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England v. Costa11/10/2005
l have drawn the reasonable inference that plaintiff would have been able to avoid striking it. . . . While there is authority to the contrary, we believe the better reasoned cases support the holding that whether plaintiff failed to exercise due care to avoid the collision was a question of fact for the jury.
Shipp, 174 Ark. at 138 (emphasis added). Clearly, Shipp, Kirby, and Rexer all involved situations in which there was a question as to whether the plaintiff had been contributorily negligent.
Further analysis of cases from other states with a similar jury instruction makes it plain that the instruction should only be given when contributory negligence is an issue. Particularly instructive are cases from California involving that state's instruction, California Civil Jury Instruction (BAJI) 3.13, which is essentially similar to our AMI 602. The California instruction provides as follows:
Every person who is exercising ordinary care, has a right to assume that every other person will perform duty [and obey the law]. In the absence of reasonable cause for thinking otherwise, it is not negligence for a person to fail to anticipate an accident which can occur only as a result of a violation of [duty] by another person.
California cases citing this instruction are unequivocal in holding that the instruction should not be used when there is no evidence of violation of the law or a duty by the plaintiff. See Springer v. Reimers, 4 Cal. App. 3d 325, 84 Cal. Rptr. 486 (1970) (instruction was not proper where the plaintiff was not contributorily negligent); Eramdjian v. Interstate Bakery Corp., 153 Cal. App. 2d 590, 315 Pl2d 19 (1957) (no error in refusing to give the instruction when there was no evidence that the plaintiff had violated the law or a duty; giving the instructions under these facts would only have confused the jury).
Other jurisdictions have similarly only applied the rule in contributory negligence cases. See Vaughn v. Porter, 140 Idaho 470, 95 P.23d 88 (2004) (assumption that all other drivers on the road are exercising ordinary care does not apply when the driver/plaintiff herself is not exercising ordinary care); Flowers v. South Carolina State Highway Dep't, 206 S.C. 454, 34 S.E.2d 769 (1945) (a traveler on the highway, exercising due care himself, in the absence of any circumstances which reasonably should put him on notice to the contrary, is entitled to assume, and to act upon the assumption, that others using the highway in common with him will exercise reasonable care).
In sum, where there is no evidence of contributory negligence, AMI 602 should not be given. Generally speaking, when the instruction is utilized in a contributory negligence case, the phrase "every person" in the instruction is intended to refer to the plaintiff. Here, however, the jury was instructed that "every physician" is entitled to the assumption that other medical-care providers are not being negligent. In other words, the instruction informed the jury that a defendant is entitled to the presumption. This utilization of the instruction in this context was entirely improper, and is not to be countenanced. Obviously, there was neither evidence nor intimation that Daphne England was negligent in any manner. The trial court was clearly wrong in giving AMI 602 in any form.
This court has held that when a trial court gives an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, we will not require the appellant to demonstrate prejudice. See Skinner v. R.J. Griffin & Co., 313 Ark. 430 , 855 S.W.2d 913 (1993). Such a requirement is often an impossible burden, and the requireme
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