Willis v. Westerfield

• Decision Date: 05 January 2006
• Docket Number: No. 49S02-0512-CV-692.,49S02-0512-CV-692.
• Citation: 839 N.E.2d 1179
• Parties: Ann WILLIS and Jeff Willis, Appellants (Plaintiffs below), v. Christopher WESTERFIELD, Appellee (Defendant below).
• Court: Indiana Supreme Court

839 N.E.2d 1179

Ann WILLIS and Jeff Willis, Appellants (Plaintiffs below), v. Christopher WESTERFIELD, Appellee (Defendant below).

No. 49S02-0512-CV-692.

Supreme Court of Indiana.

January 5, 2006.

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Robert E. Lehman, Indianapolis, Jeffrey A. Cooke, Lafayette, for Appellants.

Thomas D. Collignon, Indianapolis, for Appellee.

BOEHM, Justice.

We hold that the common law sudden emergency doctrine is not an affirmative defense within the meaning of Indiana Trial Rule 8(C) that requires affirmative defenses to be pleaded in a defendant's answer. We also hold that in cases where the defendant seeks a failure to mitigate damages instruction based on a plaintiff's failure to follow a treating doctor's recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis.

Factual and Procedural Background

On May 8, 1996, Christopher Westerfield rear-ended Ann Willis' van as it was stopped at a red light. Westerfield told the officer taking the accident report that he was unable to stop in time to avoid striking Willis' vehicle. Two and one-half years after the collision, Westerfield testified in a deposition that Ann Willis suddenly and without warning changed lanes and applied her brakes at the intersection and that he was unable to stop his vehicle before it struck Willis' vehicle because of wet pavement and Willis' quick lane change.

In December 1997, Ann and Jeff Willis filed their complaint for damages against Westerfield. Westerfield initially filed an answer in which he pleaded contributory negligence as an affirmative defense. He later amended his answer to replace his contributory negligence defense with a request for allocation of fault pursuant to Indiana's Comparative Fault Act. Neither the answer nor the amended answer mentioned the sudden emergency doctrine.

At trial, the court admitted the entire video-taped deposition of Ann Willis's treating physician, Dr. Robert K. Silbert, after denying Willis' motion to strike the portions of Westerfield's cross-examination of Dr. Silbert that referred to Ann's pre-existing conditions, subsequent conditions, or conditions unrelated to her collision injuries. On direct-examination, Dr. Silbert's deposition included his opinion that Ann did nothing after the collision to aggravate or worsen her injuries. On cross-examination, Dr. Silbert testified that Ann had failed to pursue recommended physical therapy and "in that particular condition she didn't help herself." Westerfield relied on his cross-examination of Dr. Silbert and did not call his own medical expert.

At the close of evidence, Westerfield tendered jury instructions on the sudden emergency doctrine, the affirmative defense of failure to mitigate damages, and allocation of fault under Indiana's Comparative Fault Act. The Willises objected to the sudden emergency instruction on the ground that Westerfield had waived that defense by failing to raise it in his responsive pleadings. The trial court overruled the objection and gave all three instructions.

Following a three day trial, the jury returned a verdict in favor of the Willises, awarding them $5,000 in compensatory damages without regard to fault. Based on a finding that Ann was fifty percent at fault, the $5,000 verdict was reduced to $2,500 in accordance with Indiana's Comparative Fault Act.

The Willises appealed seeking a new trial as to damages only. They raised four grounds. First, they asserted the trial court erred in instructing the jury on the sudden emergency doctrine because Westerfield failed to raise the doctrine in his pleadings. Second, they asserted the trial court erred in instructing the jury on failure to mitigate damages because Westerfield failed to present medical expert testimony supporting that defense. Third, they asserted the trial court erred in denying their motion to strike portions of Westerfield's cross-examination of Dr. Silbert. Fourth, they alleged the trial court erred in giving an instruction on allocation of fault under Indiana's Comparative Fault Act. They contended that Westerfield's amended answer removing contributory negligence as a defense withdrew contributory negligence as an issue in the case and thereby eliminated any issue of fault by Willis.

