A Civil Action Between North and South

The Claims

A tragic collision on old Highway 13 triggered the legal equivalent of war between North and South. A wrongful death claim was brought for the death of Dr. Noah North against Mrs. Sue South. Claims alleging negligence by Dr. North were brought by Pik South and Mrs. Sue South against North's estate (hereinafter North) seeking damages for their personal injuries and for the destruction of her car. Claims against Max Mover were settled out of court when Mover's insurance company paid $1,000,000 into a fund for Pik. No other claims were made.

The Trial

The remaining claims were consolidated for trial before a single jury. A fair summary of the trial transcript reveals the following story. On the dry, sunny afternoon of the accident, Mrs. Sue South picked up her infant son, Pik, who had been staying with her mother-in-law in City. With her healthy infant strapped properly into his new infant car seat secured in the back seat of her new Lincoln Continental, she drove south on Highway 13. Highway 13 came to be called "Death Alley" in City newspaper stories calling on the State Department of Highways to add various safety features to the old two-lane highway.

Mrs. South was heading for her home in Suburb where her husband, Hugh, was working on their joint income tax return. The Lincoln was followed by a huge truck owned and operated by Max Mover. A car driven by Carol Commuter followed the huge truck.

Suddenly and without warning, a bright red VW Bug which had been travelling north veered into the southbound lane. Mrs. South testified that the moment she saw the VW coming into her lane, she slammed on her brakes, but she remembers nothing thereafter. Max Mover testified that he slammed on his brakes the same moment as the Lincoln did.

The front of the big Lincoln crashed into the side of the small VW. A very short time thereafter, Max Mover's huge truck slammed into the rear of the Lincoln. Carol Commuter was able to brake to a stop without touching the truck ahead of her.

The driver of the VW, Dr. Noah North, was found dead. Mrs. Sue South was found injured and unconscious and was taken to the hospital. Pik was critically injured and was taken to the same hospital where his life was saved. The VW and Lincoln, each less than a year old, were damaged so extensively that neither is worth repairing.

The afternoon commute had been well underway. Thousands of vehicles were moving south, single file. Most of them most of the time were going over the posted 50 mile-per-hour speed limit. A valid statute made exceeding the posted speed limit a "traffic infraction" subject to a fine not to exceed $350 payable to a government office of the county where the crime occurred. Carol Commuter testified that Max Mover was driving about 55 miles per hour just before he put on his brakes.

Many people who commute to and from City on Highway 13 on a daily basis testified at the trial. These drivers, including Carol Commuter, Max Mover and Sue South, testified with surprising uniformity that they had learned from experience to drive at the speed of the vehicle ahead and to keep the gap ahead of them somewhat shorter than during non-commuting hours. They testified that when a substantial gap between any two vehicles opened up, sooner or later some impatient driver, willing to risk pulling out into the northbound lane, would pass one or more vehicles. Sometimes they would keep passing until an oncoming vehicle would force southbound drivers to create a gap for them.

Max Mover testified that this practice of passing someone who was going the same speed as the vehicle ahead was unsafe and made him angry. He was quick to explain, however, that no such risky passing had occurred on the afternoon in question even though he left considerably more space between his truck and the Lincoln ahead of him than would a typical commuter by car.

It is unknown why the VW suddenly veered across the center line and directly in the path of the oncoming Lincoln. The accident destroyed any evidence that the VW might have been defective. No alcohol or other substances that might have impaired his driving ability was found in Dr. North's dead body. No specific evidence was introduced that he had fallen asleep at the wheel and there is little reason to suspect it.
The highway was cut into a hill for a considerable stretch both north and south of the point of the accident. Retaining walls prevented rocks from falling onto the pavement. No one introduced any evidence of any rock or other object in the northbound lane. There was no place one would want to steer for in the direction that the VW suddenly took. Evidence was introduced that Dr. North lived alone and was eccentric, but there was no evidence introduced at trial that he was depressed. There is little reason to suspect that he was suicidal.

As frequently happens, traffic heading north was much lighter than the traffic heading south that afternoon. There was no car ahead of the VW to pass. However, there was one car following it, driven by Frank Follower, who testified that he had been following the red VW Bug for several miles. As far as he could tell, Dr. North was driving at a reasonable speed and in a reasonable manner.

Frank Follower testified that he saw the VW suddenly swerve in front of the Lincoln. He expressed his gratitude that Sue South and Max Mover did not swerve into the northbound lane because then he "would have been the dead one." Sue South had testified earlier that there was not enough time or space to consider swerving into the northbound lane.

Frank Follower testified that he did notice that Dr. North used his cell phone once for a brief period at least ten minutes before the accident. Frank Follower conceded that it was possible that the cell phone had been used at other times, but he refused to say one way or the other because he was not watching the VW very much of the time and did not notice any other such use.

A brief telephone call by Dr. North to Biotex, a firm that Dr. North had founded in City fifteen years ago, was confirmed by a recorded voice mail message which was played to the jury:

"Hi. This is Dr. Noah North. I am driving north by myself for a meeting with my Scientific Advisory Board scheduled to start in 30 minutes. I am running a little late, but my cute red Bug doesn't feel like speeding. Please hold the start of the meeting until I arrive."

South could not find any specific evidence that Dr. North had used his cell phone at any other time on this drive, though it was conceded that he used it frequently while playing golf.

Substantial but conflicting evidence on damages was heard by the jury. To summarize it, the evidence of North's death damages ranged from a high of $20,000,000 to a low of $100,000. Expert opinion of just the socalled "economic damages" for Pik's permanent disabilities ranged from $39,000,000 to $6,000,000. A properly functioning seat belt and air bag limited Mrs. South's "economic damages" for her medical expenses and car replacement to no more than $70,000.

