Aldana v. School City of East Chicago

• Decision Date: 19 June 2002
• Docket Number: No. 45A05-0110-CV-440.,45A05-0110-CV-440.
• Citation: 769 N.E.2d 1201
• Parties: Leo ALDANA, b/n/f Janette Aldana, Jennie Bell, b/n/f Avis Bell, Jorge Castillo, Jr., b/n/f Jorge Castillo, Daphne Espinoza, b/n/f Daphne Zaragoza, Crystal Fuentes, b/n/f Veronica Olvera, Kassandra Pezel, b/n/f Josefina Pezel, Jeremiah Reed, b/n/f Pauline Reed, Joseph Silvas, b/n/f Patricia Silvas, and Josefina Pezel, Individually, Appellants-Plaintiffs, v. SCHOOL CITY OF EAST CHICAGO and Earl Person, Appellees-Defendants.
• Court: Indiana Appellate Court

769 N.E.2d 1201

Leo ALDANA, b/n/f Janette Aldana, Jennie Bell, b/n/f Avis Bell, Jorge Castillo, Jr., b/n/f Jorge Castillo, Daphne Espinoza, b/n/f Daphne Zaragoza, Crystal Fuentes, b/n/f Veronica Olvera, Kassandra Pezel, b/n/f Josefina Pezel, Jeremiah Reed, b/n/f Pauline Reed, Joseph Silvas, b/n/f Patricia Silvas, and Josefina Pezel, Individually, Appellants-Plaintiffs, v. SCHOOL CITY OF EAST CHICAGO and Earl Person, Appellees-Defendants.

No. 45A05-0110-CV-440.

Court of Appeals of Indiana.

June 19, 2002.

Sterrence M. Rubino, Steven J. Sersic, Kevin C. Smith, Rubino & Crosmer, Dyer, IN, Attorneys for Appellants.

Melanie D. Pennycuff, Bruce P. Clark & Associates, Munster, IN, Attorney for Appellees.

OPINION

BARNES, Judge.

Case Summary

Plaintiffs, who consist of nine schoolchildren and one adult, appeal the judgment entered following a jury verdict in favor of Defendants, School City of East Chicago ("the City") and Earl Person, in a personal injury negligence action. We reverse and remand.

Issues

The issues before us are:

I. whether the trial court properly refused to instruct the jury on the doctrine of res ipsa loquitur; and

II. whether the trial court erred by instructing the jury on the sudden emergency doctrine.

Facts

The facts most favorable to the verdict in this case are that on April 2, 1998, Person, a school bus driver for the City, agreed to transport a group of first graders and chaperones on a field trip. While traveling on the Lake/Porter County Line Road on the return trip, Person noticed that the right wheels of the bus had left the pavement and gone onto the dirt shoulder. As he tried to bring those wheels back onto the pavement, the bus unexpectedly "jumped" and fishtailed into the opposite lane of the road, causing oncoming traffic to stop. Person eventually brought the bus back under control. The bus then stopped at a convenience store several minutes later at the urging of the chaperones. Person denied that the bus ever went up on two wheels. A State Trooper testified that holes and ruts in the road might have been a contributing cause of the incident. There was conflicting evidence concerning the nature and extent of the physical and psychological injuries, if any, suffered by the bus passengers.

Plaintiffs, all of whom were passengers on the bus, sued Defendants, seeking damages for physical injuries, medical expenses, and emotional distress. At trial, Plaintiffs presented evidence that the fishtailing of the bus caused schoolchildren to be thrown from their seats twice onto the floor and/or into the walls, other seats, and even the ceiling of the bus. Additionally, several witnesses testified that the bus went up on two wheels, although there was conflicting testimony as to which side of the bus became airborne. When Person regained control of the bus, several children were left underneath the bus seats crying. After the bus stopped, some of the children were transported to an emergency room for examination. Several of the children and their parents testified to experiencing emotional trauma following this incident. The State Trooper who testified that holes and ruts in the road may have contributed to the incident also testified that the weather that day was clear and he knew of no mechanical defects on the bus. He also indicated that the road was dry and not dangerous, and that he did not believe the holes and ruts were such that they would have caused a prudent bus driver to lose control of the vehicle.

At the conclusion of the evidence, Plaintiffs requested the trial court to instruct the jury on the doctrine of res ipsa loquitur, claiming Person's negligence, and hence that of the City via respondeat superior, could be inferred under the facts of the case. The trial court declined to give the instruction. It also instructed the jury on the sudden emergency doctrine, as proffered by Defendants over Plaintiffs' objection. The jury returned a verdict in favor of Defendants, upon which the trial court entered judgment. Plaintiffs now appeal.

