Calvin B. Yates v. Rebecca Hites ( 2018 )

FILED
May 18 2018, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Robert D. Brown J. Patrick Schomaker
Sarah M. Cafiero SMITH, ROLFES & SKAVDAHL
KENNETH J. ALLEN LAW GROUP, LLC COMPANY, LPA
Valparaiso, Indiana Cincinnati, Ohio
IN THE
COURT OF APPEALS OF INDIANA
Calvin B. Yates, May 18, 2018
Appellant-Plaintiff, Court of Appeals Case No.
44A03-1710-CT-2459
v. Appeal from the LaGrange
Superior Court
Rebecca Hites, The Honorable Lisa M. Bowen-
Appellee-Defendant. Slaven, Judge
Trial Court Cause No.
44D01-1601-CT-1
Bailey, Judge.
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Case Summary
[1] Calvin B. Yates (“Yates”) filed a civil lawsuit against Rebecca Hites (“Hites”)
for personal injuries arising out of a motor vehicle accident. Yates appeals the
judgment, following a jury trial, in favor of Hites. Yates raises only the
following issue on appeal: whether the trial court abused its discretion when it
gave the jury an instruction on sudden emergency.
[2] We reverse and remand for a new trial.
Facts and Procedural History
[3] In the early morning of January 31, 2014, Hites, who lives in Shipshewana,
received a phone call from her friend, Dave Smith (“Smith”). Smith asked
Hites if she would pick him up because his car had broken down on County
Road 43. While traveling westbound on U.S. 20 on her way to assist Smith,
Hites suddenly lost control of her vehicle, causing her vehicle to swerve across
the centerline of U.S. 20 and strike Yates’ eastbound vehicle. Yates sustained
injuries as a result of the crash.
[4] On August 10, 2015, Yates filed a complaint against Hites, alleging that she
negligently and recklessly drove her vehicle so as to cross the centerline, crash
into his vehicle, and cause him personal injuries. Prior to the jury trial, Hites
requested a special jury instruction regarding “sudden emergency.” Appellant’s
App. Vol. II at 136-139. However, Yates moved in limine to exclude testimony,
evidence, or argument that Hites was confronted with a sudden emergency. Id.
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at 94. Yates also moved in limine to exclude any testimony or argument that
Hites “drove over ‘black ice’ or that ‘black ice’ somehow caused the motor
vehicle crash,” since Hites had stated in her deposition that she had not seen
any black ice on the roadway and that her “contention that there was black ice
on the road [was] just an assumption on [her] part.” Id. at 93, 117-18.1 On
September 12, 2017, the trial court granted Yates’s motions in limine regarding
black ice and sudden emergency. And, on September 20, the trial court rejected
Hites’s proposed instruction regarding sudden emergency.
[5] The case proceeded to jury trial on September 26-28. At trial, Hites testified
that, at the time of year when she was driving (i.e., January), “there’s a
potential for snow and ice to be on the roadway,” Tr. Vol. III at 57, and a
“possibility that the roads could be slippery,” id. at 55. She also testified that
the day prior to the accident, i.e., January 30, the “weather had been
particularly bad and hard for cars.” Id. at 55. However, she testified that, while
she was driving on January 31, 2014, it was not snowing, raining, or sleeting,
and the roads “for the most part were clear.” Id. at 54-55. She testified that
visibility was “fine,” id. at 54, and she had not seen any ice on the roads that
morning, Tr. Vol. IV at 48. Hites testified she was traveling at 30 miles per
1
Although the Exhibit Index prepared by the trial court reporter indicates that Hites’s deposition was
admitted into evidence as Exhibit 19 at page 51 of transcript volume III, we find no such admission; rather,
the transcript shows only that Yates “tendered” Exhibit 19. Tr. Vol. III at 51. And, while relevant portions
of Hites’s deposition transcript are contained in the record as exhibit attachments to Yates’ Motion In Limine,
App. Vol. II at 93, 117-18, that document also was never entered into evidence. Therefore, we cannot
consider Hites’s deposition on appeal. See, e.g., Cochran v. Rodenbarger, 736 N.E.2d 1279, 1283 (Ind. Ct. App.
