Patrick Simondet, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0058

Patrick Simondet, et al.,
Appellants,

vs.

Robert Enga, et al.,
Respondents.

Filed September 16, 2019
Reversed and remanded
Florey, Judge

Sherburne County District Court
File No. 71-CV-17-6

Michael L. Weiner, Gregory T. Yaeger, Yaeger & Weiner, P.L.C., Minneapolis, Minnesota
(for appellants)

Stephen M. Warner, Mark S. Brown, Bradley L. Idelkope, Arthur, Chapman, Kettering,
Smetak & Pikala, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
This case arises out of a vehicle collision between respondent Robert Enga (Enga)
and appellant Patrick Simondet. Following the accident, a jury trial was held on appellants’
claims of negligence and loss of consortium against respondents Enga and his employer,

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M & K Repair, Inc. (M & K).1 The jur y found that Enga was negligent, but that his
negligence was not a direct cause of the accident. Accordingly, the district court entered
judgment in favor of respondents. Because we conclude that there was insufficient
evidence to establish that Enga was confronted with an emergency, and the jury’s verdict
cannot be reconciled with the evidence presented, we reverse and remand for a new trial.
FACTS
On a morning in September 2014, Enga ran a stop sign and collided with a vehicle
driven by Simondet. Enga had been trans porting asphalt for use in road -construction
projects and was driving a Freightliner semi-rig owned by his employer, M & K. He was
one of several truck drivers that was on the road hauling asphalt to and from different
locations. Just prior to the collision, Enga had been traveling westbound on County Road
16—a route he was familiar with and had traveled several times already that morning.
Because of his familiarity with the route, Enga was aware that a stop sign was
located on County Road 16, just before the road intersects with Highway 25, and that there
were warnings leading up to the stop sign. When Enga was approximately half a mile from
the stop sign, he began to downshift in anticipation of the intersection. Enga failed,
however, to stop at the intersection, and, consequently, collided with Simondet’s vehicle.
Simondet, who was traveling southbound on Highway 25, had the right of way and no stop
signs.

1 Appellant Patrick Simondet was alone in his vehicle at the time of the crash. The claim
of his wife, appellant Mary Simondet, is for her loss of consortium. All further “Simondet”
references regarding driving conduct and injuries will refer to Patrick S imondet, but the
legal issues apply equally to Mary Simondet’s consortium claim.

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Enga later testified that his reason for failing to stop was because a foreign object—
dust, dirt, or sand—unexpectedly flew into his eye. He explained that he had been driving
with the driver’s-side window down and believed that dust, dirt, or sand—kicked up from
the trucks traveling in the opposite direction —had bounced off his side mirror and struck
him in his left eye, thereby momentarily distracting him from the road. Enga removed his
glasses, rubbed at his eye, and, just as he saw that his vehicle was directly in front of the
stop sign, slammed on his breaks. The semi-rig skidded about 120 feet before colliding
into Simondet’s vehicle. Enga testified that, had he hit the brakes immediately after the
matter hit his eye, he probably would have been able to stop in time.
Because of a grove of trees located in the northeast quadra nt of the intersection,
Simondet’s view of the semi-rig was blocked until about 190 feet prior to the centerline of
Highway 25. Upon impact with Enga’s truck, Simondet’s vehicle accelerated sideways at
approximately 23 miles per hour (mph). Simondet sust ained a blow to the head and was
taken by ambulance to an emergency trauma center.
Appellants filed suit against respondents for damages sustained as a result of the
accident. Appellants claimed negligence and loss of consortium. Appellants also moved
the court to prevent respondents from discussing the emergency rule at trial.
A motion hearing was held to address the parties’ motions in limine. At the motion
hearing, respondents , in effect, conceded to negligence, barring appli cation of the
emergency rule . Specifically, r espondents’ counsel stated, “We realize that if an
emergency—if the response to the emergency wasn’t reasonable, then we’re at fault. We
understand that.” The district court denied appellants’ motion to prohibit respondents from

