Virginia L. Bishop v. Dennis Parks d/b/a Dennis Parks & Son (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Oct 23 2015, 9:04 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Roger L. Pardieck Scott L. Tyler
Karen M. Davis Eric T. Eberwine
The Pardieck Law Firm Waters, Tyler, Hofmann & Scott,
A Professional Corporation LLC
Seymour, Indiana New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Virginia L. Bishop, October 23, 2015
Appellant-Plaintiff, Court of Appeals Case No.
39A05-1411-CT-533
v.
Appeal from the Jefferson Circuit
Dennis Parks d/b/a Dennis Court
Parks & Son, The Honorable Darrell M. Auxier,
Judge
Appellee-Defendant
Trial Court Cause No.
39C01-1012-CT-702
Crone, Judge.
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Case Summary
[1] Dennis Parks d/b/a Dennis Parks & Son was backing up his Mack dump truck
when he ran over Virginia L. Bishop who was working as a flagger at a
construction site. Bishop filed a negligence action against Parks. At the jury
trial, Parks introduced part of the investigating officer’s police report. The trial
court admitted that part of the report over Bishop’s objection. The jury found
that Bishop was 80% at fault. Bishop filed a motion to correct error and for a
new trial, arguing that the police report was inadmissible hearsay. The trial
court found that any error in the admission of the report was harmless and
denied her motion.
[2] Bishop appeals, arguing that the trial court abused its discretion in admitting
part of the police report and that its admission prejudiced her substantial rights.
We conclude that any error in the admission of the police report was harmless,
and therefore we affirm.
Facts and Procedural History 1
[3] In April 2010, Dave O’Mara Contractor, Inc., was overseeing a road
construction project to widen Indiana State Road 62 in Jefferson County. The
construction site was immediately adjacent to S.R. 62. Parks worked for
O’Mara as an independent contractor operating a Mack dump truck to haul dirt
1
Parks presents his statement of facts as a witness-by-witness summary of the testimony rather than in a
narrative form as required by Indiana Appellate Rule 46(A)(6)(c).
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away from the construction site. Multiple dump trucks entered the construction
site to be loaded with dirt and haul it away. The dump trucks entered the
construction site from S.R. 62, backed into a staging area, and waited until the
excavator was ready with a load of dirt. Once the excavator loaded its bucket,
it would swing the bucket around to the loading area and raise the bucket. The
raised bucket unambiguously signaled to the truck driver that the excavator was
ready to load the truck, and the driver backed the truck into position to be
loaded. However, the excavator did not always signal to the truck drivers, and
it was common for the trucks to back into the loading area before the excavator
swung the bucket around. The construction workers understood that the
process of loading the dump trucks was to be completed quickly. When the
dump truck was loaded, the truck would get back on S.R. 62 to transport the
load away.
[4] Parks could not see directly behind his dump truck. Parks’s truck was equipped
with a backup alarm that came on when the truck was in reverse. Parks was a
certified mechanic, and he had hooked his backup alarm to a toggle switch in
the cab that allowed him to deactivate the alarm. The purpose of the alarm is to
alert workers that the truck is backing up so that they can get out of the way.
Multiple alarms were often heard simultaneously at the construction site.
[5] Bishop was employed by O’Mara as a flagger at the construction site. Her job
was to stop traffic on S.R. 62 so that the loaded dump trucks could exit the
construction site and get back on S.R. 62. She also directed traffic coming in
and out of local businesses adjacent to the construction site, so that the dump
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trucks could proceed to be loaded if the excavator was ready. If the excavator
was not ready, she directed the truck driver to remain stationary and permitted
local traffic to pass. Bishop did not direct the trucks to the excavator unless
there was other traffic present. Bishop had received flagger safety training from
the American Traffic Safety Services Association. Bishop was taught that
flaggers should remain in full view of all vehicles, that it was unsafe to stand
behind equipment like dump trucks, and that she should not turn her back on
equipment unless circumstances required it. Bishop knew that dump truck
drivers had a blind spot directly behind the truck. Bishop knew that she should
not stand directly behind a dump truck with her back to it.
[6] On the day of the accident, Parks placed the backup alarm toggle switch in the
“On” position. Bishop noticed that Parks’s backup alarm was working properly
all day. The accident occurred near the end of the work day. Parks pulled into
the construction site and backed into the staging area. Bishop heard Parks’s
backup alarm as he backed up. Bishop went to either the driver side or the
passenger side of Parks’s dump truck and told him that he was the last truck of
the day. Bishop jumped down from the truck and went to her post near the
passenger side rear corner of Parks’s truck.
