Donaldson v. Indianapolis Public Transp. Corp.

• Decision Date: 26 April 1994
• Docket Number: No. 29A04-9212-CV-453,29A04-9212-CV-453
• Citation: Donaldson v. Indianapolis Public Transp. Corp., 632 N.E.2d 1167 (Ind. App. 1994)
• Parties: Antwon DONALDSON, b/n/f Debra Donaldson, and Debra Donaldson, Appellants-Plaintiffs, v. INDIANAPOLIS PUBLIC TRANSPORTATION CORPORATION, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1167

632 N.E.2d 1167

Antwon DONALDSON, b/n/f Debra Donaldson, and Debra Donaldson, Appellants-Plaintiffs, v.INDIANAPOLIS PUBLIC TRANSPORTATION CORPORATION, Appellee-Defendant.

No. 29A04-9212-CV-453.

Court of Appeals of Indiana Fourth District.

April 26, 1994.

C. Dennis Wegner, Jeffrey K. Orr, C. Dennis Wegner & Associates, Indianapolis, for appellants.

William Diehl, Edwin L. Gagnon, Byrum, Gagnon & Diehl, Indianapolis, for appellee.

RILEY, Judge.

STATEMENT OF THE CASE

Plaintiffs-AppellantsAntwon Donaldson, b/n/f Debra Donaldson, and Debra Donaldson(hereinafter referred to by forename or collectively as "Donaldson") appeal a judgment in favor of Indianapolis Public Transportation Corporation(IPTC).

We affirm.

ISSUES

Donaldson raises the following consolidated and restated issues for our review:

1.Whether the trial court abused its discretion in determining that a witness offered as an expert was not qualified to testify.

2.Whether the trial court committed reversible error in giving an instruction on the statutory duty of a pedestrian.

3.Whether the trial court erred in admitting a police report offered by IPTC.

IPTC raises the following issue:

1.Whether an award of damages, in the form of costs and attorney fees, is proper.

FACTS AND PROCEDURE

On October 15, 1983, Maria Anderson was operating an IPTC bus in Indianapolis.As she drove down a city street, she observed people waiting at a curb to board the bus.She also saw boys playing on the sidewalk around a pushcart but did not see anyone in or on the cart.The bus had almost come to a complete stop when Anderson heard something contact the side of the vehicle.She completed her stop and looked in the sideview mirror and saw eight year old Antwon in the street between the curb and the rear tire of the bus.Antwon sustained severe injuries to his abdominal region in the accident.

Donaldson filed a complaint against Anderson and IPTC in Marion County.The complaint alleged that Anderson was negligent in the operation of the bus and that Antwon's injuries occurred when the pushcart suddenly veered off the sidewalk and hit IPTC's bus.A jury trial was held in Marion County Superior Court, Room 6.After the close of all the evidence, the court granted Anderson and IPTC's motion for judgment on the evidence.

Donaldson appealed the trial court's judgment.In a memorandum decision, Donaldson v. Indpls. Public Trans. Corp.523 N.E.2d 774(Ind.App.1988), this court held that the trial court erred in granting the judgment on the evidence because there was more than a scintilla of evidence from which the jury could have inferred that Anderson did not exercise reasonable care in operating IPTC's bus.

Following the reversal by this court, the case was venued to the Hamilton Circuit Court for a jury trial.¹At the completion of the trial, the jury returned a verdict in favor of IPTC.Donaldson now appeals.

DISCUSSION AND DECISION

I.TESTIMONY OF MOTT

At trial, a number of witnesses testified that Anderson could not have known that the pushcart carrying Antwon would leave the twenty foot wide sidewalk.Other witnesses testified that the erratic movements of the pushcart as it progressed down the sidewalk toward the bus should have put Anderson on notice that the cart and its passenger would end up in the street.

Donaldson called Craig Woodall, IPTC's coordinator of training and safety, as a witness to talk about the training and safety procedures of IPTC's drivers.Woodall, who testified in response to a subpoena, acknowledged that some of the materials used in training came from the National Safety Council.A driver booklet from the Council was placed into evidence.Woodall also testified that IPTC used the Council for "both training materials and also for operator recognition for driving achievements."(R. 776).On cross-examination, Woodall testified that there was no National Safety Council rule that required a driver to stop every time she observed children on a sidewalk.

Donaldson called an accident reconstructionist who testified that his reconstruction of the accident established that Anderson could have avoided contact with the pushcart.Donaldson also called Sye Mott, a safety instructor familiar with National Safety Council rules.Donaldson attempted to qualify Mott as an expert witness on Council standards and their applicability to the actions of Anderson at the time the pushcart and bus collided.The trial court sustained IPTC's objection to the expert qualifications of Mott.The court also sustained IPTC's objection to any expert opinion from Mott about National Safety Council rules and Anderson's compliance therewith.The trial court additionally held that Council standards were not relevant to the case.

