Summary 2006 WY 85

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Case Name: Nish v. Schaefer

Citation: 2006 WY 85

Docket Number: 05-221

Appeal from the District Court of Teton County, Honorable Nancy Guthrie, Judge

Representing Appellant (Plaintiff): Robert E. Schroth of Schroth & Schroth, Jackson, WY

Representing Appellee (Defendant): George Santini of Ross & Santini, Cheyenne, WY

Date of Decision: July 18, 2006

Issues: Whether the correctly instructed with regard to the use of crosswalks by bicyclists. Whether the trial court abused its discretion by awarding costs to Appellee.

Holdings: The district court's jury instruction concerning the relative rights and responsibilities of the parties was erroneous. However, Appellant failed to present a proper instruction on the law to the district court and failed to designate an adequate record showing, under the plain error standard, he was prejudiced by the instruction. Moreover, the court refused to consider Appellant's allegation the district court erred by awarding certain costs to Appellee because Appellant's separate appeal of the district court's order awarding costs was dismissed for want of prosecution.

In order to determine whether the instructions in the present action properly advised the jury of the law, the relevant statutes dealing with the rights and obligations of bicyclists and drivers of motor vehicles must be interpreted. The rules of statutory interpretation are well known. It must first be decided as a matter of law whether the statute is clear or ambiguous. A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. A statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. When interpreting statutes plain language is applied to give effect to every word, clause and sentence, and construe them in pari material.

In the present case, there are numerous statutes defining the relative duties of drivers and bicyclists. Applying the plain language of the relevant statutes and construing the all the sections together leads to the conclusion that bicycles hold a special place in the law because they can be operated both on roadways and on sidewalks. When a bicyclist is riding in the roadway, he must generally obey the laws governing vehicles. However, unlike motorized vehicles, by law bicycles may also be ridden upon sidewalks because they are human-powered. Logically, the right of a bicyclist to ride upon sidewalks with pedestrians extends to the use of a crosswalk when crossing an intersection. Pursuant to Wyo. Stat. 31-5-403 and 31-5-504, if a bicyclist is lawfully within the crosswalk, a vehicle facing a red light must stop behind the crosswalk, yield the right-of-way to the bicycle, and may not make a right turn until the way is clear.

In the present action, the district court instructed the jury that any person riding a bicycle has the rights and duties applicable to the driver of a vehicle. This statement is consistent with Wyo. Stat. 31-5-702. The instruction continued by stating pedestrians have the right of way in crosswalks and drivers must yield to pedestrians. Again, this is a correct statement of the law under Wyo. Stat. 31-5-403. The instruction also correctly recited the laws pertaining to Appellee's duties to operate his vehicle in a safe manner, refrain from stopping or parking his vehicle on a crosswalk, and stop at the crosswalk for a red light. The district court, however, went awry when it stated that bicyclists are not treated as pedestrians under the law, suggesting bicyclists are always treated as other operators of vehicles. This statement implied to the jury that, because bicyclists are subject to the rules which apply to vehicles and not treated as pedestrians, they may not use a crosswalk. The district court's instruction suggested an overbroad interpretation of § 31-5-702's directive that bicycles are subject to the duties applicable to vehicles. The district court's interpretation did not give effect to § 31-5-120, which specifically states bicycles are allowed to use sidewalks. Construing §§ 31-5-702 and 31-5-120 to give effect to each, a bicyclist must follow the rules applicable to vehicles when riding on the roadway; however, since a bicyclist may also use sidewalks, he has the same rights as pedestrians to use crosswalks at intersections. Thus, the instruction the district court gave incorrectly implied Appellant was not entitled to use the crosswalk. Furthermore, the instruction improperly excluded the law set out in Wyo. Stat. 31-5-403(a)(iii)(C), directing that "vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection." This statement of the law was necessary to inform the jury which party had the right of way at the intersection. The jury should have been instructed that Appellant had the right of way while in the crosswalk and Appellee was obligated to yield to him before making a right-hand turn on a red light. As such, the district court did not properly instruct the jury on the law in this case.

However, although Appellant objected to the instruction because it implied he was not entitled to use the crosswalk and did not include the law set forth in § 31-5-403(a)(iii)(C), the record on appeal does not include any specific instructions offered by Appellant to correct the errors. In addition, the record does not include any indication Appellant referred the district court to § 31-5-120 or the cases from other jurisdictions which support the principle that bicyclists may use sidewalks and crosswalks. An objection to an instruction is not complete without a correct typewritten form being handed to the court for its use. Parties have not only the right but the duty to offer instructions. In the absence of submission of a proper written instruction, any claimed error is deemed to have been waived. It is insufficient merely to state that the instruction is not complete or an accurate statement of the law. Having failed to demonstrate he filed an appropriate instruction for the district court's consideration, Appellant must show plain error in order to receive a reversal of the resulting judgment. The well-known elements of plain error are: (1) the record reflects clearly and unequivocally the fact complained of; (2) the facts prove a transgression of a clear rule of law; (3) the error affects a substantial right of appellant; and (4) appellant has been materially prejudiced by that violation.

Here, although the first two elements can be satisfied by the record extant, Appellant must also show material prejudice resulting from the incorrect jury instruction. For an instructional error to warrant reversal, there must be a reasonable probability that, in absence of the error, the verdict would have been more favorable to the appellant. To measure the degree of prejudice, jury instructions are viewed in light of the entire trial, including the allegations of the complaint, conflict in the evidence on critical issues and the arguments of counsel. A five-factor test is used to measure the prejudice resulting from an error. Those factors are: (1) the extent to which there is conflict in the evidence on critical issues; (2) whether or not the argument to the jury may have contributed to the instruction's misleading effect; (3) whether or not the jury requested a re-reading of the erroneous instruction or of related evidence; (4) the closeness of the jury's verdict; and (5) the effect of other instructions in curing the error.

The only portions of the trial transcript designated by Appellant as the record on appeal were the jury instruction conference and the closing arguments. The lack of a full trial transcript makes it impossible to analyze the first and third elements of the test because it cannot be determined the extent of conflict in the evidence on the key issues or whether the jury requested a re-reading of the erroneous instruction or related evidence. Thus, it is impossible for Appellant to show there is a reasonable probability that, in absence of the instructional error, the verdict would have been more favorable to him. Appellant had the responsibility to provide an adequate record to this Court to enable us to conduct our review. The failure to do so is fatal to his claim on appeal.

The district court entered a judgment on the jury's verdict, and ordered costs be awarded to Appellee. Appellant filed a notice of appeal from the judgment on the jury's verdict, which is the case at bar. Appellee then submitted a certified statement of costs, pursuant to Uniform Rule of District Court 501, and a Motion for Award of Costs, pursuant to W.R.C.P. 68, outlining the specific costs requested. Appellant objected to Appellee's requests, but the district court apparently was not convinced by those objections and entered an order awarding all of the specific costs requested by Appellee. Thereafter, Appellant filed a second notice of appeal, challenging the district court's award of costs. That appeal was docketed as a separate action. Appellant did not file a brief in that action and it was dismissed for want of prosecution. Undaunted by the dismissal of the costs appeal, Appellant included an issue in his brief in this case contesting the award of costs. Even though the judgment on the merits referenced costs by directing the parties to file motions for "attorneys' fees and costs," it does not include by implication the appeal from the district court's order on costs and issues pertaining to that order cannot be raised. The costs issue is not properly before the Court because Appellant's costs appeal was dismissed for want of prosecution

Affirmed.

J. Kite delivered the opinion for the court.