The Court of Appeals initially affirmed the trial court. Willis v. Westerfield, 803 N.E.2d 1147, 1149 (Ind.Ct.App.2004). It held that the trial court had erred in instructing on the sudden emergency doctrine because sudden emergency is an affirmative defense that Westerfield had waived by failing to include it in his pleadings. Id. at 1153. However, the Court of Appeals found that the instruction had no effect on the verdict and therefore the error was harmless.¹ Additionally, the Court of Appeals found that expert testimony was not required to establish failure to mitigate damages and therefore the trial court did not err by instructing the jury on that defense even though Westerfield had presented no expert testimony supporting it. Id. at 1155. The Court of Appeals further held that the Willises had waived any claim based on failure to redact portions of Dr. Silbert's deposition by failing to include the deposition in the record. Id. Finally, the Court of Appeals found no error in giving an instruction on allocation of fault because Westerfield had not conceded complete responsibility for the collision by withdrawing contributory negligence. Id. at 1151.

On rehearing, the Court of Appeals reconsidered its view of the need for expert medical opinion testimony on the defense of failure to mitigate damages and held that an instruction on that issue was error. Willis v. Westerfield, 817 N.E.2d 672, 673 (Ind.Ct.App.2004). The Court of Appeals vacated the trial court's damages award and remanded for a new trial on the issue of damages only. Id. The Court of Appeals affirmed its initial decision in all other respects, and also provided additional guidance on the scope of cross-examination of the Willises' expert. Id. at 673-75.

I. 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.² 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. See W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 33 at 196 (5th ed.1984). 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." Id. 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. Sullivan v. Fairmont Homes, Inc., 543 N.E.2d 1130, 1137 (Ind.Ct.App.1989), trans. denied.

Indiana Trial Rule 8(C) does not specifically refer to sudden emergency. It provides that "A responsive pleading shall set forth affirmatively and carry the burden of proving: [list of defenses] and any other matter constituting an avoidance, matter of abatement, or affirmative defense." Pursuant to this Rule, a party seeking the benefit of an affirmative defense must raise and specifically plead that defense or it is waived. Freedom Express, Inc. v. Merch. Warehouse Co., Inc., 647 N.E.2d 648, 651 (Ind.Ct.App.1995); City of Hammond v. Northern Ind. Pub. Serv. Co., 506 N.E.2d 49, 51 (Ind.Ct.App.1987), trans. denied; Piskorowski v. Shell Oil Co., 403 N.E.2d 838, 847 (Ind.Ct.App.1980), trans. denied. The list of affirmative defenses contained in the Rule is not exhaustive. Paint Shuttle, Inc. v. Continental Cas. Co., 733 N.E.2d 513, 524 (Ind.Ct.App.2000), trans. denied. The Court of Appeals held that the trial court erred in giving a sudden emergency instruction. It reached this result based on its view that sudden emergency is an affirmative defense within the meaning of Indiana Trial Rule 8(C), and therefore was waived when not raised in Westerfield's responsive pleadings. Willis, 803 N.E.2d at 1153.

Some Indiana decisions have described the sudden emergency doctrine as an affirmative defense.³ However, no case has found this defense waived pursuant to Trial Rule 8(C) for failure to plead it. The Court of Appeals observed that these references to sudden emergency as an affirmative defense may have been the result of "muddied language," and noted that no case addressed whether the proponent must include sudden emergency in a responsive pleading or risk waiving it. Willis, 803 N.E.2d at 1152-53. Whether a defense is affirmative "depends upon whether it controverts an element of a plaintiff's prima facie case or raises matters outside the scope of the prima facie case." Paint Shuttle, 733 N.E.2d at 524 (citing Molargik v. W. Enter., Inc., 605 N.E.2d 1197, 1199 (Ind.Ct.App.1993)). An affirmative defense is a defense "upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but...