Davidson v. Bailey

• Decision Date: 26 April 2005
• Docket Number: No. 48A05-0404-CV-195.,48A05-0404-CV-195.
• Citation: 826 N.E.2d 80
• Parties: David K. DAVIDSON, Jr., and Nancy Thornberry, Appellants-Defendants, v. Singe BAILEY, Appellee-Plaintiff.
• Court: Indiana Appellate Court

826 N.E.2d 80

David K. DAVIDSON, Jr., and Nancy Thornberry, Appellants-Defendants, v. Singe BAILEY, Appellee-Plaintiff.

No. 48A05-0404-CV-195.

Court of Appeals of Indiana.

April 26, 2005.

Patrick L. Miller, Lia R. Lukaart, Goodin Abernathy & Miller, LLP, Indianapolis, IN, Attorneys for Appellants.

Richard Walker, Anderson, IN, Arlene Rochlin, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

On March 5, 2004, after a four-day trial, a jury found David K. Davidson, Jr. and Nancy Thornberry (Appellants) negligent for damages sustained by Singe Bailey (Plaintiff) in a motor vehicle accident that occurred July 16, 1999, in Anderson, Indiana. The jury assessed compensatory and punitive damages against Appellants. On appeal, Appellants raise several issues for review that we consolidate and restate as:

1. Did the trial court abuse its discretion in the admission and exclusion of evidence regarding prior convictions for driving under the influence?

2. Was the evidence sufficient to support the judgment against Thornberry on the issues of negligent entrustment and punitive damages?

We affirm.¹

The facts most favorable to the judgment demonstrate that on the evening of July 16, 1999, Davidson drove to Thornberry's home at approximately 6:00 p.m. to meet her for a date. Davidson and Thornberry both had teenage daughters around the same age and, after dropping off their daughters at a local ice-skating rink, the couple drove to Abel's, a local bar, in Thornberry's car. Upon leaving Abel's, Thornberry allowed Davidson to drive her car. Near the intersection of Pendleton Avenue and West 20th Street, Davidson drove into the rear of Patricia Berry's truck, causing the truck to rear-end a vehicle in which Plaintiff was a passenger. Davidson's blood alcohol content (BAC) taken shortly after the accident was .248%, over twice the (then) statutory limit of .10%.² Officer John Branson, the first police officer to arrive at the scene, noted that Davidson had a strong odor of alcohol about him, slurred speech, bloodshot eyes, and was "very intoxicated." Transcript at 85. Later at the hospital, Branson observed Davidson exhibit poor balance and act "very belligerent," id., to the point that Branson charged Davidson with disorderly conduct. Davidson was also charged with public intoxication and operating a vehicle while intoxicated causing serious bodily injury.

Plaintiff filed a complaint against Davidson on April 16, 2001, with respect to the accident. On June 22, 2001, Plaintiff amended his complaint to add Berry and Thornberry as defendants. Plaintiff asserted theories of negligence and gross negligence against Davidson, negligent entrustment against Thornberry, and negligence against Berry.³ In their answer, Appellants asserted as an affirmative defense that Plaintiff failed to mitigate his damages and that his damages had been at least partially satisfied by payments from an admissible collateral source.

Before trial, Appellants filed a motion in limine seeking to exclude evidence of Davidson's prior and subsequent criminal convictions for driving under the influence (DUI convictions). Plaintiff also filed a motion in limine seeking to exclude evidence of his previous DUI convictions. After hearing argument, the trial court excluded evidence of Davidson's subsequent DUI convictions, but permitted introduction of Davidson's prior DUI convictions occurring on: (1) November 11, 1990; (2) August 7, 1991; (3) January 19, 1993; and (4) November 7, 1995. The trial court also excluded evidence of Plaintiff's previous DUI convictions.

On March 2, 2004, a jury trial commenced. At the close of Plaintiff's case, Berry successfully moved for judgment on the evidence arguing that Plaintiff had failed to establish any negligent act on her part.⁴ Thornberry also moved for judgment on the evidence on the negligent entrustment claim and, alternatively, on the issue of punitive damages. The trial court denied both motions.

