Elkhart Community Schools v. Yoder
| Decision Date | 05 June 1998 |
| Docket Number | No. 20A05-9705-CV-173,20A05-9705-CV-173 |
| Citation | 696 N.E.2d 409 |
| Parties | ELKHART COMMUNITY SCHOOLS, Appellant-Defendant, v. Anthony A. YODER and Joanna Yoder, Parents of N. Allison Yoder, deceased, Arlene J. Fisher, Gary Fisher, and Teri K. Fisher, Individually and as parents of Arlene J. Fisher, Appellee-Plaintiffs. |
| Court | Indiana Appellate Court |
Elkhart Community Schools (the School) appeals judgments against it, entered after a jury trial, in favor of Arlene Fisher (Arlene), Gary and Teri Fisher (Fishers), and Anthony and JoAnna Yoder (Yoders). The School raises four issues, which we restate as:
1. Whether the School's assertion that two jury instructions were improper was preserved for review, when the School's objection was not stated verbatim in its brief and when its objection at trial was that the instructions did not correctly state the law and were not supported by the facts?
2. Whether the jury verdicts against the School were supported by the evidence?
3. Whether the trial court abused its discretion in declining to bifurcate the damages and liability issues at trial?
4. Whether the trial court properly denied the School's Motion to Correct Error based on newly discovered evidence when the evidence consists of a statement by a firefighter-EMT who was listed on the police report as one of the emergency personnel dispatched to the scene and who was still employed by the fire department when the case was tried?
Fishers raise an additional issue, whether the trial court improperly entered judgment for Fishers in the total amount of $300,000.00 when the jury had returned a verdict for Fishers in the amount of $450,000.00 but the Indiana Tort Claims Act limits recovery for personal injury to one person to $300,000.00?
We affirm.
On May 14, 1993, a fifteen passenger school van carrying eight students from Goshen High School to Elkhart Memorial High School was involved in a collision in Elkhart. The Fishers' daughter Arlene and the Yoders' daughter Allison were passengers in the van. Allison was killed and Arlene was rendered a quadriplegic. The van was equipped with seat belts, but the student passengers were not wearing them because the students either could not find the belts, could not figure out how to operate them, or found the belts to be inoperable.
On appeal, the School challenges two of the instructions given the jury. The School asserts that instruction number 14 is defective because "it imposes liability on the school without any act of omission or commission that may have resulted in a non-working seat belt," Brief of Appellant at 12, and because it would allow a finding of negligence on the part of the School even if the School had no notice of a non-functional seat belt.
Final instruction number 14 stated:
If you find that the seat belts in the Elkhart Community School Corporation van were not in proper working order or could not reasonably be used by the students being transported in said van, then you may find that such failure constituted negligence on the part of Elkhart Community School Corporation.
The School next asserts that final instruction number 27 was defective because it created an assumed duty on the part of the school. That instruction stated:
A duty may be imposed upon a defendant who by affirmative conduct assumes a duty to exercise care and skill, even voluntarily, for the safety of another. The assumption of a duty creates a special relationship between the parties and a corresponding duty on the part of the defendant to act in a manner of a reasonably prudent person in providing the safety measure.
Elkhart Community School Corporation assumed the duty to provide passengers in its vans with operational, proper seat belts by providing rear seat passengers in its vans with seat belts and by regularly maintaining, servicing, and inspecting the seat belts. If you find that Elkhart Community School Corporation failed to provide properly working seat belts or ones that could not reasonably be used by the students being transported in said van, then you may find such failure constitutes negligence on the part of the defendant Elkhart Community School Corporation.
When error is predicated upon the giving of an instruction, our rules require that the instruction be set out verbatim in the argument section of the brief along with the verbatim objection that was made to the instruction. Ind. Appellate Rule 8.3(A)(7). Failure to state the instruction and objection verbatim waives the allegation of error. Thrapp v. Austin, 436 N.E.2d 1170, 1175 (Ind.Ct.App.1982).
While the School does state verbatim both challenged instructions in the argument section of its brief, it does not set out verbatim its objections to the instructions, nor does it direct us to that place in the nearly 1500-page record where its objection may be found. 2 The School has thus waived this allegation of error.