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discussing the emergency rule in voir dire and its opening statement, but reserved its ruling
as to whether the rule would be included in the jury instructions.
A jury trial was held in June 2018. Simondet and Enga both testified, as did several
expert witnesses, including an accident reconstructionist and medical experts. Appellants
moved for judgment as a matter of law, and, alternatively, to exclude from the jury
instructions an instruction on the emergency rule. The district court denied both motions.
The jury found Enga negligent, but that his negligence was not a direct cause of the
accident. In terms of damages, the jury found that $48,427.07 for “[p]ast health care
expenses” would “fairly and adequately compensate [appellan t] Patrick Simondet for
damages directly caused by the accident.” The jury awarded no amount for past pain and
suffering, nor any amount for future damages.
The district court entered judgment in favor of respondents. The district court found
that appellants failed to meet their burden to prove Enga’s negligence was a direct cause
of the accident, and that, consistent with the jury’s special verdict, appellants were not
entitled to recover any amount of damages.
Appellants filed a motion for a new tria l and amended findings. The district court
denied appellants’ motion, and appellants, thereafter, appealed.
D E C I S I O N
As a preliminary matter, the parties do not dispute that Enga was negligent. Rather,
the issue on appeal is whether the district court erred by instructing the jury on the
emergency rule. Appellants contend that, because the evidence did not support a

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conclusion that an emergency existed, the district court abused its discretion by including
the emergency rule in the jury instructions. Appellants seek a new trial.
“The district court has discretion to decide whether to grant a new trial, and we will
not disturb the decision absent a clear abuse of that discretion.” Russell v. Johnson , 608
N.W.2d 895, 899 (Minn. App. 2000), review denied (Minn. June 27, 2000). In addition,
the district court is afforded considerable latitude in determining jury instructions. Id. at
898; see also Daly v. McFarland, 812 N.W.2d 113, 122 (Minn. 2012). If the instruction is
supported by evidence produced at trial, a party is generally entitled to the instruction. See
Daly, 812 N.W.2d at 122. And, where the jury instruction fairly and accurately states the
applicable law, we generally will not reverse the district court’s denial of a new trial. Id.
However, if the jury instruction was erroneous and “such error was prejudicial to the
objecting par ty” or “its effect cannot be determined,” we must remand for a new trial.
Christie v. Estate of Christie, 911 N.W.2d 833, 838 (Minn. 2018) (quotation omitted).
The jury was given the emergency -rule instr uction from 4 Minnesota Practice ,
CIVJIG 25.16 (2014). The instruction provides:
If there was an emergency that a person did not cause,
that person is not negligent if he or she acted in a way a
reasonable person would have acted. In deciding if he or she
acted reasonably consider: (1) The circumstances of the
emergency; and (2) What the person did or did not do.

CIVJIG 25.16.
The emergency rule, as expressed in CIVJIG 25.16, is based on the supreme court’s
decision in Johnson v. Townsend , 261 N.W. 859 (Minn. 1935). See CIVJIG 25.16
authorities. The supreme court held:

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[O]ne suddenly confronted by a peril, through no fault of his
own, who, in the attempt to escape, does not choose the best or
safest way, should not be held negligent because of such
choice, unless it was so hazardous that the ordin arily prudent
person would not have made it under similar conditions.

Johnson, 261 N.W. at 861. The instruction should generally be given “where the evidence
would sustain a finding that one of the persons whose negligence will be submitted to the
jury had been confronted with a sudden peril or emergency and acted under its stress.”
Byrns v. St. Louis County, 295 N.W.2d 517, 519 (Minn. 1980). “The essential requirement
underlying the emergency rule is confrontation of a sudden peril requiring an instinc tive
reaction.” Daly, 812 N.W.2d at 123.
The emergency rule “is an established rule of negligence law in Minnesota.”
Shastid v. Shue , 77 N.W.2d 273, 280 (Minn. 1956). It is “a particular application of the
reasonable care test and operates only to relie ve a driver from liability for errors in
judgment which the ordinarily prudent [person] might make under similar circumstances.”
Brady v. Kroll, 70 N.W.2d 354, 358 (Minn. 1955). Despite facing a sudden, unexpected
emergency, a driver remains obligated to put forth a “reasonable effort to avoid a collision,
and whether he uses reasonable care commensurate with the sudden peril with which he is
confronted is ordinarily a question of fact for the jury.” Id. However, whether a situation
constitutes an emergency is a question of law for the court. See Daly, 812 N.W.2d at 123
(concluding caselaw supported the district court’s determination that the presence of
snowdrift was not an emergency).
Appellants contend that the emergency rule was inapplicable to the case. They
argue that, by driving with his windows rolled down on a road traveled by other trucks