[7] Parks saw that the excavator was not ready to load the truck. Parks got out of
the truck and went to the back of the truck to talk to Bishop. Bishop came over
to him behind the truck, and they stood there and talked. When Parks
determined that the excavator was ready for him, he told Bishop that he had
better go because the excavator was waiting on him. Bishop told him that she
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would check for traffic first, but Parks did not hear her. Bishop understood that
when Parks returned to his truck he planned to back up to the excavator.
[8] Parks got back into the truck. He did not see any other vehicles. He checked
his mirrors and slowly started backing into the loading area. He did not see
Bishop in his mirrors. He believed that Bishop was going back onto S.R. 62 by
the construction barrels. Bishop was standing behind the truck with her back to
it. She did not hear the backup alarm. The truck struck her right knee and right
elbow and knocked her down, and the truck wheels ran over her. She heard her
bones breaking. She screamed and pounded the tires. Parks heard screaming,
so he stopped the truck, pulled forward, and got out to see what was wrong.
[9] O’Mara employee Regan Martin was operating a GPS near the excavator to
determine road grade. Regan was about 150 feet away from the back of Parks’s
truck. He saw Parks come to the back of the truck and Bishop walk over to
him. Parks and Bishop stood talking behind Parks’s truck. Regan saw Parks
walk back toward the cab. He saw Bishop standing behind the truck, with her
back to it, looking down at something in her hands. She was standing in the
vehicle’s blind spot. Her stop sign was placed between her knees. Regan was
not aware of any job function requiring Bishop to stand behind Parks’s truck.
Regan saw the truck’s backup lights come on. He waived to warn Bishop, but
she did not see him. He did not hear the backup alarm, but he could not have
heard it from where he was standing. Regan ran toward Bishop and saw the
truck run over her.
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[10] Judy Boldery was driving north on S.R. 62. She approached the construction
site, which was on her left. Boldery saw Bishop at the rear corner of the truck
behind the wheels. Bishop was facing away from the truck. Boldery saw the
truck slowly back up, and Bishop suddenly went down. Boldery had her
windows up and the radio on. Boldery did not hear the backup alarm. Boldery
saw the truck stop on Bishop’s legs and saw Bishop hitting the tires. Boldery
heard Bishop screaming.
[11] O’Mara employee James Martin was operating the excavator. In his side
mirror, he saw Parks speaking with Bishop. The excavator had an alarm that
went off whenever the excavator moved. At the time of the accident, James
was repositioning the excavator, and therefore his alarm was sounding. James
saw Regan running toward Parks’s truck. Regan was yelling, “Call 911.” Tr.
at 390. James saw Bishop lying on the ground, and he called 911.
[12] Parks was screened for drugs and the results were negative. Bishop’s injuries
included fractures of the right tibia, left femur, pelvis, ribs, and sacrum. She has
had numerous surgeries related to her injuries. She continuous to require pain
medication and is not expected to be able to return to her job.
[13] O’Mara Safety Director Ted Westerman conducted an investigation of the
accident. In April 2010, he received Bishop’s written report of the accident,
which she completed while she was still in the hospital (“Bishop’s Hospital
Statement”). Plaintiff’s Ex. 36; Exhibit Vol. IX.
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[14] Indiana State Trooper Nate Adams investigated the accident. He took
photographs and interviewed Parks, Regan, Boldery, and Bishop. He
interviewed Bishop by telephone in August 2010, a few months after the
accident. He prepared a report that included the narrative accounts provided by
Parks, Regan, Boldery, and Bishop (“the Crash Narrative”). Defendant’s Ex.
P; Exhibit Vol. XI; Appellant’s App. at 106.
[15] Bishop filed a negligence action against Parks. Before trial, Parks filed a
motion in limine to exclude the “contents of the Police Report completed by the
investigating officer,” which included the Crash Narrative, and “the testimony
of the investigating officer regarding his opinion as to the fault allocated to
either party.” Appellant’s App. at 32-33. Parks contended that Officer
Adams’s police report, which records the alleged observations of witnesses, was
inadmissible hearsay. Id. at 38. 2 The trial court granted the motion. Id. at 43.
[16] A four-day jury trial was held. Among her eleven witnesses, Bishop called
Westerman and through him submitted her Hospital Statement. Tr. at 166.
Later, she called Officer Adams as a witness. She asked Officer Adams
whether any of the witnesses that he interviewed during his accident
investigation had told him that they heard Parks’s backup alarm, and he
answered no. Id. at 206-07. On cross-examination, Parks gave Officer Adams
2
Parks wrongly asserts that his motion in limine was to exclude portions of the police report containing the
officer’s causation opinions. Appellee’s Br. at 39. A review of his motion and the supporting memorandum
reveals otherwise. Appellant’s App. at 32, 38.
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the Crash Narrative and asked him if he recognized it, and he said that he did.
