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Smith v. Barker

Court of Appeals of Oklahoma, Division IV

August 7, 2017

MINDY MICHELLE SMITH, an individual, Plaintiff/Appellant,
v.
TIFFANY ANGEL BARKER, an individual, Defendant/Appellee.

          Mandate Issued: 12/19/2017

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY FITZGERALD, TRIAL JUDGE

          Robert L. Rode, David C. Bean, THE RODE LAW FIRM, P.L.L.C., Tulsa, Oklahoma, for Plaintiff/Appellant

          Aaron J. Goodman, LAWSON & SHELTON, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee

          P. THOMAS THORNBRUGH, VICE-CHIEF JUDGE

         ¶1 Plaintiff, Mindy Michelle Smith, appeals from an adverse verdict in a personal injury action resulting from an automobile-bicycle collision at the intersection of South 109th East Avenue and East 71st Street in Tulsa. The jury found that Plaintiff was 80% at fault for her own injury and that Defendant, Tiffany Angel Barker, the driver of the pick-up truck that hit Plaintiff, was 20% at fault.

         ¶2 In this appeal, Plaintiff criticizes the court's failure to give the negligence per se instructions she submitted. Plaintiff claims that as a result the jury was, at best, uninformed, or at worst, misled, as to the law governing the duty of a motor vehicle to yield to a pedestrian/bicyclist [1] who was lawfully in a marked crosswalk protected by a control signal.

         ¶3 Plaintiff contends the questions of (1) which party had the right-of-way, [2] and (2) who had the duty to yield to the other in the case of a collision between a pedestrian/bicyclist and the operator of a vehicle in a traffic light-controlled crosswalk, were the main issues to be decided by the jury. She also argues that the failure of the court to provide appropriate instructions of law concerning the relative rights and responsibilities of the parties constituted reversible error.

         ¶4 Under the facts and circumstances of this case, for the reasons discussed at length below, we decline to hold that the trial court specifically erred by rejecting Plaintiff's proposed negligence per se instructions as submitted. We find the existence of fundamental error, however, and return this case to the trial court for a new trial because there was a failure to instruct correctly on the law regulating the legal duties and rights of a "pedestrian/bicyclist" at a controlled crosswalk, as specifically dictated by 47 O.S.2011 § 11-203. If the trial judge does not accurately state the law, "'fundamental error' occurs." Sellars v. McCullough, 1989 OK 155, ¶ 9, 784 P.2d 1060.

         BACKGROUND FACTS

         ¶5 In her petition, Plaintiff asserted a cause of action for negligence. She alleged that Defendant, who was driving a Ford Ranger pick-up truck, executed a right turn on red and collided with Plaintiff while Plaintiff was in a marked crosswalk. Plaintiff claimed she sustained a fractured ankle along with other injuries as a result.

         ¶6 Plaintiff specifically alleged that Defendant was negligent per se because she was in violation of 47 O.S.2011 § 11-202 (3)(b), which requires that a driver of a vehicle that is turning right on a steady red light indication " shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk...." (emphasis added). Plaintiff's claim of negligence per se and the theory of her case never changed as the case progressed to trial. The agreed pre-trial conference order entered by the court contains the clear claim that Plaintiff had proceeded into the crosswalk with a "walk" signal when Defendant, who was executing a right turn on red from South 109th East Avenue to 71st Street, collided with Plaintiff in the crosswalk. Plaintiff's listed theory of recovery included negligence per se pursuant to 47 O.S. § 11-202 (3)(b). [3]

         ¶7 Defendant's affirmative defense of contributory negligence at trial was based on Plaintiff's alleged violation of 47 O.S.2011 § 11-203, which provides that pedestrians proceeding across a road at the direction of a signal indicating "walk" have the right-of-way in the direction of the signal, but may not proceed to cross the road if the light displays "wait" or "don't walk." [4] Defendant claimed that Plaintiff carelessly operated her bicycle in front of Defendant's vehicle before Plaintiff had an illuminated "walk" signal allowing her to safely cross South 71st Street.

         ¶8 The parties' respective theories of the case remained the same at trial. While the evidence was undisputed that Plaintiff was in the crosswalk when she was hit, [5] Defendant disputed whether Plaintiff had properly entered the crosswalk at the direction of the control light, thus contributing to her own injury. On July 26, 2017, this Court held oral argument on this case, which assisted in clarifying the issues for appeal. [6]

         I. THE EVIDENCE AT TRIAL

         ¶9 In order to assess the adequacy of the jury instructions, we must examine the evidence adduced at trial in some detail. Three witnesses gave fact testimony at trial concerning the circumstances of the accident itself: Plaintiff, Defendant, and a non-party, Tyran Parrish, who was identified as the driver of a vehicle waiting for the light to change just east of the subject intersection. Their testimony, set forth in the trial transcript, is summarized here: [7]

         A. Testimony of Plaintiff

         ¶10 Plaintiff testified that on the morning of October 4, 2012, she had ridden her bicycle on the sidewalk along the north side of East 71st Street to an off-ramp at Highway 169, where she dismounted. Plaintiff then walked her bicycle on the sidewalk to the corner of 71st Street and South 109th East Avenue.

