Clay City Consol. School Corp. v. Timberman

• Citation: 896 N.E.2d 1229
• Decision Date: 02 December 2008
• Docket Number: No. 11A04-0802-CV-96.,11A04-0802-CV-96.
• Parties: CLAY CITY CONSOLIDATED SCHOOL CORPORATION, Appellant-Defendant, v. Ronna TIMBERMAN and John Pipes II, Appellees-Plaintiffs.
• Court: Court of Appeals of Indiana

896 N.E.2d 1229

CLAY CITY CONSOLIDATED SCHOOL CORPORATION, Appellant-Defendant, v. Ronna TIMBERMAN and John Pipes II, Appellees-Plaintiffs.

No. 11A04-0802-CV-96.

Court of Appeals of Indiana.

December 2, 2008.

Shannon L. Robinson, Kelley, Belcher & Brown, Bloomington, IN, Attorney for Appellant.

Richard A. Waples, Waples & Hanger, Indianapolis, Keith L. Johnson, Johnson Law Office, Terre Haute, IN, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Clay City Consolidated School Corporation (Clay City Schools), appeals the trial court's denial of its motion to correct error and Order on remittitur awarding Appellees-Plaintiffs, Ronna Timberman (Mother) and John Pipes II (Father), $300,000 after a jury verdict.

We reverse and remand.

ISSUES

Clay City Schools raises seven issues for our review, one of which we find dispositive and restate as: (1) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 20 that a thirteen-year-old boy is presumed to be incapable of contributory negligence.

Because we conclude that the trial court committed reversible error by issuing Final Instruction No. 20, we also consider the following issues to forestall unnecessary disputes upon remand and duplicative issues for another appeal, although Mother and Father correctly point out that Clay City Schools would have waived appellate review of several of these issues:

(2) Whether Mother and Father's possible negligence can be considered for purposes of contributory negligence;

(3) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 9 that Mother and Father had not released Clay City Schools from its negligence;

(4) Whether the trial court abused its discretion by instructing the jury in Final Instruction No. 16 that Clay City Schools was required to anticipate and guard against conduct of children by which the child may harm himself or others;

(5) Whether the trial court abused its discretion by instructing the jury that it may find for the defendant if it found any negligence on the part of Kodi Pipes which proximately contributed to his injuries in Final Instruction No. 24;

(6) Whether the trial court abused its discretion when instructing the jury on proximate cause in Final Instruction Nos. 19, 21, 25.¹

FACTS AND PROCEDURAL HISTORY

On Monday, November 17, 2003, thirteen-year-old Kodi Pipes (Kodi) blacked out and fell down during the beginning of his eighth grade basketball team practice at Clay Jr. High School. Kodi stood back up and walked to the sideline. The eighth grade basketball coach, Mike Ames (Coach Ames), saw Kodi bent over with his hands on his legs and approached him to ask what was wrong. Kodi complained of dizziness, and Coach Ames asked the seventh grade basketball coach, Rodney Smith (Coach Smith), to check on Kodi. Because Coach Smith was aware that Kodi had asthma, Coach Smith asked Kodi if he had used his inhaler. Kodi responded that he had, but that he did not feel that his asthma was the cause of his dizziness. Kodi further advised Coach Smith that he had not eaten that day. When Coach Smith told Coach Ames that Kodi had not eaten that day, Coach Ames prohibited Kodi from participating in practice, but allowed him to shoot free throws.

After practice, Coach Ames waited with the players until they were all picked up as usual. Coach Ames went to the car with Kodi and spoke with Mother and her then-boyfriend, Aaron Erbert (Erbert). Coach Ames told Mother that Kodi had felt dizzy during practice and stated that he had not eaten. Kodi agreed and Mother said they would make sure he got something to eat.

According to Mother and Erbert, Mother told Coach Ames that she did not want Kodi participating in practice until after he was checked out by a doctor. They further testified that Kodi complained about getting behind, and Mother modified her instruction to Coach Ames by stating that Kodi could walk through the plays but was not to participate in running or strenuous activity. They both stated that Coach Ames agreed to this restriction. Coach Ames testified that no conversation took place on restricting Kodi's level of activity at practice.

