Bowles v. Tatom
| Decision Date | 02 June 1988 |
| Docket Number | No. 47A01-8710-CV-240,47A01-8710-CV-240 |
| Parties | Doris J. BOWLES, Defendant-Appellant, v. William J. TATOM, Plaintiff-Appellee, City of Bedford, John Williams, Mayor, Herbert E. Nugent and Clydean Nugent, Defendants. |
| Court | Indiana Appellate Court |
James L. Whitlatch, Bunger, Robertson, Kelley & Steger, Bloomington, for defendant-appellant.
Darlene Steele McSoley, Steele, Steele & Steele, Bedford, for plaintiff-appellee.
Doris J. Bowles appeals from the Lawrence County Court's judgment in favor of William J. Tatom, and determination that she was 100% at fault in an automobile accident. We affirm in part and reverse in part and remand for further proceedings and a reassessment of fault percentage.
On the morning of June 14, 1986, William J. Tatom was proceeding north on "I" Street a one-way through street in Bedford, Indiana. At the same time Doris J. Bowles was proceeding west on Summit Lane toward the intersection with "I" Street. Bowles was traveling at a speed between ten to fifteen (10-15) miles per hour. Bowles testified she was driving slowly because she was unfamiliar with and had never driven in the area. Stop signs and one-way street signs were posted for Summit Lane at the intersection with "I" Street. However, dense foliage covered both the stop sign and the one-way street sign on the north side of Summit Lane, and blocked the signs from the vision of persons proceeding west on Summit Lane. Bowles failed to stop at the intersection with "I" Street and ran the stop sign. Tatom's truck was almost into the intersection when Bowles drove into his path. Tatom quickly applied his brakes, but was unable to avoid a collision. Bowles also was unable to avoid the collision, and testified she did not see Tatom's vehicle until she was in the middle of the intersection. Three members of the Bedford On January 19, 1987, Tatom filed a pro se notice of claim in the Small Claims Division of the Lawrence County Court against Bowles, the City of Bedford, and John Williams, the mayor of Bedford. On April 13, 1987, the city and the mayor filed an answer and named the adjacent property owners, Herbert E. Nugent and Clydean Nugent, as nonparties under the comparative fault statute, and requested a continuance. Thereafter, Tatom hired counsel, and on May 29, 1987, filed an Amended Notice of Claim which named the Nugents as additional defendants.
City Police were called to investigate the accident. After viewing the scene and interviewing the drivers and witnesses, Officer Dennis Wellman found Bowles at fault.
On July 27, 1987, a bench trial was held. Tatom testified as to the events of the accident and rested her case. Thereafter, the city, the mayor, and the Nugents moved to have the claims against them dismissed. At this point in the trial no defenses had been raised. The trial court determined no evidence was presented by Tatom to establish any liability in the city, mayor, or Nugents, and accordingly, dismissed the claims against them. Bowles did not object to the dismissal of the other defendants. After the other defendants were dismissed, Bowles' attorney cross-examined Tatom. Thereafter, Bowles testified, and evidence was introduced to demonstrate the scene of the accident. The evidence included pictures taken the day after the accident. The pictures illustrated clearly that the stop sign for the westbound traffic of Summit Lane was blocked from view. At the close of Bowles' testimony, the trial judge took the case under advisement. On July 30, 1987, the trial judge entered a judgment in favor of Tatom and found Bowles 100% at fault under the comparative fault statute and assessed damages accordingly. Bowles appeals the trial court's determination of fault and allocation of damages.
Bowles presents one (1) issue for review:
Whether the trial court erred in finding Bowles 100% at fault?
Bowles argues that the trial court erred by assessing any fault against her, and alternatively, by assessing 100% of the fault to her. Bowles argues first that the evidence established uncontradictorily that the stop sign for the westbound traffic of Summit Lane was obscured from sight and that as such she could not be at fault for the accident. This court disagrees. The evidence in this case does not lead unerringly to a conclusion that Bowles was not at fault. The evidence indicates that stop signs were posted for both the east and westbound traffic of Summit Lane. The evidence indicates also that the back side and shape of the eastbound stop sign was visible from the westbound lane. The evidence indicates further that Bowles failed to look both left and right before proceeding into the intersection, and failed to look left until she was in the middle of the intersection. Therefore, this court cannot say that the trial court acted contrary to law in finding Bowles at fault.
Bowles argues alternatively that even if the trial court found properly that she was at fault, the trial court erred by assessing 100% of the fault against her. This court agrees. In reviewing a trial court's allocation of fault in a bench trial this court applies the standard of review found in Indiana Rules of Procedure, Trial Rule 52(A). Accordingly, this court will not reverse the trial court's determination unless it is clearly erroneous. Trial Rule 52(A); Walters v. Dean (1986), Ind.App., 497 N.E.2d 247, 254. In reaching a decision under this standard, this court neither reweighs the evidence nor judges witness credibility. Walters, at 254. However, the trial court's decision will be found clearly erroneous if upon a review of all the evidence this court is left with a definite and firm conviction that an error has been made. Id.
Under Indiana's Comparative Fault Act, Indiana Code section 34-4-33-1 et seq., fault percentages shall be allocated to the claimant, the defendants, and any nonparties. Ind.Code Sec. 34-4-33-5; Walters, at 253. However, this court held in Walters, that fault percentage may not be allocated where the nonparty defense is not specifically pleaded. Id. Thus, before fault can be allocated to a nonparty a defendant must plead the empty chair defense, and point to a nonparty and place the claimant on notice. Id. The pleading rule found in Walters is designed to prevent the inequity that occurs when the defendant surprises the claimant by pointing to a nonparty at a late date. This rule does not apply to the allocation of fault between named parties to the lawsuit. A defendant does not have to point at another pleaded party to invoke the fault allocation process of the Comparative Fault Act.
The review of all the evidence in the present case leaves this court with a definite and firm conviction that the trial court erred by assessing 100% of the fault to Bowles. Although this court holds that the evidence of the hidden stop sign did not establish that Bowles was without fault, this evidence does establish that Bowles was not 100% at fault. The evidence indicates uncontradictorily that the hidden stop sign contributed substantially to the accident. Accordingly, the trial court should have assessed a percentage of the fault against the party or parties responsible for the stop sign and the obstruction. In the present case, the City, the Mayor, and the Nugents potentially were responsible for the stop sign and the obstruction. Although the City, the Mayor, and the Nugents were dismissed from the lawsuit, fault percentage could be allocated to them even though Bowles did not plead the empty chair defense. In the present case, the City, the Mayor, and the Nugents were parties up until...
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Bowles v. Tatom
...affirmed in part, reversed in part, and remanded for further proceedings including a reassessment of fault percentage. Bowles v. Tatom (1988), Ind.App., 523 N.E.2d 458. Vehicles operated by Tatom and Bowles collided in a Bedford, Indiana, intersection on June 14, 1986, when Bowles, unfamili......