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Rose v. City of Tulsa2/18/2005
eseen circumstances or conditions and not by the negligence of either party." Ankey v. Hall, 1988 OK 101, , 764 P.2d 153, 156. The majority is weighing the evidence when it suggests that because there was a rear end collision, the only conclusion, as a matter of law, is negligence. However, this argument was specifically rejected by the Supreme Court in Athey:
The plaintiff argues that the fact that the plaintiff was rear-ended by the defendant raises the presumption that the defendant violated several rule-of-the-road statutes: 47 O.S. 1981 §11-310(a), 47 O.S. 1981 §11-801(a) and (d). (Footnote omitted.) The cases, however, do not support her argument.
The fact that a motor vehicle collision occurred does not necessarily raise the presumption that the defendant was following too close, driving too fast to bring the car to a stop, or driving too fast for highway conditions.
Thus, the mere fact of a collision does not show a violation of the above cited statutes, nor such a showing of negligence that an unavoidable accident instruction would be improper.
823 P.2d at 349.
As the majority says, the general rule is that the "determination of the question of negligence, that is, what is or what is not negligence, in nearly every case is a question for the jury." Opinion, , Gwinn v. Payne, 1970 OK 145, , 477 P.2d 680, 683. The issue of whether an unavoidable accident instruction was warranted in this case was made irrelevant by the trial court's directed verdict on liability. The facts, when viewed in the most favorable light toward the City, were not so conclusive that reasonable persons could not disagree. The majority has determined City's driver was negligent just because he rear-ended plaintiff's car.
The real solution to this issue is what would have happened if the trial court had submitted the case to the jury, instead of finding negligence on its own, and the jury returned a verdict for the defendant. On appeal, would the jury verdict have been reversed? Athey provides the answer. Despite two jury verdicts for the defendant, who was traveling 25 mph while it was sleeting and the road was icy, and rear-ended the plaintiff, and notwithstanding two reversals by the Court of Civil Appeals, the Supreme Court affirmed the jury verdict for defendant.
I respectfully dissent.
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