This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-240

 

Andrew Barnes,
Appellant,

vs.

Derek Dees,
Respondent.

 

Filed January 2, 2007

Reversed and remanded

Stoneburner, Judge

 

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.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, 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.

FACTS

 

            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.  Barnes sued Dees for the resulting damages.  At trial, after Barnes rested his case, Dees testified, essentially consistent with his prior deposition testimony: (1) that he was familiar with the route he was traveling, which has an S-curve followed by a straight-of-way “a few hundred feet” before the intersection; (2) that as he was coming out of the S-curve, he started sneezing and continued to sneeze several times as he maintained his speed of 30 miles per hour; and (3) that when he stopped sneezing, he was blinded by the sun and then noticed the red light, applied his brakes, and slid into the intersection where he eventually collided with Barnes’s vehicle.

            After Dees testified, he requested that the jury be instructed on the emergency rule.  Dees had not previously indicated that he was going to request an instruction on the emergency rule.  Barnes objected, arguing that sneezing did not constitute an emergency in this case and that any emergency was caused by Dees’s conduct after he started sneezing.

            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.

 

The jury found that Dees was not negligent and determined Barnes’s damages.

            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 sneezing, [Dees] did not act unreasonably.”  This appeal followed.

D E C I S I O N

 

            “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 (Minn. App. 1987).  “The standard for determining the propriety of an order denying [JNOV] is whether there is any competent evidence reasonably tending to sustain the verdict.”  Parkside Mobile Estates v. Lee, 270 N.W.2d 758, 761 (Minn. 1978).  On review of a district court’s refusal to enter JNOV or grant a new trial on the question of liability, we review the entire evidence before the factfinder, and the verdict must be sustained if it is possible to do so on any reasonable theory of the evidence.  Tuckner, 407 N.W.2d at 725.  This court views the evidence in the light most favorable to the verdict and does not weigh the evidence or judge credibility.  Id.

            “The 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 (Minn. 2002). 

            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 Minnesota Practice CIVJIG 25.16 (2006).[1]  The instruction is based on the supreme court’s discussion of the emergency doctrine in Johnson v. Townsend, 195 Minn. 107, 110, 261 N.W. 859, 861 (1935).  See CIVJIG 25.16 authorities.  In Johnson, the supreme court stated:

[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.

 

195 Minn. at 110, 261 N.W. at 861.  “An instruction on this theory should be given upon request by a party where the evidence would sustain a finding that one of the persons whose negligence will be submitted to the jury had been confronted with a sudden peril or emergency and acted under its stress.”  Byrns v. St. Louis County, 295 N.W.2d 517, 519 (Minn. 1980).  As early as 1955, the supreme court stated that the emergency rule “is merely a particular application of the reasonable care test and operates only to relieve a driver from liability for errors in judgment which the ordinarily prudent [person] might make under similar circumstances.”  Brady v. Kroll, 244 Minn. 525, 530, 70 N.W.2d 354, 358 (1955).

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.

 

Id.  We note that the history of the emergency rule does not support the district court’s determination in this case that the current wording of CIVJIG 25.16 is such a departure from previous wording or treatment of the emergency rule so as to make cases cited by Barnes “largely inapposite,” and the rule “so bland” that its application is of little concern.

            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 Minn. 82, 89, 93 N.W.2d 699, 705 (1958) (quotation omitted).  A party seeking to invoke the emergency rule must not create or contribute to the emergency situation.  Siegler v. Conner, 396 N.W.2d 612, 615 (Minn. App. 1986).

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.

 

Minder, 254 Minn. at 88, 93 N.W.2d at 705 (cited with approval in W.G.O. v. Crandall, 640 N.W.2d 344, 349 n.7 (Minn. 2002)).

            In this case, the district court defined the emergency as the sneezing described by Dees.  Barnes correctly notes that none of the Minnesota cases dealing with the emergency rule have involved sneezing or a comparable physical problem.  Furthermore, the evidence in this case does not support a conclusion that sneezing deprived Dees of time for thought or the opportunity to weigh alternative courses of action or required him to act speedily by impulse or instinct.  To the contrary, Dees testified about his thought process during the sneezing episode, including his continuing awareness of the upcoming intersection, his need to control his vehicle, and his decision not to brake or take his foot off of the accelerator.  And Dees testified that after he stopped sneezing, he was blinded by the sun and then he first noticed the red light and first applied his brakes.  Dees testified:

[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 deprived Dees of the opportunity to decelerate or brake, and that his failure to do so, as a matter of law, contributed to any “emergency” that existed once he arrived at the intersection.  Under the facts of this case, it was an abuse of discretion for the district court to instruct the jury on the emergency rule.

            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.  And because Dees is entitled to have a jury weigh the reasonableness of his conduct, absent the emergency-rule instruction, we conclude that Barnes is not entitled to JNOV, but is entitled to a new trial on the issue of liability.

            Reversed and remanded.