2000).
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hour on U.S. 20, although the speed limit was 50 miles per hour. Id. at 45; Tr.
Vol. III at 56. She also testified that, while she was driving that day, she had
both hands on the steering wheel and her eyes on the road, and that she was not
“doing anything at all that might have distracted [her] from driving.” Tr. Vol.
IV at 48. She testified that the vehicle she was driving was equipped with
“hands free or Bluetooth capabilities” for using a cellular phone. Id. at 45.
[6] Yates introduced into evidence the AT&T records of Hites’s cellular telephone
calls on January 31, 2014. Plaintiff’s Ex. 26, Ex. Vol. VI. Those records
demonstrated that Hites placed a five-minute telephone call to Smith at 8:53
a.m.; a two-minute call to her husband, William Hites Jr. (“William”), at 9:08
a.m.; a one-minute phone call to Suzanne Frazier (“Suzanne”), the owner of
the car Hites was driving, at 9:10 a.m.; and a two-minute phone call to
Suzanne’s husband, James Frazier (“James”), at 9:11 a.m. At trial, Hites
testified that she did not remember making any telephone calls in the moments
before the crash, Tr. Vol. III at 65, at the time of the crash, id. at 69-70, or after
the crash, id. at 70. In fact, Hites testified she did not remember any of the
events immediately following the crash. However, she testified that she did not
dispute the accuracy of the AT&T records in Exhibit 26.
[7] When Yates asked Hites at trial whether she had called her husband at 9:08
a.m. “to let him know that [she] had stopped at the gas station and used the
bank card to gas up,” Hites testified that, although she did not remember calling
anyone before the crash, Tr. Vol. III at 65, it was “probably” true that she had
called her husband for that reason, id. at 50. However, William testified that
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Hites had called him a “little after nine o’clock in the morning” on that day to
tell him that she had been “in an auto accident.” Tr. Vol. IV at 35. And
Suzanne also testified that the phone call she received from Hites that morning
was after the crash; she stated that Hites called her to tell her about the crash,
and that she had not talked to Hites on that day before that call. Id. at 105-06.
[8] Hites testified she suddenly lost control of the vehicle on January 31. She stated
that, as the rear end of the vehicle slid left, she “tried to counter-steer.” Id. at
44. Yates also testified that, when he saw Hites’s vehicle coming toward him in
his lane, “the driver attempted to correct by making a rapid sharp turn to the
right,” before her vehicle “fishtailed” and struck his vehicle. Tr. Vol. III at 206.
[9] Master Trooper Marc Leatherman of the Indiana State Police (“Trooper
Leatherman”) did not witness the crash, but he arrived at the scene of the crash
at 9:13 a.m. He testified that he was told by Doug VanVooren (“VanVooren”),
an eye-witness to the crash, that it appeared to VanVooren that Hites “was
going too fast for the existing road conditions that morning.” Id. at 81-82.
Trooper Leatherman testified that “there were quite long stretches of U.S. 20
that were covered in ice that morning,” and the ice was “black” so that “you
wouldn’t know it until … your vehicle came upon it.” Id. at 89. Trooper
Leatherman believed the accident happened at 9:13 a.m., but testified that “[i]t
may very well have” happened before 9:08 a.m. Id. at 87. He testified that,
after completing his investigation of the crash, he concluded that Hites had been
“driving at a speed too fast for the existing weather conditions that day.” Id. at
83-84.