Id. at 208. Parks asked Officer Adams what the document was, and Officer
Adams identified it as the Crash Narrative and explained that it contained the
statements of the witnesses that he had interviewed. Id. at 208. Parks then
went through each witness, statement by statement, asking Officer Adams
whether that witness had made that statement, to which he replied
affirmatively. At no point was any portion of Officer Adams’s police report
that referred to his opinion on causation discussed.
[17] Parks then offered the Crash Narrative into evidence. Bishop apparently
objected to its admission, but much of the argument was inaudible and not
recorded in the transcript. Id. at 213. Bishop acknowledged that the Crash
Narrative was used for the purpose of refreshing Officer Adam’s recollection.
Bishop told the trial court that she had not brought up the police report because
Parks had asked for it to be excluded in his motion in limine. Bishop stated that
if the Crash Narrative was to be admitted, then for completeness the rest of the
police report should be admitted. Parks argued that Officer Adams had already
testified as to what each of the witnesses had told him and that his written
account did not express his opinions about how the accident occurred. The
trial court agreed with Parks and admitted the Crash Narrative but not any
other part of the police report. Id. at 214. When Bishop conducted her redirect
examination of Officer Adams, she questioned about what she had told him in
the Crash Narrative. She did not question Officer Adams about any other
portion of his police report or his opinion on causation.
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[18] When Parks cross-examined Bishop, Parks questioned her about the description
of the accident in Crash Narrative. Id. at 364. Bishop objected, and the trial
court overruled her objection. Bishop testified that she only vaguely recalled
talking to Officer Adams, and that the account in the Crash Narrative did not
make sense.
[19] In closing argument, Parks discussed the differences among Bishop’s trial
testimony, her Hospital Statement, and the Crash Narrative. Id. at 605-06.
Parks asserted that Bishop changed her story after she learned that Regan had
seen the accident and saw her standing directly behind the truck. Id. at 606-07.
[20] The jury found that Bishop was 80% at fault and that Parks was 20% at fault.
The trial court entered judgment in favor of Parks. Bishop filed a motion to
correct error and for a new trial, arguing that the Crash Narrative was
inadmissible hearsay, was improperly admitted, and prejudiced her substantial
rights. The trial court concluded that any error resulting from the introduction
of the Crash Narrative was harmless and denied her motion. Bishop appeals.
Discussion and Decision
[21] Bishop argues that the trial court erred in admitting the Crash Narrative into
evidence because it is hearsay and that its admission prejudiced her substantial
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[22] rights and was not harmless. 3 “We review a trial court’s denial of motion to
correct error for an abuse of discretion, reversing only where the trial court’s
judgment is clearly against the logic and effect of the facts and circumstances
before it or where the trial court errs on a matter of law.” Perkinson v. Perkinson,
989 N.E.2d 758, 761 (Ind. 2013). 4 “We review a trial court’s decision on the
3
Parks argues that Bishop waived this claim of error because her objection at trial was not specific enough.
See GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002) (“As a
general rule, a party may not present an argument or issue to an appellate court unless the party raised that
argument or issue to the trial court.”). We disagree. Bishop objected that the Crash Narrative was excluded
under the trial court’s order in limine, and Parks had argued that it was inadmissible hearsay as the basis for
its exclusion. Appellant’s App. at 38. Therefore, Bishop’s objection properly preserved her hearsay claim.
Bishop concedes that she failed to properly preserve other claims of error connected with the Crash
Narrative, and for these issues she argues that fundamental error occurred. See Lehman v. State, 926 N.E.2d
35, 38 (Ind. Ct. App. 2010) (“The fundamental error doctrine is extremely narrow and applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process.”). In civil cases, we have limited the
fundamental error doctrine to cases involving involuntary commitment and termination of parental rights.
Johnson v. Wait, 947 N.E.2d 951, 959 (Ind. Ct. App. 2011), trans. denied. We decline to address Bishop’s
fundamental error claims because she has failed to show that the doctrine should be extended to cases that do
not involve liberty interests or parental rights. Id.
4
Parks asserts that Bishop is appealing a negative judgment and thus is entitled to prevail only if the
judgment is contrary to law, citing Captain and Co., Inc. v. Towne, 404 N.E.2d 1159, 1162 (Ind. Ct. App.
1980). In Captain, another panel of this Court observed that the appellant’s argument that the judgment was
unsupported by the evidence was unavailable to one who had the burden of proof at trial. Id. However,
Captain was not an appeal of a motion to correct error. In Walters v. Dean, 497 N.E.2d 247 (Ind. Ct. App.
