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Lake v. D & L Langley Trucking

June 9, 2010

DALLAS D. LAKE, APPELLANT (PLAINTIFF),
v.
D & L LANGLEY TRUCKING, INC., A NEBRASKA CORPORATION, AND ORVAL WHITED, AN INDIVIDUAL, APPELLEES (DEFENDANTS)



Appeal from the District Court of Laramie County. The Honorable Michael K. Davis, Judge.

The opinion of the court was delivered by: Golden, Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

[¶1] This is an appeal from a personal injury negligence case. Dallas Lake was involved in an automobile accident with Orval Whited. Lake alleges Whited, while in the course and scope of employment for D & L Trucking, negligently attempted to pass him as he was making a left hand turn, thereby causing the inevitable collision. The case was tried to a jury. The jury returned a verdict finding Lake eighty-six percent at fault for the accident. Under Wyoming's comparative negligence law, Lake was entitled to no damages.*fn1 Lake filed a motion for a new trial, which the trial judge denied. Lake appeals, alleging a new trial should be granted because the verdict is unsupported by the evidence. Lake also argues a new trial should be granted because of error in the closing argument of the defense and also because the jury verdict was an impermissible quotient verdict. We affirm.

ISSUES

[¶2] Lake presents two issues for our review:

1. Should a new trial be ordered where there is insufficient evidence that the defendant was only 14% at fault where the defendant['s] semi illegally passed the plaintiff's pickup in the intersection, and the defendant made a surprise argument to the jury which mislead them concerning the law of "no-passing" zones?

2. Should a new trial be ordered when there is convincing evidence that the verdict was a "quotient verdict?"

FACTS

[¶3] On the day of the accident, Lake was driving north on Wyoming Highway 214 in a pickup. Whited, who was driving a tractor-trailer combination truck, was also driving north on Highway 214, some distance behind Lake. Highway 214 is a two-lane highway. Lake intended to turn left off Highway 214 at County Road 207.

[¶4] Whited was driving a relatively new Peterbuilt tractor, towing a fifty-foot trailer. Whited had an exemplary driving record and was in the process of returning home from a simple day trip. As he was driving, Whited saw Lake's pickup when he was about three or four miles behind Lake. Whited noticed that, although he was driving sixty-five miles per hour, the speed limit, he was gaining on the pickup. As he approached the pickup, he slowed his speed to about fifty-five miles per hour. There was no solid yellow line on the highway indicating a no-passing zone. There were no signs on the highway indicating an upcoming intersection. He saw no brake lights or turn signal coming from the pickup. Whited determined to pass the pickup. Whited did not notice the intersection with the county road. He turned on his left turn signal and when he was about three car-lengths behind the pickup he pulled over into the left lane and began his pass.

[¶5] Lake had seen the tractor-trailer truck when it was about a half mile behind him, but he had driven the road so many times he wasn't paying much attention to the road or the tractor-trailer truck. Lake, without checking his rearview mirror or side-view mirror, began his left hand turn. He had no idea the tractor-trailer truck was in the process of passing him. Lake impacted the tractor-trailer truck approximately fifteen feet behind the tractor's front wheel.

[¶6] Lake sued Whited and Whited's employer, D & L Trucking, alleging Whited negligently passed him, causing the accident and resulting personal injuries.*fn2 During closing arguments, both sides argued the language of Wyo. Stat. Ann. § 31-5-205(a)(ii) (LexisNexis 2009), which states in essence no passing is allowed [w]hen approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing unless otherwise indicated by official traffic-control devices[.]

Lake's counsel argued the statute provided for "no exceptions." His counsel stated the law is "do not pass in an intersection under any circumstances." Defense counsel responded in his closing argument by emphasizing the statute actually does provide for an exception depending on the presence of a traffic-control device. Defense counsel went on to argue the law was that "unless it is otherwise indicated you can pass." Defense counsel concluded that, since there was no solid yellow line leading up to the intersection, in attempting to pass Lake, Whited "was not violating any statute." Lake's counsel did not object to this argument, but rather took the issue up in his rebuttal closing, arguing the yellow lines on highways are not "official traffic-control devices" as contemplated by the statute and therefore the absence of a solid yellow line at the intersection did not make Whited's pass legal.

[¶7] The case was handed to the jury. One of the jury instructions set forth the exact language of § 31-5-205(a)(ii). The same instruction also contained the following language of Wyo. Stat. Ann. § 31-5-217 (LexisNexis 2009):

No person shall turn a vehicle or move right or left upon a roadway unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided by this section.

A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal required by this act to the driver of any vehicle immediately to the ...


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