Kodi went home, ate some pizza, and then did his homework. He appeared to be fine. On Tuesday, Mother made phone calls to Kodi's general practitioner and a neurologist in Terre Haute, Indiana. Kodi attended school Tuesday and Wednesday without incident, and Mother made no further communications with the school nurse or Coach Ames regarding Kodi's blackout at practice. On Wednesday, Kodi attended two after-school meetings and then went with his grandfather, Ronald Timberman (Grandfather), to A & W to get something to eat. Grandfather drove Kodi home and then back to school for basketball practice at 7:00 p.m. Grandfather testified that he asked Kodi if he knew the plan for practice, referring to his restriction, and that Kodi replied that he did. Kodi had not seen a doctor prior to basketball practice on Wednesday night.

Kodi showed up for basketball practice, and Coach Ames asked him if he had eaten. Kodi responded that he had. Coach Ames assumed that Kodi was okay to practice and let him participate without restrictions. Towards the end of practice, Coach Ames had the players perform a running drill. Early in the drill, Kodi collapsed. Coach Ames went over to Kodi and determined he was not breathing and did not have a pulse. He performed CPR on Kodi alone until Ron Travis and Doug Gurkey arrived to help. The three men kept performing CPR until EMTs arrived; however, efforts to revive Kodi were unsuccessful. It was later determined that Kodi had died from a malignant type of heart rhythm abnormality known as ventricular fibrillation.

On August 25, 2006, Mother and Father filed a Complaint alleging that Clay City Schools was liable for Kodi's death under Indiana's Child Wrongful Death Statute, Ind.Code § 34-23-2-1. On September 18, 2006, Clay City Schools filed its answers and asserted that it was not the proximate cause of Kodi's death. On December 10 through 13, 2007, the case was tried to a jury. On December 13, 2007, the jury returned a verdict in favor of Mother and Father, awarding Mother $250,000 and awarding Father $175,000. That same day, the trial court entered an Order and Judgment on the verdict.

On January 10, 2008, Clay City Schools filed a motion for remittitur, which the trial court granted on February 8, 2008. The trial court ordered the award to Mother to be reduced to $176,470.57, and the award to Father to be reduced to $123,529.43.² That same day, the trial court denied Clay City Schools' motion to correct errors.

Clay City Schools now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Final Instruction No. 20

Clay City Schools first argues that the trial court erred by instructing the jury that Indiana law contains a rebuttable presumption that children between the ages of seven and fourteen years are incapable of committing contributory negligence. Specifically, the trial court's final instruction number twenty instructed the jury that:

In deciding whether Kodi Pipes was contributorily negligent, you should know that Indiana law recognizes a rebuttable presumption that children from the age of 7 to 14 years of age are rebuttably presumed to be incapable of [contributory] negligence.

A "rebuttable presumption" means that if you find Clay School Corporation has not presented evidence to show that Kodi Pipes' own negligence contributed to his death, you should presume that Kodi Pipes was not contributorily negligent. If, on the other hand, you find that Clay School Corporation has presented evidence to show that Kodi Pipes was contributorily negligent then you should weigh that evidence against both the presumption that children between 7 and 14 are rebuttally [sic] presumed to be incapable of contributory negligence, through their own negligence, to their injuries and any evidence that Kodi Pipes' negligence did not contribute to his death in deciding the issue of whether Kodi Pipes was contributorily negligent.

(Appellant's App. p. 31).³

Instruction of the jury is left to the sound judgment of the trial court, and our review of a trial court's decision in this regard is highly deferential: we will not disturb the court's judgment absent an abuse of discretion. Kostidis v. Gen. Cinema Corp. of Indiana, 754 N.E.2d 563, 570 (Ind.Ct.App.2001). In reviewing a trial court's decision to give or refuse a tendered instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by the evidence in the record, and (3) is covered in substance by other instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind.2002) reh'g denied. "The trial court has discretion in instructing the jury, and we will reverse on the last two issues only when the instructions amount to an abuse of discretion. When an instruction is challenged as an incorrect statement of the law, however, appellate review of the ruling is de novo." Id.

By giving Final Instruction No. 20, the trial court has reopened the proverbial can of worms addressed at length most recently by the Federal District Court for the Northern District of Indiana in Maynard v. Indiana Harbor Belt Railroad Co., 997 F.Supp. 1128 (N.D.Ind.1998). The Maynard court addressed whether Indiana has a presumption as to a seven-to-fourteen-year-old child's capacity to exercise care and discretion and came to the conclusion that the answer was unclear. Id. at 1132. The Maynard court's thorough analysis greatly aids our discussion here.

In Bottorff v. South Constuction Company, 184 Ind. 221, 110 N.E. 977 (1916), our supreme court considered the trial court's dismissal of a complaint alleging that a fourteen-year-old boy had taken blasting caps from a construction company's property and given them to a twelve-year-old...