We further note that Ind. Trial Rule 51(C) requires that a party who claims as error the giving of an instruction must state "distinctly" the grounds of the objection. The purpose of T.R. 51(C) is to protect the trial court from inadvertent error, so an objection to an instruction must be sufficiently specific to make the trial judge aware of the alleged error before he or she reads the instruction to the jury. Terre Haute Regional Hosp., Inc. v. El-Issa, 470 N.E.2d 1371, 1376 (Ind.Ct.App.1984). Failure to comply with the requirements of T.R. 51(C), like failure to comply with App.R. 8.3(A)(7), results in the waiver of any error in the giving of the instruction. Id. An objection that the instruction is not a correct statement of law is not sufficiently specific and is inadequate. Carrier Agency v. Top Quality Bldg. Prod., 519 N.E.2d 739, 744 (Ind.Ct.App.1988). The School has waived any error arising from the trial court's instructions to the jury.
The School has not preserved for our review its allegations of error regarding the jury instructions. So, we must leave for another day the question whether a school which purchases a van equipped with seat belts for the rear seat passengers even though such seat belts are not required by law, and which inspects, maintains, and services the seat belts, has assumed a duty to make functional seat belts available to the rear seat passengers.
The School contends there was insufficient evidence to support the jury's determination that the School was negligent and that neither victim was contributorily negligent. 3 When we review a claim of insufficient evidence, we do not reweigh the evidence or judge the credibility of the witnesses. We consider only the evidence and the reasonable inferences from the evidence which support the jury's verdict. Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind.Ct.App.1996). Where the jury returns a verdict for the plaintiff in a civil action, and the trial court enters judgment on the verdict, we will not reverse unless there is no evidence or reasonable inference from the evidence on an essential element of the plaintiff's case. Id.
Negligence may be proved by direct or circumstantial evidence. Richter v. Klink Trucking, Inc., 599 N.E.2d 223, 227 (Ind.Ct.App.1992). When items of circumstantial evidence are relied upon to raise an inference of negligence, they must be of such significance and relationship to one another that a reasonable conclusion of negligence can be founded thereon. Id. In Richter, the plaintiff argued that debris which had fallen from a Klink truck was the proximate cause of an accident. Based on evidence that Klink had hauled over 30 loads of dirt and gravel on the day of the accident, that dirt and gravel were sometimes spilled on the highway when the trucks were loaded, and that Klink's trucks were equipped with shovels to clean up spilled dirt and gravel, we determined that the plaintiffs had raised a reasonable inference Klink was responsible for the hazardous condition of the roadway. Id. at 226.
With regard to the Yoder claim, the jury received evidence that Allison was thrown from the van in the collision; that Allison habitually used her seat belt when in a motor vehicle; and that other seat belts in the van were unavailable for use or not in working order. We cannot say that the inferences supporting the jury's conclusion that Allison's seat was not equipped with working seat belts were unreasonable. 4
With regard to the Fisher claim, the jury received evidence that there was a buckle at Arlene's right hip, a buckle attached to the ceiling, and a belt above and behind her left shoulder, but that Arlene couldn't figure out how to use the belt. Another student passenger tried to buckle a shoulder strap into a buckle on the seat, but could not connect the strap to the buckle. We cannot say the jury was unreasonable when it determined that Arlene's seat was not equipped with working belts. The reasonable inferences drawn by the jury from the direct and circumstantial evidence before it were sufficient to support the jury's finding that the School was negligent.
The trial court is granted a wide degree of latitude in exercising its proper discretion in granting a motion for separation of trials, and we will reverse the denial only for an abuse of that discretion. Farm Bureau Mutual Insurance Co. v. Dercach, 450 N.E.2d 537, 540 (Ind.Ct.App.1983); Ind. Trial Rule 42(B). The court balances the interests of convenience and economy against the likelihood of substantial prejudice to the defendant's case. If practicable, one trial is preferred. Id. While the avoidance of prejudice is a more than sufficient reason for a separate...
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