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[10] At the close of evidence, but before closing arguments, Hites renewed her
request that the trial court give her previously-tendered jury instruction
regarding sudden emergency. Hites noted that Yates’s own witness, Trooper
Leatherman, had testified that there was black ice on the roadway at the time of
the crash, thereby providing evidence supporting a sudden emergency
instruction. The trial court agreed. Over Yates’s objection, the trial court
granted Hites’s request and instructed the jury as follows:
FINAL INSTRUCTION #2
Defendant claims she was not at fault because she acted with
reasonable care in an emergency situation. Defendant was not at
fault if she proves the following by the greater weight of the
evidence:
(1) she was faced with a sudden emergency;
(2) she did not cause the emergency;
(3) she did not have enough time to consider her options;
and
(4) she acted as a reasonably careful person would act
when facing a similar emergency, even if a different course
of action might later seem to have been a better choice.
Appellant’s App. at 40. The court also gave the following relevant portions of
an instruction regarding negligence:
FINAL INSTRUCTION #1
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***
Plaintiff, CALVIN B. YATES, claims Defendant, REBECCA
HITES, was negligent. Negligence is the failure to use
reasonable care. A person may be negligent by acting or failing
to act. A person is negligent if he does something a reasonably
careful person would not do in the same situation or fails to do
something a reasonably careful person would do in the same
situation.
To recover on this claim, the Plaintiff must prove by a
preponderance of the evidence that:
1. Defendant acted or failed to act in any one or more of the
following ways:
a. Moved at an unreasonable speed;
b. Did not keep a proper lookout;
c. Failed to maintain control of her vehicle; and or
d. Drove while distracted by the use of a cell phone;
2. Defendant’s act or failure to act was negligent; and
3. Defendant’s act or failure to act was a proximate cause of
Plaintiff’s claimed injuries; and
4. Plaintiff suffered damages as a result of the injuries.
***
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Id. at 39.
[11] The jury returned a verdict in favor of Hites. This appeal ensued.
Discussion and Decision
Standard of Review
[12] Yates contends that the trial court erred when it gave the jury a final instruction
regarding sudden emergency.
The manner of instructing a jury is left to the sound discretion of
the trial court. Callaway v. Callaway, 932 N.E.2d 215, 222 (Ind.
Ct. App. 2010). Its ruling will not be reversed unless the
instructional error is such that the [instruction] misstates the law
or otherwise misleads the jury. Id. Jury instructions must be
considered as a whole and in reference to each other. Id. at 222–
23. In reviewing a trial court’s decision to give or refuse a
tendered instruction, we consider: (1) whether the instruction
correctly states the law; (2) whether there is evidence in the
record to support giving the instruction; and (3) whether the
substance of the tendered instruction is covered by the other
instructions that are given. Id. at 223. To determine whether
sufficient evidence exists to support an instruction, we will only
look to that evidence most favorable to the appellee and any
reasonable inferences to be drawn therefrom. Foddrill v. Crane,
894 N.E.2d 1070, 1078 (Ind. Ct. App. 2008), trans. denied.
Finally, “when a jury is given an incorrect instruction on the law,
we will not reverse the judgment unless the party seeking a new
trial shows ‘a reasonable probability that substantial rights of the
complaining party have been adversely affected.’” Id. (citations
omitted).
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Kimbrough v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016), trans. denied. If
there is any evidence to support the instruction, it was properly given. E.g.,
Faulk v. Northwest Radiologists, P.C., 751 N.E.2d 233, 241 (Ind. Ct. App. 2001),
trans. denied.
Sudden Emergency Doctrine
[13] Our Supreme Court has summarized the law regarding the “sudden
emergency” doctrine:
In a negligence cause of action, the sudden emergency doctrine is
an application of the general requirement that one’s conduct
conform to the standard of a reasonable person. The emergency
is simply one of the circumstances to be considered in forming a
judgment about an actor’s fault. The doctrine was developed by
the courts to recognize that a person confronted with sudden or
unexpected circumstances calling for immediate action is not
expected to exercise the judgment of one acting under normal
circumstances. The basis of the doctrine is that the actor is left
no time for adequate thought, or is reasonably so disturbed or
excited that the actor cannot weigh alternative courses of action,
and must make a speedy decision, based very largely upon
impulse or guess. Under such conditions, the actor cannot
reasonably be held to the same accuracy of judgment or conduct
as one who has had full opportunity to reflect, even though it
later appears that the actor made the wrong decision, one which
no reasonable person could possibly have made after due
deliberation. In Indiana, a defendant seeking a sudden
emergency instruction must show that three factual prerequisites
have been satisfied: 1) the defendant must not have created or
brought about the emergency through his own negligence; 2) the
danger or peril confronting the defendant must appear to be so
imminent as to leave no time for deliberation; and 3) the
defendant’s apprehension of the peril must itself be reasonable.
