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Tidd v. Kroshus

Supreme Court of North Dakota

October 13, 2015

Michelle Tidd, Plaintiff and Appellant
v.
Scott Kroshus, Defendant and Appellee

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

Timothy M. O'Keeffe (argued) and Tatum O. Lindbo (appeared), Fargo, N.D., for plaintiff and appellant.

William P. Harrie (argued) and Sharon T. Lo (appeared), Fargo, N.D., for defendant and appellee.

Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. McEvers, Justice, dissenting.

OPINION

Page 182

Daniel J. Crothers, Justice.

[¶1] Michelle Tidd appeals from a judgment entered on a jury verdict dismissing her negligence action against Scott Kroshus arising out of a collision between Tidd's bike and Kroshus' car. Tidd also appeals from the district court's order denying her motion for a new trial, arguing the district court erred in instructing the jury on the sudden emergency doctrine. We reverse and remand, concluding under the facts presented, it was error to instruct the jury on the sudden emergency doctrine.

I

[¶2] On the evening of August 18, 2010, Tidd was riding her bike on a sidewalk in Fargo when she collided with Kroshus' car. Kroshus was entering the street from the alley when he collided with Tidd. Tidd sued Kroshus alleging Kroshus'

Page 183

negligence caused the collision and Tidd's bodily injuries.

[¶3] The parties' trial testimony differed on the details of the collision. Tidd testified the area was well-lit, she had lights on her bike, she was wearing a bright blue jacket with reflectors on it and Kroshus' car struck her bike. She testified she does not typically ride her bike at night because it is not safe to ride after dark. She testified she did not see Kroshus' car before the impact, and did not hear the car coming because she was wearing headphones while listening to her iPod.

[¶4] According to Kroshus, he was driving with his headlights on because the area was dark. He stopped his car in the alley as he was approaching the sidewalk. He stated the buildings on each side of the alley made it impossible to see anyone on the sidewalk. The collision occurred when he began looking to his left as he was " creeping forward to get a better look [at] the sidewalk." He did not see Tidd on her bike before the collision, and the bike had no lights. He immediately stopped his car after the collision. He testified he traveled the alley where the collision occurred a few times every week and he normally took precautions when emerging from the alley because he knew bike riders or pedestrians could be on the sidewalk. He does not usually see bike riders at night.

[¶5] Over Tidd's objection, the district court instructed the jury on sudden emergency. The " sudden emergency" instruction stated:

" If suddenly faced with a dangerous situation the person did not create, the person is not held to the same accuracy of judgment as one would be if there were time for deliberation. The person is not at fault if the person acted as an ordinary prudent person would act in a similar emergency."

In addition to the sudden emergency instruction, the jury was instructed on negligence, state law regarding the operation of a vehicle emerging from an alley, Fargo ordinances regarding the operation of bicycles on a sidewalk, operation of bicycles at night, evidence of compliance or non-compliance with statutes or municipal ordinances, the general care required in the operation of a motor vehicle, the duty of a person with the right-of-way, comparative fault and weight and credibility of evidence.

[¶6] Tidd argued the sudden emergency instruction was unnecessary because there was no evidence of a sudden emergency. The jury returned a verdict finding Kroshus was not at fault, and a judgment was entered dismissing Tidd's complaint. Tidd moved for a new trial, arguing the district court erred in instructing the jury on sudden emergency. Tidd's motion was denied.

II

[¶7] Tidd argues the district court committed reversible error by instructing the jury on the sudden emergency doctrine. This Court has summarized its standard ...


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