Rosendahl v. Brangwynne

Filing 920061006

Opinion

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Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit

No. 06-1097

LAWRENCE A. ROSENDAHL,

Plaintiff, Appellant,

v.

DIANNE M. BRANGWYNNE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]

Before

 Torruella, Selya and Howard,
Circuit Judges.

    Donald Grey Lowry on brief for appellant.
    Bernard J. Kubetz on brief for appellee.

 

October 6, 2006

 

 
         Per Curiam. Plaintiff-appellant Lawrence A. Rosendahl
was injured in a collision between his motorcycle and an automobile
driven by defendant-appellee Diane M. Brangwynne on May 29, 2003.
His suit in Maine Superior Court was removed to the United States
District Court for the District of Maine based on diversity
jurisdiction. There, a jury rendered a verdict in favor of the
defense, based on its finding that plaintiff's fault was at least
equal to defendant's fault within the intendment of Maine's
comparative negligence statute. Me. Rev. Stat. tit. 14, § 156.
Plaintiff moved for judgment as a matter of law notwithstanding the
verdict or, in the alternative, a new trial. The district court
denied his motion. This appeal followed.
         The evidence, viewed in the light most supportive of the
defense verdict, showed that, at a time immediately preceding the
accident, the plaintiff was traveling down a public road behind a
pickup truck. When the road widened, he moved one lane to the left
of the pickup and maintained a position close to the pickup's rear
left quarter panel (in the driver's blind spot). He continued in
this position even as he approached a parking lot entrance/exit
point on the right side of the road, at which exiting cars were
queued. His position made him less visible to cars leaving the
lot. The plaintiff was blind in his right eye, and his left eye
provided only 48 degrees of peripheral vision on his right side.
In all events, the plaintiff's position impeded him from scanning
to the right even if he were to turn his head.
         Meanwhile, the defendant had come to a stop in her
vehicle at the threshold of the exit from the parking lot. She
looked both ways along the road before starting to pull out, but
failed to see the plaintiff on his motorcycle. She crossed into
the plaintiff's path; he saw her for the first time at that moment
and applied his brakes. His motorcycle collided with the side of
the defendant's car, and he flew over the top of the vehicle. Even
at the moment of impact, the defendant did not see the plaintiff or
realize that she had collided with a motorcycle.
         At the time of the collision, the plaintiff held a
recently-expired temporary practice permit for his motorcycle,
issued by the State of Florida. The plaintiff had failed a road-skills licensing test in Florida. He also had read a manual on
motorcycle riding issued by the State of Florida, which contained
substantial material on safety precautions (including safe road
positioning).
         The plaintiff submits that, as a matter of law, the
record shows that he was not negligent in any way that bore a
causal connection to the accident. He specifically contends that
an attribution of negligence to his choice of road positioning is
"unduly burdensome and inherently impracticable."
         We understand that, as a general matter, a driver having
the legal right of way may assume that other drivers will respect
his right of way until he has notice of facts to the contrary. See
Moore v. Fenton, 289 A.2d 698, 706-708 (Me. 1972). At the same
time, however, "the benefits of the existence of a legal right of
way are conferred not absolutely but are enjoyed in relation to the
correlative generalized doctrine that reasonable care must be
exercised in particular and appropriate attendant circumstances."
Id. In this case, the defendant was fully cognizant of the fact
that vehicles traveling along the road had the right of way and
acted accordingly by stopping her car and looking both ways before
proceeding. She left her place of safety - the parking lot - only
because she did not see the plaintiff. While the plaintiff could
proceed with a "degree of faith" in other drivers' respect for the
rules of the road, id. at 707, he could not claim absolute faith in
the perceptual acuity of every other driver, especially when he
voluntarily positioned himself in a hard-to-observe place. In
these circumstances, we think that he had a duty to avoid, to the
extent practicable, road positioning that impaired visibility as
between his motorcycle and vehicles entering into, or crossing, the
stream of traffic.
         Comparing the degrees of fault between plaintiff and
defendant in a case like this one is not easy. The law of Maine is
that, as "long as the causal fault of both parties is factually in
dispute, it is the sole prerogative of the jury to determine the
comparative degrees of fault of each of the parties to a negligence
action." Minott v. F. W. Cunningham & Sons, 413 A.2d 1325, 1332
(Me. 1980)(internal quotation marks and citations omitted). The
jury's determination in this regard was within the bounds of
reason.
         The judgment is affirmed.