M'Liss Morse, Appellant, v. Kelle Antonellis, et al., Respondents, 112 Wash. App. 941

Kurtz, J. M’liss Morse and Kelle Antonellis were involved in an automobile collision. Ms. Morse sued Ms. Antonellis, alleging damages caused by Ms. Antonellis’s negligence. A jury found Ms. Antonellis was not negligent. Ms. Morse appeals contending that the jury verdict was not supported by substantial evidence. We reverse and remand for a trial on damages. FACTS On July 12, 1996, at 1:00 p.m., M’Liss Morse was driving westbound on Francis Avenue approaching an intersection with Perry Street. The day was clear and dry, and the roadway was straight and level.

Francis Avenue is a four-lane roadway with two lanes of travel in each direction. The posted speed limit is 35 miles per hour. Ms. Morse was traveling 32 miles per hour in the westbound curb lane. The intersection with Perry Street is controlled by stop signs on Perry. A pickup truck was stopped in the westbound center lane of Francis at the intersection with Perry. The pickup was signaling a left turn onto Perry southbound, waiting for oncoming traffic on Francis to clear. There is no evidence of the size of the pickup, whether it was a small import or a large, four-wheel drive.

Kelle Antonellis approached the same intersection from the opposite direction in the eastbound center lane of Francis. Ms. Antonellis stopped at the intersection, waiting to turn left northbound on Perry. Ms. Antonellis looked in the outside lane of westbound Francis and did not see any vehicles. Ms. Antonellis turned left as Ms. Morse entered the intersection. The vehicles collided in the westbound curb lane. Ms. Antonellis did not see Ms. Morse before the impact. Ms. Morse sued Ms. Antonellis for damages for the injuries she received in the accident.

The case was tried to a jury, which returned a defence verdict, finding that Ms. Antonellis was not negligent. Ms. Morse’s motion for judgment notwithstanding the verdict was denied and she appeals. ANALYSIS Ms. Morse contends the court, erred by failing to grant a judgment notwithstanding the Verdict because there is no substantial evidence to support the jury verdict of no negligence. She argues that Ms. Antonellis was negligent by failing to yield to oncoming traffic and failing to see what was there to be seen.

CR 50(a)(1) provides as follows regarding motions for judgment as a matter of law: If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the tourt may grant a motion for judgment as a matter of law against the party on any claim . . . that cannot under the controlling law be maintained without a favorable finding on that issue. “Motions for a directed verdict and motions for judgments notwithstanding the verdict were renamed ‘motions for judgment as a matter of law’ effective September 17, 1993.” Litho Color, Inc. v.

Pac. Employers Ins. Co., 98 Wn. App. 286, 298 n.1, 991 P.2d 638 (1909). “ ‘Granting a motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.’ ” Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Sing v. John L.

Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997)). “Substantial evidence is said to exist if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise.” Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d 887 (1980). When reviewing a motion for judgment notwithstanding the verdict (judgment as a matter of law), this court applies the same standard as the trial court. Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995). Ms. Antonellis had a duty to yield to oncoming traffic.

City of Spokane Municipal Code 16.61.185. “The primary duty of avoiding an accident rests upon the driver who proposes to make a left turn at an intersection in the face of oncoming traffic.” Harris v. Burnett, 12 Wn. App. 833, 842, 532 P.2d 1165 (1975).

RCW 5.40.050 provides that “[a] breach of a duty imposed by statute [or] ordinance . . . shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence.” “Although violation of a statute/duty is no longer negligence per se . . ., this does not mean RCW 5.40.050 necessarily bars a trial court from finding negligence as a matter of law.” Pudmaroff v. Allen, 138 Wn.2d 55, 68, 977 P.2d 574 (1999). In addition, Ms. Antonellis had a duty to see what a person exercising ordinary care would have seen. Davis v. Bader, 57 Wn.2d 871, 874, 360 P.2d 352 (1961). Ms.

Morse testified that she saw Ms. Antonellis’s car a block before she reached the intersection. Yet, Ms. Antonellis testified she looked and did not see Ms. Morse’s car until she hit it. Ms. Morse’s car was there to be seen, and Ms. Antonellis failed to see it. Ms. Antonellis argues that there was evidence that Ms. Morse was in the center lane and switched lanes shortly before the intersection. The basis of this argument is Ms. Morse’s following testimony: I was westbound on Francis going towards the intersection of Perry. I was in the curb lane.

I just approached the curb lane about the speed I had about 32 and stopped, was stopped by the impact just into the intersection itself. Report of Proceedings at 14 (emphasis added). To find that Ms. Morse switched to the curb lane shortly before the intersection on this scant amount of evidence would be mere speculation or conjecture on the part of the jury. There must be substantial evidence, as opposed to a mere scintilla, to support the verdict because the verdict cannot be founded on mere theory or speculation. Belli v. Shaw, 98 Wn.2d 569, 574, 657 P.2d 315 (1983).

If the evidence is conjectural and the jury rendered its verdict on the basis of such speculation, the judgment on the verdict must fall. Tokarz v. Ford Motor Co., 8 Wn. App. 645, 654, 508 P.2d 1370 (1973). In addition, even if Ms. Morse switched lanes shortly before the intersection, Ms. Antonellis should have waited until she had a clear view.

If the obstruction that blocks the view of the disfavored driver (the driver who does not have the right-of-way) is one that reasonably can be expected to move, like another car, then the disfavored driver must permit the impairment to his view to move on so he can see the stretch of the road from which a favored driver might be approaching. Harris, 12 Wn. App. at 842. The record here is inadequate to support the jury’s verdict. Ms. Antonellis was negligent as a matter of law. Any theory that Ms. Morse may have caused the accident by switching lanes shortly before the intersection is entirely speculative.

Accordingly, the court erred by denying Ms. Morse’s motion for a judgment as a matter of law. We reverse and remand for a trial on damages. Schultheis, J., concurs.