         ¶11 According to Plaintiff, when she arrived at the corner, a "do not walk" signal was illuminated, so she pushed the button for a "walk" signal located in a yellow box mounted on a light pole. While she was waiting for the crosswalk signal with her bicycle, Plaintiff testified that she observed Defendant, who was driving a white Ford Ranger pick-up truck, stopped at a red light waiting to make a right turn from the lane located in front of Plaintiff. Plaintiff said she and Defendant made eye contact with each other. Plaintiff testified she waited for the crosswalk light for between 30 to 60 seconds.

         ¶12 Plaintiff testified that, after the crosswalk light displayed a "little man walking" signal, she proceeded to get on her bicycle and was in the process of riding across 71st Street, in the crosswalk, when she was struck by Defendant, who was going very slowly, as though she had just started up.

         B. Testimony of Defendant

         ¶13 Defendant did not dispute Plaintiff's description of where the accident occurred. Defendant admitted that she was proceeding south on 109th East Avenue when she stopped for a red light and then waited for up to a minute looking left waiting for traffic to clear so that she could make a right turn onto 71st Street. Defendant testified that when she first approached the intersection she looked right, didn't see anyone, and then looked left waiting for the traffic to clear. According to Defendant, when she got an opening in traffic she "let off my brake to merge into traffic, and then that's when Ms. Smith appeared right in front of me " (emphasis added).

         ¶14 Defendant admitted that the light facing her was showing steady red at the time she made her right turn, and that she indeed struck Plaintiff with her vehicle while Plaintiff was in the crosswalk with her bicycle. While admitting it was "not OK to hit somebody in a crosswalk, " she testified she had no fault whatsoever for the occurrence because she never saw Plaintiff the one time she looked. Defendant testified, " If I were to have looked to the right and saw Ms. Smith there I would have stopped " (emphasis added).

         C. Testimony of Tyran Parrish

         ¶15 Tyran Parrish, who was sponsored as a witness to the collision, was driving west on 71st Street when she stopped at the intersection, waiting for the red light to change. She testified that she thought she had been there about for about a minute before the accident occurred.

         ¶16 Parrish testified she had seen Plaintiff riding her bicycle on the sidewalk but not the roadway. Parrish testified she saw the bicycle stop within a foot or two of where Plaintiff entered the street, but was unable to testify that she saw the bicycle come off the curb into the crosswalk because Defendant's vehicle blocked Parrish's view.

         ¶17 Parrish testified that she did not know how long Plaintiff had stopped before the accident, because the next time she saw her, Plaintiff was in front of the Defendant's vehicle. While Parrish was unable to testify whether Plaintiff was in the crosswalk when she got hit, she did see Plaintiff lying in the street, screaming and grabbing her leg. Parrish did not know if Plaintiff pushed the "walk" signal, and she did not observe whether the "walk" signal was illuminated at the time of the occurrence.

         II. THE ISSUES AT TRIAL

         ¶18 It is the duty of the parties to assure that the instructions given accurately reflect the issues tendered by the evidence adduced at trial. Sellars, 1989 OK 155 at ¶ 9. It is the trial court's duty "to state the law correctly, but not to frame the issues." Id.; see also Mosley v. Truckstops Corp. of America, 1993 OK 79, ¶ 9, 891 P.2d 577.

         ¶19 At the conclusion of Plaintiff's presentation of evidence, Defendant moved for a directed verdict, which the court overruled. [8] The recorded colloquy between counsel in their argument to the court is useful in understanding how the parties framed the issues in relationship to the testimony presented:

MR. GOODMAN [Defendant's counsel]: Your Honor, at this time Plaintiff, having rested, we would enter [sic] a directed verdict based upon the fact that the Plaintiff has failed to prove that my client breached her duty as a driver. Specifically the Plaintiff has failed to adduce evidence that at the time Ms. Smith crossed the crosswalk that my client was in the wrong for having proceeded forward by turning right. And, more specifically, the fact that at the time the Plaintiff was in the crosswalk that she had a walk sign versus my client's legal ability to make a right at the time. So with that, your Honor, we would enter [sic] a directed verdict.
THE COURT: Response, Mr. Rode?
MR. RODE [Plaintiff's counsel]: Your Honor, the testimony has been clear that the Defendant took a right on a red. The testimony has been clear that the Plaintiff was next to the button to push the walk sign and that she sat there for an extended period of time after pushing the walk sign. She got a walk sign and she crossed when she was struck by the Defendant entering the intersection on a red.
THE COURT: I believe there is sufficient evidence to go to the jury that there is a disputed fact and I will overrule the motion for directed verdict.

         ¶20 At the end of the presentation of the evidence, the record suggests that the question of fact (framed by the evidence), which the jury had to answer, was whether Plaintiff had entered the crosswalk before or after the walk signal illuminated. Defendant's other possible theory -- that Plaintiff had ridden directly from the sidewalk into the crosswalk without stopping -- was not supported by testimony. [9] There was simply no objective evidence to support the existence of any other disputed fact, because it was admitted by ...


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