Blankenship v. Weidner , 120 Idaho 234 ( 1991 )

BAKES, Chief Justice.

Plaintiffs Richard and Deborah Blankenship, residents of the State of Washington, brought a wrongful death action in Idaho against defendant David Weidner, also a Washington resident, claiming he was responsible for the death of their five-year-old son. The jury found Richard Blankenship and the defendant Weidner to be each 50% negligent. The trial court entered judgment for defendant and the plaintiffs appealed. We affirm.

On September 16, 1984, plaintiff Richard Blankenship, his five-year-old son Justin Blankenship, and the defendant David Weidner, all Washington residents, went gathering firewood in Idaho. In the late afternoon the defendant was driving one of the two pickups they were using to gather wood. Richard and Justin were riding on the back when the defendant put the truck in reverse and moved the truck backward, causing Justin to fall from the truck. The rear wheel of the truck ran over Justin’s head and, as a result, Justin died as the parties drove to seek medical help.

Plaintiffs brought a wrongful death action in Idaho as “husband and wife, natural parents of Justin J. Blankenship, deceased.” ¹ The case was tried to a jury. At the close of the evidence, the court held the jury instruction conference outside the presence of the jury. While the attorney for the plaintiffs argued that the negligence of the plaintiff Richard Blankenship should not be imputed to his wife, plaintiff Deborah Blankenship, nevertheless plaintiffs’ attorney submitted a jury instruction on comparative negligence based upon Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978), and Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), which read in relevant part as follows:

PLAINTIFF’S PROPOSED INSTRUCTION NO. 16

If you find that plaintiff Richard Blankenship was negligent and that his own negligence contributed to the cause of the accident in question, then you are advised that the amount of damages that you find the plaintiffs to have sustained will be reduced by the percentage of negligence you have attributed to plaintiff Richard Blankenship, subject, however, to the following:

If the negligence of Richard Blankenship equals or exceeds 50% of the negligence that proximately caused the accident, then the plaintiffs will not recover any damages from the defendant. (Emphasis added.)

The court gave the foregoing portion of Plaintiffs’ Proposed Instruction No. 16 as the court’s Instruction No. 18.² The jury returned a special verdict finding both the defendant and Richard to be 50% negligent. Because Plaintiff’s Instruction 16 advised the jury that if they found Richard to be 50% or more negligent the plaintiffs could not recover any damages from the defendant, the jury did not answer the remainder of the verdict questions regarding damages. After trial, plaintiffs’ counsel asked the court to reconvene the jury to answer Question 5 of the Special Verdict, which asked for the amount of Deborah Blankenship’s damages. The court refused, pointing out that pursuant to Plaintiff’s Requested Instruction No. 16, which the court gave, Richard Blankenship’s negligence was imputed to Deborah and both were denied recovery. Plaintiffs moved for j.n.o.v., or amended judgment or new trial on the issue of damages. The trial court denied the motions.

On appeal, the Blankenships assert that the trial court erred in imputing Richard’s negligence to Deborah. Blankenships rely on Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975), which held that in a tort action by one spouse against another, the non-negligent spouse could recover for her personal injuries sustained in a car wreck caused solely by the negligent conduct of her husband. Blankenships argue that all of the justifications for allowing the plaintiff’s recovery in Rogers exist in this case as well, and therefore Richard’s negligence should not preclude Deborah from being compensated for the damages that are unique to her.

As noted previously, the jury found David Weidner and Richard Blankenship each 50% negligent and, based upon plaintiffs’ own Requested Instruction No. 16 (given Instruction No. 18), the jury did not award any damages to plaintiff Deborah Blankenship because Instruction No. 18 precluded recovery of any damages by either plaintiff if Richard’s negligence “equals or exceeds 50%.” Blankenships argue that their instruction, which they requested, was not a correct statement of the law, in light of our holding in Rogers v. Yellowstone Park, and that the trial court erred in giving their Requested Instruction No. 16. We disagree.

Our law is clear that where the litigants request an instruction and the trial court gives it, they cannot thereafter claim on appeal that the giving of the instruction was error. As we stated in Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976):

The plaintiffs further argue that the court erred in giving the instruction defining the defense of assumption of risk. This instruction was substantially identical to the plaintiffs’ requested instruction, differing from their requested instruction only by substituting the name “Richard Anderson” for the term “decedent” and the term “plaintiff” for the name “Richard Anderson.” By having requested this instruction, the plaintiffs were precluded from assigning it as grounds for reversal upon appeal, regardless of whether it was a correct statement of the law.

97 Idaho at 823, 555 P.2d at 154.

Blankenships attempt to justify having requested the instruction by suggesting during argument on appeal that the trial court “solicited” the Seppi instruction during the course of trial, and that the instruction was submitted in response to that request. We find this argument unpersuasive.

First, there is nothing in the record to support the claim that the trial court “solicited” the particular Instruction No. 16 which the plaintiff requested. The appellants acknowledge that the alleged discussion concerning a Seppi instruction was “off the record.” That is reflected in the colloquy between this Court and appellants’ counsel during the oral argument:

THE COURT (Justice Johnson): Mr. Aherin, plaintiffs’ proposed Instruction No. 16 was the instruction you had faxed and presented to the court as an additional proposed instruction, is that correct? MR. AHERIN: Yes.

THE COURT (Justice Johnson): That was done at the invitation of the court? MR. AHERIN: It was done in discussion with the court, off the record, at the initial jury instruction conference.

THE COURT (Justice Johnson): But there is no question that you did propose the instruction?

MR. AHERIN: There is no question that we submitted it.

The foregoing colloquy makes clear that Instruction No. 18 given by the court was from Plaintiffs’ Proposed Instruction No. 16. Plaintiffs do not contest that fact on appeal. We conclude, as we did in Anderson v. Gailey, that plaintiffs are precluded from claiming on appeal that the court erred in giving the instruction which they had proposed. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Affirmed. Costs to respondent. No attorney fees on appeal.

JOHNSON, BOYLE and McDEVITT, JJ„ concur.

1 . In December of 1988, nearly 2'A years after the filing of the complaint, plaintiffs sought leave to amend their complaint to add a new party, Richard A. Blankenship as personal representative of the estate of Justin Blankenship, and to allege an heirship claim under I.C. § 5-311. The trial court denied leave to file the amended complaint. No issue has been raised on appeal regarding the trial court's refusal to permit the filing of the amended complaint.

2 . Since the special verdict only submitted the issue of the negligence of plaintiff Richard Blankenship and defendant David Weidner to the jury for their consideration, the trial court eliminated the following paragraph in Plaintiff s Proposed Instruction No. 16:

If the negligence of Richard Blankenship is less than 50% of the negligence, then plaintiffs will not recover any damages unless the negligence attributable to Richard Blankenship is less than the negligence attributable to the defendant. (Emphasis added.)

Although this portion of Plaintiffs Proposed Instruction No. 16 was not given because it was inappropriate where only the negligence of two parties was submitted to the jury, that paragraph also imputed Richard Blankenship’s negligence to Deborah Blankenship, just as the pri- or paragraph in Plaintiffs Proposed Instruction No. 16 did.