippery, and received a warning from her daughter that the roads were slippery. Fitzsimmons was driving on highways near her home, where she had just observed these slippery conditions, yet she testified that she had been driving 50 mph and was maintaining her speed at the time she lost control of the vehicle. Fitzsimmons admitted that she had not reduced her speed, because she did not perceive any hazardous weather conditions. Fitzsimmons' failure to use care commensurate with the weather conditions led to her losing control, crossing the centerline, and colliding with Pouliot.

Fitzsimmons contends that the fact she struck ice and lost control of her vehicle does not automatically render her negligent. See Gran v. Dasovic, 275 Minn. 415, 419-20, 147 N.W.2d 576, 579-80 (1966) (driver not necessarily negligent when she or he fails to anticipate local road conditions); Brager v. Coca Cola Bottling Co., 375 N.W.2d 884, 887 (Minn. App. 1985) (loss of control or skidding of vehicle does not, alone, prove negligence); see also Marshall, 480 N.W.2d at 361 (once statutory violations have arisen, evidence tending to show excuse or justification raises negligence question for jury). We disagree.

In Gran, 275 Minn. at 420, 147 N.W.2d at 580, the supreme court held that the evidence supported the jury's finding that the minor driver had not been negligent, because he had done all he possibly could to avoid the accident, but was unable to do so through no fault of his own. Similarly in Brager, 375 N.W.2d at 887, this court held that evidence of negligence was not so overwhelming as to warrant JNOV for plaintiff, where a truck driver had been driving cautiously through winter conditions and had attempted to brake to avoid accident, but was unsuccessful. There, the court determined that a notice issue existed over whether the road had been slippery before the skid so as to alert the driver of icy conditions.

Unlike those cases, in which drivers were cautious prior to the accidents, Fitzsimmons took no precautions despite the fact that she noted slippery surfaces at home, saw the drizzle, and received a warning from her daughter. She maintained her speed until she lost control of the vehicle. Fitzsimmons failed to show any evidence of excuse or justification for her conduct. See Marshall, 480 N.W.2d at 361 (evidence of excuse or justification presents question of negligence for jury).

In denying JNOV, the trial court failed to apply the reasonable person negligence standard to Fitzsimmons' conduct. See Klingbeil, 356 Minn. at 366, 98 N.W.2d at 139 (trier of fact asks whether person used care that ordinarily prudent person would use in same situation). Under the road and weather conditions present in this case, a reasonable driver would have reduced her speed. The evidence of Fitzsimmons' causal negligence in the loss of control of her vehicle is so overwhelming that reasonable minds could not differ. See Blue Water Corp., 336 N.W.2d at 281 (JNOV proper when reasonable minds could reach only one conclusion against verdict).

Pouliot is entitled to JNOV. We reverse and remand for entry of judgment for Pouliot.

Reversed and remanded.

KALITOWSKI, Judge (dissenting).

I respectfully dissent. The jury found, by special verdict, that Fitzsimmons was not negligent.

Where any icy condition of a highway causes a car to skid or slide, while it is incumbent upon the driver to exercise care commensurate with the situation, it remains for the jury to determine whether he has done so.

Gran v. Dasovic, 275 Minn. 415, 419, 147 N.W.2d 576, 579 (1966) (citations omitted).

A court's decision not to overturn a jury's special verdict finding of no negligence will be reversed on appeal only if there is no evidence reasonably tending to sustain the verdict or if it is manifestly and palpably against the weight of the evidence. Stumne v. Village Sports & Gas, 309 Minn. 551, 552, 243 N.W.2d 329, 330 (1976). Here, in denying Pouliot's motion for JNOV, the trial court stated:

Apparently, the jury believed that changing weather conditions caused icy roads which the jury believed to be an excuse or justification for [Fitzsimmons'] driving conduct. Given the evidence presented, a reasonable jury could have believed that Sharon Fitzsimmons acted as a reasonable person would have under the circumstances and that the accident happened without anyone being negligent.

It is not this court's function to reweigh the evidence. Because the trial court did not err in denying Pouliot's motion for JNOV, I would affirm.

[ ]1 We view the trial court's failure to issue a ruling on the motion for a directed verdict as an implicit denial of the motion. We will focus our review on the denial of JNOV.

[ ]2 Although Nicosia involved a directed verdict and the present case involves denial of JNOV, the distinction is immaterial because, when the court considers the sufficiency of the evidence to create a fact question, we impose the same standard of review on a directed verdict as on a JNOV. Mertes v. Estate of King, 501 N.W.2d 660, 665 (Minn. App. 1993).