Foster v. Strutz

646 N.W.2d 104 (2001)

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Nature of the Case

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Facts

P and a friend were passengers in a pickup driven by a third friend. They spotted a vehicle, occupied by Ds sitting in parking lot. P's car pulled into the parking lot as did a third vehicle. The third vehicle was occupied by several young men. P was standing alongside the pickup. 'All of a sudden' three to five young men from the third car approached D as he was sitting in the passenger seat of his car. They began yelling at D, striking him through the open window, and attempting to pull him out of the car. D shielded D1, who was in the driver's seat, by pulling her down into his lap. D saw a fist come through the driver's window and hit the gearshift. He heard a clicking noise, which he believed placed the car in reverse. D1 seated in the driver's seat but laying across D's lap, stepped on the accelerator, believing the car was in drive. The car was in reverse and backed toward the pickup. P attempted to pull herself over the side and into the bed of the pickup, but her foot was crushed between the rear bumper of D's car and the side of the pickup. The altercation began, about ten or fifteen seconds before D1 stepped on the accelerator. P sued Ds who in turn filed a third-party petition naming one of the assailants as a third-party defendant. The district court refused to give a sudden-emergency instruction. The court also refused to instruct the jury on comparative fault. The jury found the third-party defendant was not negligent and attributed fifty-five percent of the fault to D and forty-five percent to D1. The jury assessed damages in favor of P in the amount of $289,576. D appealed, claiming the jury should have been instructed as to sudden emergency and P's comparative fault, and that the verdict was excessive. The Court of Appeals overturned the ruling on the sudden emergency. P appealed.