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Willis v. Westerfield, 839 N.E.2d 1179, 1184 (Ind. 2006) (quotations and citations
omitted). A trial court “has a duty to instruct the jury concerning [the sudden
emergency] defense if there is any evidence to support its application.” Compton
v. Pletch, 561 N.E.2d 803, 807 (Ind. Ct. App. 1990), adopted on transfer, 580
N.E.2d 664 (Ind. 1991).
[14] Yates maintains that the evidence did not support giving the sudden emergency
instruction,2 and we agree. Moreover, we find that the erroneous giving of the
instruction was prejudicial to Yates.
No Sudden Emergency
[15] In determining whether an instruction on sudden emergency is appropriate, the
court must first determine exactly what the sudden emergency was. Collins v.
Rambo, 831 N.E.2d 241, 246 (Ind. Ct. App. 2005). Hites’s sudden emergency
defense is based entirely upon her theory that she suddenly came upon black ice
that was not visible, and that driving on the black ice caused her to lose control
of her vehicle. However, the record is completely devoid of evidence that
Hites’s vehicle drove over black ice. Hites herself never testified that she drove
over black ice. Rather, she testified that the roads were not icy that day and
that she never saw any ice. And when she was asked by her lawyer whether she
even experienced the sensation of hitting a patch of ice, she replied only: “I
2
Yates does not dispute that the sudden emergency instruction correctly stated the law, nor does he contend
the instruction was covered by other instructions. Kimbrough, 55 N.E.3d at 339.
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remember down – all the way up and to that point from my home until the
point of the accident. And not having an issue. And then all of sudden my
rear-end goes left, so.” Tr. Vol. IV at 48.
[16] The only evidence regarding the existence of black ice is Trooper Leatherman’s
testimony that “there were quite long stretches of U.S. 20 that were covered in
ice that morning,” and the ice was “black” so that “you wouldn’t know it until
… your vehicle came upon it.” Tr. Vol. III at 89. However, Trooper
Leatherman testified that he did not witness the accident. Moreover, he never
testified that Hites did, in fact, drive over black ice, nor did he express a belief
that black ice is what caused the accident. Rather, he testified that, following
his investigation, he concluded that Hites had been driving at a speed too fast
for the existing weather conditions that day.
[17] While the trial court was required to interpret the evidence in the light most
favorable to Hites when deciding whether to give her requested instruction on
sudden emergency, Frito-Lay, Inc. v. Cloud, 569 N.E.2d 983, 987 (Ind. Ct. App.
1991), there simply was no evidence supporting the existence of a sudden
emergency in this case.3 Rather, Hites’s contention that black ice created a
sudden emergency is pure speculation. Cf. Compton, 561 N.E.2d 803, 807-08
3
Moreover, as we noted in Collins, a sudden emergency cannot exist for a defendant motorist who did not
perceive the emergency until after the collision. 831 N.E.2d at 246; see also Taylor v. Todd, 439 N.E.2d 190,
193 (Ind. Ct. App. 1982) (citing Baker v. Mason, 242 N.E.2d 513, 515 (Ind. 1968)) (“Without the perception of
sudden danger, there is no impairment of judgment and no need for the sudden emergency instruction.”).
The evidence established that Hites was not aware of the existence of black ice prior to the collision.