1986), we dealt with such an appeal and explained,
In his motion to correct errors, Walters asserted the judgment was erroneous because it was
contrary to the evidence. Because Walters is appealing from a negative judgment, he cannot
challenge the sufficiency of the evidence to sustain the judgment. Rather, he may only
challenge the judgment as being contrary to law. This means we may reverse only where the
evidence is uncontradicted and leads unerringly to a conclusion different from that reached by
the trial court.
Id. at 249 (citations omitted). See also, e.g., Smitley v. Egley, 156 Ind. App. 10, 12, 294 N.E.2d 640, 641 (1973)
(Where the motion to correct error seeks to assign as error that the court’s decision is contrary to the evidence
and based on insufficient evidence, there is no issue for appellate review inasmuch as the denial of the
underlying action was a negative judgment.).
Here, in her motion to correct error, Bishop argued that the trial court erred by admitting the Crash
Narrative. Therefore, Walters does not apply and we will review the denial of Bishop’s motion to correct
error for an abuse of discretion.
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admissibility of evidence for an abuse of discretion, which occurs when the
decision is against the logic and effect of the facts and circumstances before the
court.” Duneland Properties, LLC v. N. Indiana Pub. Serv. Co., 14 N.E.3d 95, 102
(Ind. Ct. App. 2014). However, any error in the admissibility of evidence will
not be grounds for reversal unless it affects the substantial rights of a parties.
Ind. Trial Rule 61. “‘Further, any error in the admission of evidence is
harmless if the same or similar evidence is submitted without objection.’” Green
River Motel Mgmt. of Dale, LLC v. State, 957 N.E.2d 640, 646 (Ind. Ct. App.
2011) (quoting R.R. Donnelley & Sons Co. v. N. Texas Steel Co., 752 N.E.2d 112,
127 (Ind. Ct. App. 2001), trans. denied (2002)). “To determine whether the
admission of evidence affected a party’s substantial rights, we assess the
probable impact of the evidence upon the jury.” Sibbing v. Cave, 922 N.E.2d
594, 598 (Ind. 2010).
[23] We need not determine whether the Crash Narrative was inadmissible hearsay
because we conclude that it was cumulative of other evidence submitted
without objection and did not prejudice Bishop’s substantial rights. 5 Bishop’s
Hospital Statement, which she herself submitted, contained virtually an
5
Bishop argues that sending the Crash Narrative back to the jury room was prejudicial error. Our review of
the record shows that she only objected to the admission of the Crash Narrative during Officer Adams’s
cross-examination and to Parks’s use of it during his cross-examination of Bishop. In addition, Bishop’s
assertion that it was sent back to the jury room is not supported by citations to the record, and therefore her
argument is insufficiently developed and waived. See Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App.
2006) (“Failure to put forth a cogent argument acts as a waiver of the issue on appeal.”); Ind. Appellate Rule
46(A)(8)(a) (providing that each contention must be supported by cogent reasoning and citations to the
record relied on).
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identical description of the accident that is recorded in the Crash Narrative.
Both descriptions included the following statements in the same order: Parks
was Bishop’s last truck; he was not ready to be loaded; Bishop was on the
passenger side of the truck talking to him; he was ready to be loaded, so she
jumped down to check on traffic; she told Parks to sit tight so that she could
check on traffic; there was no traffic so she turned to let Parks know that it was
clear; the truck hit her; she did not hear Parks’s backup alarm. Plaintiff’s Ex.
36; Exhibit Vol. IX (Hospital Statement); Defendant’s Ex. P; Exhibit Vol. XI;
Appellant’s App. at 106 (Crash Narrative). The only difference, and a very
minor one, between the two descriptions of the accident is that the Hospital
Statement included an additional phrase, which is that Bishop told Parks that
she would check on traffic “so she could back him up to the machinery.”
Plaintiff’s Ex. 36, Exhibit Vol. IX.
[24] In addition, Regan and Boldery had both already testified before the Crash
Narrative was admitted, and their testimony was consistent with that in the
Crash Narrative. Finally, Officer Adams had already testified without
objection to the contents of the Crash Narrative. Thus, the Crash Narrative
was merely cumulative of other evidence that had already been properly
admitted and did not prejudice Bishop’s substantial rights. See Sibbing, 922
N.E.2d at 598 (concluding that erroneous admission of plaintiff’s testimony
regarding what her doctor told her about her injuries was harmless, where that
evidence was also admitted through other medical treatment records and
plaintiff’s medical witness); Davis v. Garrett, 887 N.E.2d 942, 947 (Ind. Ct. App.
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2008) (concluding that admission of police report was harmless error, where
witness had already testified to precisely same information that was contained
in report before it was admitted), trans. denied. Therefore, we affirm the
judgment.
[25] Affirmed.
May, J., and Bradford, J., concur.
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