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hauling asphalt, Enga created or contributed to the circumstances that caused something to
get in his eye, thereby barring him from clai ming the protection of the rule. Further, they
contend that Enga’s failure to stop at the stop sign, which he knew was there, did not
constitute an instinctive reaction to a sudden peril. Moreover, appellants argue that getting
struck in one eye with dust, dirt, or sand, whi le having full vision in the other eye and the
ability to brake a vehicle , does not constitute an emergency under Minnesota law .
Although respondents insist that, “[f]or any motorist, being temporarily blinded in one eye
by a foreign object that was also causing considerable irritation would constitute a sudden
emergency,” they fail to cite any authority to support this proposition.
We agree with appellants that the situation with which Enga was confronted did not
constitute an emergency. Although somewh at factually distinguishable, the supreme
court’s decision in Daly is instructive. Following a snowmobiling accident, plaintiff Daly
sued defendant McFarland for injuries he sustained. Id. at 117. Daly and McFarland were
snowmobiling in a group with two others, all four of whom were experienced snowmobile
drivers. Id. As the group approached a ditch, Daly slowed down, and as McFarland passed
him, McFarland’s snowmobile hit a drift and vaulted into the air. Id. To avoid injury,
McFarland pushed the snowmobile away from his body, flipping it in Daly’s direction. Id.
Daly tried to avoid the snowmobile, but the two snowmobiles collided, causing Daly to fall
and suffer injuries. Id.
Daly sued McFarland, arguing that the accident occurred as a result of McFarland’s
excessive and negligent speed. Id. McFarland argued that Daly was negligent for wearing
headphones and failing to pay attention. Id. at 118. The jury found both Daly and

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McFarland negligent, but that Daly’s negligence was not a direct cause of the accident. Id.
On appeal before the supreme court, McFarland argued, among other claims, that the jury
should have been given an instruction on the emergency rule. Id. at 119. The supreme
court was not persuaded. Id. at 124.
The supreme court concluded, “A snowdrift that McFarland described as a normal
hazard of snowmobiling and in the normal range of snowdrifts did not create an emergency
situation here.” Id. at 123-24. The supreme court explained, “McFarland never saw the
drift as hazardous before impact, so any emergency that did occur as a result of his speed
was caused by his own driving and thus was not subject to an emergency rule instruction.”
Id. at 124.
Like McFarland’s awareness of the snowdrifts, Enga was “aware that other trucks
as they pass . . . can kick up dust and dirt.” At trial, he affirmed that he was “well aware”
that, as he was “driving back and forth on County Road 16,” he was “passing trucks” that
“were kicking up dust and dirt.” He further affirmed that he “knew tha t if [he] kept [his]
window down to let in fresh air, [he] [was] also going to be letting in that dust and dirt
every time [he] passed a truck.” Like McFarland, who testified that “in his 20 years of
riding he had never had a snowmobile react to a drift a s it did during this accident,” Enga
also testified that, in his years of truck-driving, he “had never been hit like that before.” Id.
at 118.
Our decision in Barnes v. Dees is factually similar to the case before us and , albeit
unpublished, instructive on the matter. No. A06-240, 2007 WL 3541 (Minn. App. Jan. 2,
2007), review denied (Minn. Mar. 20, 2007). Plaintiff Barnes sued defendant Dees for