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(discussing cases where evidence of a sudden emergency existed). Therefore,
the trial court abused its discretion when it gave the sudden emergency jury
instruction.
Prejudicial Error
[18] The giving of an erroneous instruction on sudden emergency does not
necessarily constitute reversible error. Baker v. Mason, 242 N.E.2d 513, 516
(Ind. 1968). Rather, as our Supreme Court has most recently stated, such an
error is reversible only where the party seeking a new trial shows a reasonable
probability that his or her substantial rights have been adversely affected. Penn
Harris Madison School Corp. v. Howard, 861 N.E.2d 1190, 1195 (Ind. 2007); see
also Kimbrough, 55 N.E.3d at 339. And “where an instruction presents a correct
statement of law, but no evidence supports it, the objecting party is generally
unharmed by the instruction.” Id. at 1197 (citing Baker, 242 N.E.2d at 515).
However, as we noted in Simmons v. Erie Ins. Exchange, 891 N.E.2d 1059, 1070-
73 (Ind. Ct. App. 2008), the Supreme Court has also held that “[a]n erroneous
instruction merits reversal if it could have formed the basis for the jury’s
verdict.” Id. at 1071 (quoting Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749
N.E.2d 492, 495 (Ind. 2001)). As in Simmons, “we need not resolve the conflict
as to the proper standard under which we analyze whether an improper
instruction necessitates reversal, as we conclude that the giving of the
instruction in this case is prejudicial and requires reversal under any of the
standards identified above.” 891 N.E.2d at 1072.
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[19] This court has found prejudice from the erroneous giving of sudden emergency
instructions in several cases. See, e.g., Collins, 831 N.E.2d at 244-45; Lovings v.
Cleary, 799 N.E.2d 76, 78-79 (Ind. Ct. App. 2004), trans. denied. However, in
those cases, the sudden emergency instruction read, in relevant part, as follows:
In this case, if you find from the evidence that the defendant was
confronted with a sudden emergency in the sliding of the vehicle
and that the defendant then pursued a course of action that an
ordinarily prudent person would have pursued when confronted
with the same or similar emergency, then you may not assess
negligence to the defendant.
Lovings, 799 N.E.2d at 78. In both cases, we held that instruction to be
prejudicial to the substantial rights of the plaintiff because it precluded the jury
from assessing fault to the defendant regardless of his/her possible negligence
leading up to the alleged emergency, and it did not inform the jury that the
defendant had the burden of proving a sudden emergency. Collins, 831 N.E.2d
at 250; Lovings, 799 N.E.2d at 79.
[20] Unlike the instructions in Collins and Lovings, the instruction in the instant case,
which was the pattern jury instruction on sudden emergency, 4 did require that
4
Ind. Model Civ. Jury Inst. 931 states:
[Plaintiff][Defendant] claims [he][she] was not at fault because [he][she] acted with reasonable care in an
emergency situation. [Plaintiff][Defendant] was not at fault if [he][she] proves the following by the greater
weight of the evidence:
(1) [he][she] was faced with a sudden emergency;
(2) [he][she] did not cause the emergency;
(3) [he][she] did not have enough time to consider [his][her] options; and
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the jury make a determination as to whether or not Hites’s negligent action
caused the alleged emergency. Indiana courts have found that similarly-worded
sudden emergency instructions that were erroneously given did not affect the
plaintiff’s substantial rights. E.g., Baker, 242 N.E.2d at 515-16 (holding that a
similarly-worded, erroneously-given instruction was not prejudicial because it
required the jury to either find the instruction inapplicable if it was not
supported by any evidence, or, if applicable, simply apply the normal
negligence standard to an emergency situation); 5 Taylor v. Todd, 439 N.E.2d
190, 193 (Ind. Ct. App. 1992) (reaching the same conclusion regarding a
similarly-worded sudden emergency instruction). Thus, an erroneously given
but properly worded sudden emergency instruction “has rarely been considered
reversible error” in the absence of other, additional errors.6 Taylor, 439 N.E.2d
(4) [he][she] acted as a reasonably careful person would act when facing a similar emergency, even if a
different course of action might later seem to have been a better choice.
