Achterberch v. Clark, No. 45A03-0603-CV-137 (Ind. App. 12/12/2006)
| Decision Date | 12 December 2006 |
| Docket Number | No. 45A03-0603-CV-137,45A03-0603-CV-137 |
| Parties | ROBERT ACHTERBERCH, Appellant-Plaintiff, v. JANICE CLARK, Appellee-Defendant. |
| Court | Indiana Appellate Court |
APPEAL FROM THE LAKE SUPERIOR COURT, The Honorable John R. Pera, Judge, Cause No. 45D10-0408-CT-169.
JEFFERY OLIVEIRA, MATTHEW D. LATULIP, Schererville, Indiana, ATTORNEYS FOR APPELLANT.
HAWK P.C. KAUTZ, Merrillville, Indiana, ATTORNEY FOR APPELLEE.
Robert Achterberch, the plaintiff below, appeals following a jury trial in which the jury returned a verdict in favor of Janice Clark, the defendant below, thereby denying him damages for personal injuries he sustained when Clark's car struck him. Achterberch raises two issues on appeal, but we find the following issue dispositive: whether the trial court properly instructed the jury on the doctrine of sudden emergency.1 Concluding that the evidence does not support this instruction, and that the error was not harmless, we reverse.
On the evening of May 2, 2004, Achterberch was working for a company responsible for towing motor vehicles that became disabled within the construction areas of Interstate 80/94 in Lake County, Indiana. Achterberch and his supervisor were both parked in a cut-off area that connected the interstate to 177th Street, which runs parallel to the interstate. 177th Street is a residential street, and has trees, bushes, and other foliage on both sides of it. Around 7:30 p.m., Achterberch left his vehicle to use the bathroom at a nearby building on the opposite side of 177th Street. It was still light outside, and Achterberch was wearing a reflective vest. When returning to his vehicle, Achterberch approached 177th Street, looked to the left and the right, and saw no cars approaching. He then entered the street and again looked to the left, this time seeing Clark's car roughly two feet away from him. Achterberch was hit by the passenger's side of Clark's car, and sustained injuries.
Clark testified that she was driving approximately twenty-five to thirty miles per hour, but another witness's testimony indicated Clark might have been going up to fifty-five miles per hour. Clark testified that she did not see Achterberch before the accident, but that a "split-second" before the accident, "something caught [her] on the right of [her] eye and [she] instinctively just went left." Transcript at 292.
Achterberch filed suit, alleging that Clark's negligence caused the accident. After the jury heard the evidence, Clark requested a jury instruction on the "sudden emergency" doctrine.2 The trial court granted the request, over Achterberch's objection, and read the following instruction to the jury:
When a person is confronted with a sudden emergency not of the person's own making, without sufficient time to determine with certainty the best course to pursue, that person is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. Accordingly, if the person exercises such care as an ordinarily prudent person would exercise when confronted with a sudden emergency, he is not negligent.
In this case, if you find from the evidence that the Defendant was confronted with a sudden emergency 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.
The jury returned a verdict finding Achterberch sixty-eight percent at fault and Clark thirty-two percent at fault. Under Indiana's comparative fault statute,3 Achterberch took nothing by way of his complaint because he was found more at fault than Clark. Achterberch now appeals.
We review the trial court's decision to give an instruction for an abuse of discretion. Lovings v. Clary, 799 N.E.2d 76, 78 (Ind. Ct. App. 2003), trans. denied. A party has the right to have the jury hear an instruction on that party's theory of the claim or defense. Collins v. Rambo, 831 N.E.2d 241, 245 (Ind. Ct. App. 2005). The trial court should give a proposed instruction if it is: (1) a correct statement of the law; (2) applicable to the evidence introduced at trial; and (3) relevant to the issues the jury must decide in reaching its verdict. Lovings, 799 N.E.2d at 78. Even if we find that the trial court abused its discretion in giving an instruction, we will not reverse if we determine that the error was harmless. Lashbrooks v. Schultz, 793 N.E.2d 1211, 1214 (Ind. Ct. App. 2003), cert. dismissed. An erroneously given instruction will be considered harmless unless it affects the substantial rights of the party objecting to the instruction. Lovings, 799 N.E.2d at 79. When making this determination, we will not view the improper instruction in isolation, but will look at the instructions as a whole. See Aldana v. Sch. of City of East Chicago, 769 N.E.2d 1201, 1211 (Ind. Ct. App. 2002), trans. denied.