At the close of all the evidence, the experienced trial judge denied Mrs. South's motion for a directed verdict of no liability for North's wrongful death claim. But the trial judge granted anted North's motion for a directed verdict of no liability to any of the Souths on the ground that there was insufficient evidence that Dr. North was negligent.

The wrongful death claim was submitted to the jury for resolution. The trial judge read several standard instructions to the jury on the law of negligence, proximate cause (using the language of "but for" and "fore "foreseeability" at appropriate places), and damages for wrongful death, all without objection.

In due course, the jury returned a general verdict in favor of North for $100,000. Post-trial motions by both sides for a new trial were denied. The trial court rendered judgments for $100,000 in favor of North against Mrs. South, and of no liability of North to any of the Souths.

 

Appeal

Recently, the Supreme Court of Southwest granted the Souths' petitions to review the decisions of the trial court. That is where you come in. You were chosen as a law clerk to Justice Rivera of this Supreme Court. After a long and distinguished career as a lawyer and professor in a completely unrelated field, Justice Rivera desperately needed someone who had recently studied tort law. He candidly explained that he recalls nothing of modern tort law and fervently requests that you answer his questions in very plain language. He recently sent you the following memo:

 

Memo

To: [You]
From: Justice Rivera

Please answer as plainly as possible all three of the questions that I have underlined.
A. North v. Mrs. South

1. The trial judge instructed the jury as follows:

"If Mrs. South exceeded the posted speed limit, then you must find that she was negligent and a proximate cause of Dr. North's death."

Did the trial judge err in reading this instruction to the jury?

B. Pik South v. North

2. There is no statute in Southwest that makes it a traffic infraction or otherwise condemns the crossing of the center line. Accordingly, the trial judge granted North's motion for a directed verdict, explaining that there was insufficient evidence that Dr. North was negligent toward any of the Souths.

Did the trial judge err in granting granting North's motion for a .directed verdict?

Keep in mind a rule of appellate procedure to which the Supreme Court of Southwest adheres: If a ruling of the trial judge is correct, then the ruling should not be disturbed on appeal even if the reason given by the trial judge is incorrect.

3. For purposes of the remaining question, assume that a majority of the Supreme Court of Southwest will hold that the trial judge did err in granting North's motion for a directed verdict. I don't know whether this will happen, and I don't want you to let the possibility that it will happen affect your analysis of questions 1 or 2. But from now on, assume that this Court will order that the claims of Pik and Sue South should have been submitted to the jury. Such a ruling will have important implications for how the resulting new trial to a new jury should be administered.

A majority of this Court is committed to the general principles of comparative negligence. It is impressed by the provisions of the Uniform Comparative Fault Act. However, the last official opinion by this Court on the matter, in Pi v. Delta, written in 1963, adhered to the traditional "all-or-nothing" rule of contributory negligence.

Accordingly, what guidance should this Court give to the trial court on this topic in any new trial of Mrs. South's claim against North, and North v. Mrs. South?

Suppose, for example, that a new jury finds on remand that North's death damages are $1,000,000, Pik South's damages for personal injury are $10,000,000, and Mrs. South's personal and property damages are $100,000. Suppose, furthermore, that the jury thinks that each driver was equally negligent. What judgments should the trial judge render? If you could walk me through that hypothetical, I would be very grateful. If you identify any particular issues on which you have a considered position, I would appreciate having your views. I want to learn from you.

 

 

 

ESSAY ON QUESTION TWO OF JONES' TORTS EXAM 

DECEMBER 1999 

Pik South v. North

Did the trial judge err in granting North's motion for a directed verdict? The trial judge could be correct in his ruling that there was not enough evidence to show negligence. However, there is one doctrine that may allow for a verdict on negligence even without sufficient evidence of the details of Dr. North's conduct. That doctrine is Res Lipsa Loquiter (RIL).

RIL is used when the following elements are met: 1) There is insufficient evidence that the type of accident is usually caused by negligence. 2) The defendant was in exclusive control of the object that caused the accident. (this allows us to rule out intervening actors).

RIL is used to show a breach when one is not evident -- it does not supply an absent duty. However, there is a clear duty on behalf of Mr. North to all others on the roadway to conduct himself in a reasonable manner -- he has a duty of reasonable care. Dr. North does not meet any of the exceptions (his being a professional does not change his duty as a driver). 

Element One of RIL

There is zero evidence as to what happened to Dr. North. No evidence of negligence on his part, emergency, etc. Frank Follower even testified that Dr. North was driving at a reasonable speed and manner. The only evidence of any negligence is that he used his cell phone -- but no evidence that it was used at the time of the accident. The question then is -- was the type of accident the kind that is usually caused by negligence. Well, typically car accidents are caused by two things: 1) a negligent driver; 2) something goes wrong with the car. Here, all evidence as to whether the car malfunctioned is destroyed. So -- it is difficult to say that this type of accident is usually caused by negligence. "Usually" isn't correct and I suppose this question could go to a jury and if they are persuaded at all that the defendant more probably than not had been negligent, then, okay, but really there is insufficient evidence to even say that.

Element Two

This is the only element that can be verified -- Mr. North was the only one driving the car that crossed the centerline -- he had exclusive control over it. But if the car broke then he no longer had control -- this element can't even be verified. 

Conclusion

The trial judge did not err in granting North's motion for a directed verdict. Although, it feasibly may have been able to be up to a jury -- for RIL -- it was the right conclusion.