Analysis

I. Res Ipsa Loquitur

Plaintiffs first challenge the trial court's refusal to instruct the jury on the doctrine of res ipsa loquitur. We review a trial court's refusal to tender a requested instruction for an abuse of discretion. City of Terre Haute v. Simpson, 746 N.E.2d 359, 367 (Ind.Ct.App.2001), trans. denied. A trial court abuses its discretion by refusing a tendered instruction if: (1) the instruction correctly states the law; (2) the evidence supports the instruction; and (3) the substance of the charge is not covered by other instructions. Id. Additionally, refusal of a requested jury instruction is reversible error only if there is a reasonable probability that substantial rights of the complaining party have been adversely affected. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind.2001).

Plaintiffs' tendered res ipsa loquitur instruction stated:

In this case, if you find that:

First: The plaintiffs were damaged as a proximate result of the School City of East Chicago school bus being out of control Second: The school bus was under the exclusive control of the School City of East Chicago and its driver, Earl Person; and

Third: The school bus being out of control would not happen unless the defendant and/or its driver Earl Person were negligent.

Then you may infer the defendants were negligent and you may consider this inference with all the other evidence in the case in arriving at your verdict.

Appellant's Br. pp. 5-6. This instruction is derived from Indiana Pattern Civil Instruction 9.13 and Defendants do not suggest that it does not correctly state the theory of res ipsa loquitur. We then proceed to the second part of our analysis, namely whether the evidence in this case supported the giving of the instruction.

We have described the doctrine of res ipsa loquitur as:

a rule of evidence that allows a jury to draw an inference of negligence under certain factual circumstances. The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. Although negligence may not be inferred from the mere fact that an injury occurred, it may be inferred from the circumstances surrounding the injury.

The central question involved in the use of the res ipsa loquitur doctrine is whether the incident more probably resulted from the defendant's negligence rather than from some other cause. The doctrine may be applied when the plaintiff establishes: 1) that the injuring instrumentality was within the exclusive management and control of the defendant...; and, 2) the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. A plaintiff seeking to invoke the res ipsa loquitur doctrine may establish that the incident was more probably the result of negligence by relying on common sense and experience.

Deuitch v. Fleming, 746 N.E.2d 993, 999 (Ind.Ct.App.2001), trans. denied (quoting K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind.Ct.App.1990), trans. denied). When Plaintiffs tendered their instruction, Defendants argued and the trial court concluded that Plaintiffs could not submit their theory of res ipsa loquitur to the jury because "[t]he road, which was part of the instrumentality, was not within the control of the City of East Chicago or its school bus driver." Tr. p. 367. Although there was some evidence that holes or ruts in the road may have contributed to the incident at issue, we conclude the evidence, when viewed most favorably to Plaintiffs, required the trial court to give the tendered res ipsa loquitur instruction.

Under the doctrine of res ipsa loquitur, it is not necessary for a plaintiff to exclude every possibility other than the defendant's negligence as a cause for the plaintiff's injury. Gold v. Ishak, 720 N.E.2d 1175, 1182 (Ind.Ct.App.1999),trans. denied. All that is needed is evidence from which reasonable persons could say that on the whole it is more likely that there was negligence associated with the cause of an event than that there was not. Sharp v. LaBrec, Inc., 642 N.E.2d 990, 993 (Ind.Ct.App.1994),trans. denied. To prove the "exclusive control" requirement of res ipsa loquitur, the plaintiff is simply required to show either that a specific instrument caused the injury and that the defendant had control over that instrument or that any reasonably probable causes for the injury were under the control of the defendant. Slease v. Hughbanks, 684 N.E.2d 496, 499 (Ind.Ct.App. 1997). At a minimum, the plaintiff is required to point to an instrument in the control of the defendant that was a probable cause of his or her injury. See id. at 500.

This court previously stated:

When presented with a request for a res ipsa loquitur instruction, the trial court's duty is to determine whether the plaintiff produced evidence from which the jury could reasonably conclude the existence of the underlying elements of exclusive control and probability of negligence. This is a sufficiency question. There only need be evidence and reasonable inferences therefrom, which, when viewed in the light most favorable to the proponent, would support the [theory] contained in the instruction. If there is no such evidence, the instruction is properly refused. On the other hand, if there is evidence from which a jury could reasonably find the existence of the elements, then the conditional res ipsa loquitur instruction, which merely tells the jury that if they do find the existence of these elements then they may draw the inference of negligence, must be given.

Sharp, 642 N.E.2d at 993 (internal citations omitted). We further note that the quantum of evidence necessary for the giving of an instruction "is deliberately set at a relatively low level in order to assure the right of parties to have the trier of fact determine factual disputes thus preserving the constitutional rights...