5
Given the overlap between a sudden emergency instruction and standard negligence instructions, it is
difficult to ascertain the usefulness and necessity of the sudden emergency instruction. We note that,
although our Supreme Court has so far declined to express an opinion regarding the desirability of the
instruction, Willis, 839 N.E.2d at 1186 n.4, other states have abolished the instruction on grounds that may
be applicable here. See, e.g., Bedor v. Johnson, 292 P.3d 924, 928-30 (Colo. 2013) (abolishing the instruction
due to its minimal utility and potential to mislead the jury). We believe that Indiana’s pattern sudden
emergency instruction, while an accurate statement of the law that requires the jury to consider the
defendant’s actions leading up to the alleged emergency, nevertheless suffers from the potential to mislead the
jury into applying a reduced standard of care and/or unduly focusing its attention on the defendant’s actions
during and after the emergency rather than on the totality of the circumstances. Id. And we believe that the
sudden emergency instruction is unnecessary as the “rule requiring reasonable care is sufficient to take into
consideration the excitement and confusion which normally accompany the emergency situation.” Knapp v.
Stanford, 392 So. 2d 196, 199 (Miss. 1980) (citation and quotation omitted). However, pursuant to the
doctrine of stare decisis, the sudden emergency doctrine is still applicable in Indiana. See Willis, 839 N.E.2d at
1186; Compton, 561 N.E.2d at 807.
6
See, e.g., Estate of Dyer v. Doyle, 870 N.E.2d 573, 584 (Ind. Ct. App. 2007) (holding giving of sudden
emergency instruction reversible error where trial court also erroneously allowed evidence of “faked left
syndrome” upon which alleged emergency was based), trans. denied.
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at 194; see also Penn Harris, 861 N.E.2d at 1197 (citing Baker, 242 N.E.2d at 515)
(emphasis added) (“[W]here an instruction presents a correct statement of law,
but no evidence supports it, the objecting party is generally unharmed by the
instruction.”).
[21] Here, as in Baker and Taylor, the erroneously-given sudden emergency
instruction, together with the instruction on negligence, would not have
precluded the jury from considering whether Hites’s actions leading up to the
alleged emergency were negligent and caused the alleged emergency; therefore,
the giving of the instruction, alone, would not have been prejudicial to Yates.
However, unlike in Baker and Taylor, the record here discloses that, in closing
arguments, Hites’s lawyer extensively argued the application of the sudden
emergency doctrine to justify Hites’s presence in Yates’s traffic lane and thereby
avoid liability. Tr. Vol. IV at 148-166. Therefore, even though the jury should
have found the sudden emergency instruction inapplicable due to a lack of
evidence to support it and therefore disregarded that instruction, Baker, 242
N.E.2d at 515, it is much more likely that the jury did improperly consider and
rely upon the sudden emergency instruction in reaching its verdict, thereby
causing prejudice to Yates. See Buhring v. Tavoletti, 905 N.E.2d 1059, 1068 (Ind.
Ct. App. 2009) (holding that an erroneously-given instruction was prejudicial
error under either the Penn Harris or Fleetwood Enters. standards because “the
matters discussed in the instructions at issue were emphasized to the jury, and
the likelihood that the matters were discussed and impacted the jury’s verdict is
significant.”).
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Conclusion
[22] Because there was no evidence of the existence of a sudden emergency, the trial
court erred in giving the sudden emergency instruction. Moreover, because
Hites’s closing argument put so much emphasis on the sudden emergency
doctrine, it is likely that the jury improperly considered and relied upon the
sudden emergency instruction in reaching its verdict for Hites. Therefore, we
reverse and remand for a new trial. See, e.g., Collins, 831 N.E.2d at 250.
[23] Reversed and remanded for a new trial.
Crone, J., and Brown, J., concur.
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