Bishop v. Parks
| Decision Date | 23 October 2015 |
| Docket Number | No. 39A05–1411–CT–533.,39A05–1411–CT–533. |
| Citation | 41 N.E.3d 309 (Table) |
| Parties | Virginia L. BISHOP, Appellant–Plaintiff, v. Dennis PARKS d/b/a Dennis Parks & Son, Appellee–Defendant. |
| Court | Indiana Appellate Court |
Roger L. Pardieck, Karen M. Davis, The Pardieck Law Firm, A Professional Corporation, Seymour, IN, Attorneys for Appellant.
Scott L. Tyler, Eric T. Eberwine, Waters, Tyler, Hofmann & Scott, LLC, New Albany, IN, Attorneys for Appellee.
CRONE
, Judge.
[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.
[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 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 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 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.
[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”). Plaintiffs Ex. 36; Exhibit Vol. IX.
[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 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 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....
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