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damages resulting from a vehicle collision. Id. at *1. Dees ran a red light and collided
with Barnes, who was entering the intersection on a green light. Id. At trial, Dees testified
that he was familiar with the route he was traveling, that just before the intersection, he
started to sneeze and continued to sneeze several times as he maintained his speed of 30
mph, and that, when he stopped sneezing, he was blinded by the sun, and, as soon as he
observed the red light, he applied his brakes, but, nevertheless, slid into the intersection
where he collided with Barnes’s vehicle. Id. Over Barnes’s objection, the district court
instructed the jury on the emergency rule. Id. The jury found that Dees was not negligent.
Id.
On appeal, Barnes argued that the district court abused its discretion when it
instructed the jury on the emergency rule. Id. at *2. We agreed, and reversed and remanded
for a new trial. Id. at *3-4. We concluded that “none of the Minnesota cases dealing with
the emergency rule have involved sneezing or a comparable physical problem,” and,
further, the evidence did not support a finding that “sneezing deprived Dees of time for
thought or the opportunit y to weigh alternative courses of action or required him to act
speedily by impulse or instinct.” Id. at *3. Accordingly, we concluded that the evidence,
when viewed in the light most favorable to Dee s, did not “give rise to a jury question
regarding whe ther sneezing constituted a sudden peril that deprived Dees of the
opportunity to decelerate or brake.” Id. We reversed and remanded to the district court for
a new trial on the issue of liability, absent the emergency-rule instruction. Id. at *4.
At o ral argument before this court, r espondents’ counsel argued that Barnes is
distinguishable because, in that case, Dees’s testimony established that he had ample time

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to react before reaching the intersection. Respondents’ counsel argued that, unlike Dees,
Enga was deprived of any time to think because he was a mere 450 feet away from the stop
sign at the time the matter struck his eye. Respondents’ counsel argued that Heerman v.
Burke, 266 F.2d 935 (8th Cir. 1959), is more analogous to the situation here.
First, counsel’s argument that Enga was deprived of ample time is unsupported by
Enga’s testimony that, had he hit the brakes immediately after the matter hit his eye, he
probably would have been able to stop in time. Second, respondents did not brief this issue.
Indeed, nowhere in respondents’ appellate brief do they cite to either Barnes or Heerman.
At oral argument, respondents’ counsel conceded that they did not argue Heerman in their
brief, that they did not refute appellants’ reliance on Barnes, and, further, that they did not
cite to any authority to support the proposition that getting sand in one eye constitutes an
emergency. Generally, a party who inadequately briefs an issue waives it. Brodsky v.
Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007). Nevertheless, we are not persuaded by
respondents’ substantive argument.
In Heerman, the plaintiff brought suit against the defendant for injuries sustained
while riding as a passenger in a vehicle driven b y the defendant. 266 F.2d at 936. As the
two were driving together, a wasp flew into the defendant’s shirt sleeve and stung him in
the armpit. Id. The defendant, who had his foot on the brake at the time he was stung,
brought the vehicle to an immediat e stop, which caused the car to veer off to the edge of
the road. Id. “The combination of a sudden stop and the veering off to the right apparently
resulted in [the] plaintiff being thrown forward and injured.” Id. at 936-37.

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Following a jury verdict finding in favor of the plaintiff, the defendant appealed,
alleging that the district court erred in denying his request to have the jury instructed on
the emergency rule. Id. at 936, 938. The defendant argued that , while driving with due
care and at a proper speed, a wasp entered his sleeve and “his natural, instinctive reaction
was to try to contain it, stop the car and then remove the insect from his sleeve.” Id. at 937.
However, argued the defendant, while he was slowing down, “the wasp gave him a s harp,
sudden and very intense sting which startled, surprised and shocked him and caused him
to involuntarily apply the brakes fairly hard and bring the car to a stop quicker than [he]
had intended.” Id. (internal quotations omitted). The defendant argued “that the wasp’ s
entering his sleeve created an emergency for which he was not responsible and resulted in
great mental stress or excitement.” Id.
The Eighth Circuit agreed. Id. at 940. Quoting language from a state court of
appeals, the circuit court stated that the emergency rule
is a principle in the law of negligence recognizing that, where
a motorist is confronted with a sudden emergency, not created
in whole or in part by his own negligence, he should not be
held to the same accuracy of judgment as would be required if
he had time for calm deliberation and that, if he exercises such
care as a very careful and prudent person would have exercised
under the same circumstances, he should not be convicted for
an error in judgment or miscalculation as to space, even though
it might appear subsequently that a wiser and safer course
could have been pursued.

Id. at 939 (quotation omitted). The Eighth Circuit reversed and remanded for a new trial
wherein the jury would be instructed on the emergency rule. Id. at 940.