Achterberch argues that the trial court erred in giving the instruction because the evidence did not support the instruction. We agree.
The doctrine of sudden emergency recognizes that a person faced with sudden and unexpected situations in which he or she must act immediately "is not expected to exercise the judgment of one acting under normal circumstances." Willis, 839 N.E.2d at 1184. When confronted with a sudden emergency, one has "'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.'" Id. (quoting W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 33 at 196 (5th ed. 1984)). The doctrine "does not excuse fault, but rather defines the conduct to be expected of a prudent person in an emergency situation." City of Terre Haute v. Simpson, 746 N.E.2d 359, 367 (Ind. Ct. App. 2001), trans. denied.
In order to be entitled to an instruction on sudden emergency, a party must demonstrate three conditions. First, the party's own negligence must not have created or brought about the emergency. Willis, 839 N.E.2d at 1184. Second, the imminence of the emergency must leave the party no time for deliberation. Id. Third, the party's apprehension of the emergency must itself be reasonable. Id. at 1184-85.
Achterberch argues, "Clark failed entirely to apprehend the danger caused by `something' in the roadway she caught in the corner of her eye." Appellant's Brief at 20. We agree, and hold that sufficient evidence does not exist to satisfy the second necessary condition. The requirement that the defendant be left with no time for deliberation, "of course, includes the necessity of the actor perceiving the emergency." Collins, 831 N.E.2d at 246 (quoting Lovely v. Keele, 166 Ind. App. 106, 109, 333 N.E.2d 866, 868 (1975)). The second prong of the test also corresponds to the rationale of the sudden emergency doctrine that "recognizes that the sudden emergency robs the actor of the time to thoughtfully reflect or deliberate among various choices." Id. at 248 (emphasis in original). If the actor faced no choice or had no alternatives, the rationale for the sudden emergency disappears, and an instruction should not be given. Id.; see Lashbrooks, 793 N.E.2d at 1213-14 ().
In Collins, the defendant was driving behind the plaintiff, who suddenly stopped after a third vehicle cut in front of the plaintiff. The defendant had not seen the third vehicle, but saw only the plaintiff's vehicle come to an abrupt stop. The defendant applied her breaks, but was unable to stop before hitting the plaintiff's vehicle. We held that the sudden emergency doctrine did not apply because the defendant "did not make a `choice,' among several options, that in hindsight was not as prudent as a different choice," citing the lack of evidence that the defendant could have done something else to avoid the accident had she had more time to consider. Collins, 831 N.E.2d at 248. Instead, "[t]he short distance between [the defendant's] car and [the plaintiff's car] as well as her speed foreclosed any other option besides reflexively slamming on the brakes." Id.
Here, Clark testified that she did not see Achterberch at all before the accident, and then that she saw something "in the corner of [her] eye," a "split-second" before the impact and "instinctively just went left." Tr. at 292. As in Collins, there was no evidence introduced that, after Clark saw this "something," she should or could have pursued any other course that would have avoided the accident. Indeed, the evidence tends to indicate that Clark was not aware of the emergency at all, made no real choice, and jerked her car to the left based on pure instinct. While practically every accident involves some sort of emergency, the doctrine of sudden emergency applies only in certain situations; this case does not involve such a situation. See Lashbrooks, 793 N.E.2d at 1214.
The error in giving the instruction becomes even more apparent considering the theory of the case. Although a party is entitled to have the judge instruct the jury on the party's theory of the case, Collins, 831 N.E.2d at 245, the sudden emergency doctrine is relevant to neither Achterberch's theory of Clark's fault nor Clark's defense. "The doctrine of sudden emergency deals with potentially negligent conduct of an actor after an emergency arose." Frito-Lay v. Cloud, 569 N.E.2d 983, 987 (Ind. Ct. App. 1991) (emphasis added). Here, Achterberch does not argue that Clark was negligent after the emergency arose when Clark saw Achterberch in the road. Instead,...
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