Donaldson contends the trial court committed error when it did not allow Mott to testify about National Safety Council rules.Donaldson argues that he was prejudiced by the trial court's ruling because Mott's testimony was intended to rebut Woodall's cross-examination testimony.

The trial court has broad discretion in determining the propriety of expert testimony.Summers v. State (1986), Ind.App., 495 N.E.2d 799, 802 reh'g denied, trans. denied.The trial court's decision can only be reversed for an abuse of discretion.An abuse of discretion occurs when the trial court's action is clearly against the logic and effect of the facts and circumstances before the court or the reasonable deductions to be drawn therefrom.Dorgan v. Dorgan (1991), Ind.App., 571 N.E.2d 325, 326.An important factor in determining whether the trial court committed reversible error in excluding testimony is the effect of the exclusion upon the proponent's case; an erroneous ruling will not be reversed unless it caused prejudice to the proponent.Wisehart v. State (1985), Ind., 484 N.E.2d 949, 957, cert. denied476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556(1986).Even though a trial court's reason for excluding a witness's testimony is erroneous, the ruling will still be upheld if it can be sustained on any other grounds.Santini v. Consolidated Rail Corporation (1987), Ind.App., 505 N.E.2d 832, 835.

During direct examination, when the trial court rules that a witness may not testify, the proponent of the excluded testimony must make an offer of proof to preserve the ruling for appellate review.State v. Fischer (1986), Ind.App., 493 N.E.2d 1265, 1267, overruled on other grounds byBohall v. State (1989), Ind., 546 N.E.2d 1214."An offer of proof provides the appellate court with the scope and effect of the area of inquiry and the proposed answers, in order that it may consider whether the trial court's ruling excluding the evidence was proper."Tyson v. State (1993), Ind.App., 619 N.E.2d 276, 281, trans. denied.Thus, "the offer of proof must demonstrate the substance, purpose, relevancy, and materiality of the excluded evidence in order to enable the appellate court to determine on appeal whether the exclusion was proper."Id.

In the present case, Donaldson made a partial offer of proof by asking Mott if he would testify about National Safety Council rules and Anderson's actions.He also asked whether Council rules were taught in defensive driving schools.However, Donaldson did not ask about specific rules that arguably applied, nor did he elicit specific testimony comparing Anderson's actions with the requirements of specific rules.While the offer was sufficient to establish the relevancy of Mott's testimony, it was not sufficient to establish the materiality thereof.Therefore we have no way of determining whether Donaldson was prejudiced by the trial court's ruling.²Thus, we cannot say that the trial court committed reversible error in excluding Mott's testimony.

II.THE TRIAL COURT'S INSTRUCTION

Donaldson contends the trial court erred in giving Jury InstructionNo. 4, which read:

I.C. § 9-4-1-87, Pedestrians; right-of-way; marked or unmarked crosswalks; uncontrolled intersections.

(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard.

If you find from a fair preponderance of the evidence in this case at the time of the accident in controversy Antwon Donaldson failed to obey the provisions of this statute without excuse or justification, then such conduct on the part of Antwon Donaldson will constitute contributory negligence.He may excuse or justify the violation by sustaining the burden of showing the violation occurred despite his exercise of that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and education level.

(R. 1114).Donaldson argues that the instruction is erroneous because it is unsupported by any evidence to indicate that he voluntarily left the sidewalk.³

The giving of jury instructions is a matter primarily entrusted to the discretion of the trial court.Underly v. Advance Mach. Co. (1993), Ind.App., 605 N.E.2d 1186, 1190, reh'g denied, trans. denied (citingWielgus v. Lopez (1988), Ind.App., 525 N.E.2d 1272, 1274).The decision will not be disturbed on review absent an abuse of discretion.Id.(citingWeller v. Mack Trucks, Inc. (1991), Ind.App., 570 N.E.2d 1341, 1343).In reviewing a claim that trial evidence was insufficient to support the giving of an instruction, we may look only to that evidence most favorable to appellee and any reasonable inferences to be drawn therefrom.Id.(citingAntcliff v. Datzman (1982), Ind.App., 436 N.E.2d 114, 122).

An instruction similar to Jury InstructionNo. 4 was reviewed in Kurowsky v. Deutsch (1989), Ind., 533 N.E.2d 1210.⁴In Kurowsky, our supreme court held that "a court in deciding how to instruct a jury, [must] first consider whether the statute is such that a violation of it would be negligence in any context."533 N.E.2d at 1212.The court further held that:

In such caseswe think it...