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The situation confronted by En ga is not analogous to a wasp sting. While we are
mindful that a piece of dirt or sand may have caused Enga to experience some pain or
discomfort in one of his eyes, the circumstance cannot be described as confrontation with
a “sudden peril requiring an instinctive reaction.” Daly, 812 N.W.2d at 123; see also Byrns,
295 N.W.2d at 519. Respondents conceded that Enga was capable of seeing out of his
other eye, and there is no evidence to suggest he was unable to use his legs to brake.
While not comparable to a wasp sting, getting struck in one eye with a piece of dirt
or sand is also distinguishable from other situations that the Minnesota courts have held
constitute an emergency. See, e.g., Minder v. Peterson, 93 N.W.2d 699, 705 (Minn. 1958)
(concluding “no knowledge of the defective condition of the brakes until [driver] was about
165 feet from the intersection” constituted an emergency); Lee v. Smith, 92 N.W.2d 117,
120 (Minn. 1958) (concluding a driver’s collision with a truck stopped on the highway
without adequate warning lights on a rainy night justified submitting the emergency rule
to the jury); see also Daly, 812 N.W.2d at 123 (concluding district court’s characterization
of an emergency “as akin to a deer jumping into the road” was proper); Raden v. Estate of
Tvedt, No. A16 -1525, 2017 WL 1210161, at *1 (Minn. App. Apr. 3, 2017) (affirming
district court’s emergency -rule instruction where evidence showed that defendant, who
collided with plaintiff’s vehicle, had suffered a first -time seizure while driving) , review
denied (Minn. June 28, 2017).
In sum, the district court erred in instructing the jury on the emergency rule. And,
as we explain next, because the jury’s verdict regarding causation and damages is palpably

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contrary to the evidence, the effect of the erroneous instruction “cannot be de termined.”
Christie, 911 N.W.2d at 838.
Generally, “where a jury has found negligence without causation,” appellate courts
are reluctant “to second -guess the verdict.” George v. Estate of Baker , 724 N.W.2d 1, 6
(Minn. 2006). However, where a jury’s answ er to a special-verdict question “is perverse
and palpably contrary to the evidence and no reasonable mind could find as did the jury,”
the verdict must be set aside. Russell, 608 N.W.2d at 899 (quotation omitted); see also
ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (stating “the
verdict must stand unless it is manifestly and palpably contrary to the evidence”), review
denied (Minn. Apr. 29, 1992).
While we are generally disinclined to disturb a jury’s answer to special -verdict
questions, we conclude that, based on the lack of evidence that the collision was caused by
anything other than Enga’s failure to stop at the intersection, the jury’s verdict cannot stand.
Unlike a case where “the jury could reasonably have found [the defendant] negligent
without causation for a variety of reasons,” in the matter before us, respondents presented
no other reasonable explanation for the collision . See George , 7 24 N.W.2d at 7
(concluding that, because there was evidence in the record to support the jury’ s finding of
no causation, the verdict “was potentially reasonable” ). The only evidence of causation
that was presented to the jury was Enga’s failure to stop at the stop sign. Thus, the jury’s
finding that Enga was negligent , but that his negligence was not a direct cause of the
accident, is contrary to the evidence and constitutes an irreconcilable verdict.

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In addition to the finding on causation, the jury’s findings on damages further
demonstrate that a new trial is warranted. For example, while the jury awarded Simondet
$48,427.07 for past health-care expenses “directly caused by the accident,” it awarded none
for pain and suffering , despite evidence showin g that much of the accrued medical
expenses were to treat pain resulting from Simondet’s accident-related injuries. The jury’s
findings on damages are irreconcilable and contrary to the evidence.
In sum, we conclude that there was insufficient evidence to establish that Enga was
confronted with an e mergency; thus, it was error for the district court to instruct the jury
on the emergency rule. Daly, 812 N.W.2d at 122. And, because its effect on the jury’s
findings on causation and damages cannot be determined and the jury’s verdict was
palpably contrary to the evidence, we must reverse and remand for a new trial, wherein the
jury will be asked to weigh the reasonableness of Enga’s conduct, absen t the emergency-
rule instruction. See Christie, 911 N.W.2d at 838.
Reversed and remanded.