Negligent Traffic Director

One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.

In September, a man was bicycling when a dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw a driver who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind the driver wanting to turn left and were beginning to pass him on his right.

The dump truck stopped and motioned for the driver to make his turn, which he did, and collided with the bicyclist who had not stopped along with the dump truck. The bicyclist sued both drivers for his injuries.

At the District Court, the Judge ruled that the dump truck driver was “no more responsible for the bicyclist than he was for any of the hundreds of other drivers on the road,” and that there is “no authority for the bicyclist’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” The bicyclist appealed this decision to the Supreme Court.

The Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for the driver turning left to turn.

In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused the bycyclist’s injuries and damages.

Contributory Negligence

Under § 27-1-702, contributory negligence does not bar recovery in an action for negligence resulting in death or injury to person or property if the contributory negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought. This means that a plaintiff could be found partially negligent but he could still recover damages from his suit.

For example, imagine that Fred is bicycling down the road when he is struck by Ben who is driving on the same road. Even if the jury finds that Fred was negligent in his bike riding because he was wearing headphones while riding, he can still recover damages in a suit against Ben so long as the jury finds that Ben’s negligence was greater than Fred’s. To put a number on it, so long as Fred was only 49% negligent, Ben’s negligence is greater than Fred’s and Fred can still prevail.

However, “any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering.” This means that while Fred can recover damages in his suit against Ben, those damages must be reduced by whatever percentage negligent Fred was. So, in the earlier example where Fred was 49% negligent, any damages that were awarded to Fred in his suit would be reduced by 49%. He can still recover 51% of whatever is awarded to him, the percentage that Ben was responsible for.

If the jury finds that Fred’s negligence is equal to or greater than Ben’s negligence, then Fred will be unable to collect any damages under the rule. In a case with multiple defendants, the combined negligence of all the defendants is compared with that of the plaintiff to make the same determination.

How to Attach a Roof

John built an addition to his barn on his property. Two years later, the new roof blew off and cut a power line on the neighbor’ property which sparked a fire consuming outbuildings, fences, corrals, trees, a field, and personal property. The neighbor sued for negligent construction of the roof, alleging that he should have used “storm collars” to secure the roof in high winds.

The case proceeded to trial and each party introduced expert testimony. The neighbor’s expert testified that he always used storm collars in windy areas and believed that the lack of collars was not reasonable and prudent, rendering the roof insufficient. On John’s behalf, a wood science expert testified that while storm collars are commonly used in windy areas, the fact that John had used 550 nails to secure the roof was significant. He believed it would have required winds of 100-105 mph to lift the roof, compared to 90 mph which was the standard.

The trial judge, gave the following instruction to the jury:

Negligence is not proven merely because someone later demonstrates that there would have been a better way. Reasonable care does not require prescience nor is it measured with the benefit of hindsight.

The neighbor objected to the instruction, claiming that it was cumulative, unnecessary, and a comment on the evidence. The Judge over ruled the objection and the jury returned a verdict in John’s favor.

The Supreme Court disagreed, holding that jurors could have reasonably inferred from the instruction that the testimony of both experts as to the effect that storm collars make better roofs should be disregarded. The majority held that jurors following this instructions could ahve concluded that they were obligated to disregard much of the evidence, instead of using their own sense of which evidence to accept and which to reject.

Justices dissented on the grounds that the instruction was not an incorrect statement of negligence law and had previously been held proper in a  negligence case.