During Appellants' case, Davidson's testimony was presented via videotaped deposition because Davidson was incarcerated at the time of trial. Davidson testified he had drank three mixed drinks at lunch the day of the accident, but that from approximately 6:00 p.m. until 9:30 p.m., the time of the accident, he had consumed only half a quart of beer. On cross-examination, evidence of Davidson's prior DUI convictions was presented to the jury. Thornberry testified she had formerly worked at a restaurant that served alcohol and had been trained to recognize indications that a person had drank too much, e.g., slurred speech, bloodshot eyes, and unsteady balance. Thornberry denied seeing any indication Davidson was intoxicated when she let him drive her car.

After Appellants' presentation of evidence, the jury returned a verdict in favor of Plaintiff. The jury allocated fault amongst the parties as follows: (1) Ten percent to Plaintiff; (2) eighty percent to Davidson; and (3) ten percent to Thornberry. Plaintiff's total compensatory damages, without regard to fault, were determined to be $40,000, and, after multiplication of the jury's fault allocation, the jury awarded compensatory damages of $32,000 against Davidson and $4,000 against Thornberry. The jury also entered punitive damages of $1,500 against Thornberry and $100,000 against Davidson.⁵

1.

Appellants contend that two evidentiary errors committed by the trial court require reversal. In particular, Appellants contend the trial court erred in admitting evidence of Davidson's prior DUI convictions and in excluding evidence of Plaintiff's prior DUI convictions.⁶ Our standard of review in determining whether the trial court properly admitted or excluded evidence is well settled:

The decision to admit or exclude evidence lies within the sound discretion of the trial court and is afforded great discretion on appeal. Bacher v. State, 686 N.E.2d 791, 793 (Ind.1997). We will not reverse that decision absent a showing of manifest abuse of that discretion.

Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 670 (Ind.Ct.App.2004). Moreover, in determining whether evidentiary error requires reversal, we assess the probable impact upon the trier of fact. Wohlwend v. Edwards, 796 N.E.2d 781.

"Although evidence must be relevant to be admissible, see Ind. Evidence Rule 402, not all relevant evidence is admissible." Wohlwend v. Edwards, 796 N.E.2d at 785. Ind. Evidence Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Wohlwend v. Edwards, 796 N.E.2d 781. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ind. Evidence Rule 401.

Appellants argue that Davidson's prior DUI convictions are irrelevant to the issue of punitive damages, or, if relevant, were unfairly prejudicial. Punitive damages are proper only if "there is clear and convincing evidence that the defendant acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing." Wohlwend v. Edwards, 796 N.E.2d at 784.

Punitive damages may also be awarded upon a showing of willful and wanton misconduct. Punitive damages are those designed to punish the wrongdoer and to discourage him and others from similar conduct in the future. Because they are awarded in addition to damages that compensate for the specific injury, the injured party has already been awarded all that he is entitled to as a matter of law. Therefore, the sole issue is whether the defendant's conduct was so obdurate that he should be punished for the benefit of the general public.

Punitive damages are awarded upon a showing of intentional conduct, which focuses on the defendant's state of mind.

INS Investigations Bureau, Inc. v. Lee, 784 N.E.2d 566, 582-83 (Ind.Ct.App.2003) (citations omitted). We find that evidence of Davidson's four previous DUI convictions was clearly relevant to his state of mind at the time of the accident and whether his actions were willful and wanton justifying the imposition of punitive damages. The remaining question is if the introduction of this evidence was unfairly prejudicial.

Appellants assert that the introduction of the DUI convictions was unfairly prejudicial because when the jury heard evidence of Davidson's prior convictions there was a danger that it would and did punish Davidson for his past behavior rather than his conduct the night of the accident. In support of this argument, Appellants rely on Wohlwend v. Edwards, 796 N.E.2d 781, wherein a panel of this court reversed an award of punitive damages arising out of a motor vehicle accident. As an issue of first impression, the Wohlwend court held it was reversible error to admit evidence of defendant's subsequent acts of drunken driving even if limited to the issue of punitive damages.⁷ In reaching this conclusion, the Wohlwend court engaged in an extensive discussion of State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003),⁸ as well as relevant caselaw from other jurisdictions, and expressed concern that admission of defendant's subsequent bad acts created a danger that the jury would punish defendant for subsequent behavior rather than the conduct involving the plaintiffs. Wohlwend v. Edwards, 796 N.E.2d 781.

Appellants assert that the "identical concerns that this Court had in Wohlwend have come to fruition in this case." Appellants' Brief at 11. We disagree and find Wohlwend readily distinguishable. Most notably, Wohlwend, dealt only with subsequent conduct. Appellants contend...