Evans v. Palmeter

• Decision Date: 08 July 1987
• Docket Number: No. 34A02-8609-CV-347,34A02-8609-CV-347
• Citation: 509 N.E.2d 1130
• Parties: Lola J. EVANS, Personal Representative of Kenneth E. Wyant, Deceased, Plaintiff-Appellant, v. Lewis E. PALMETER and Transport International Pool, Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1130

509 N.E.2d 1130

Lola J. EVANS, Personal Representative of Kenneth E. Wyant Deceased, Plaintiff-Appellant, v. Lewis E. PALMETER and Transport International Pool, Inc. Defendants-Appellees.

No. 34A02-8609-CV-347.

Court of Appeals of Indiana Fourth District.

July 8, 1987.

Rehearing Denied Aug. 12, 1987.

Courtney B. Justice, Logansport, Thomas J. Trauring, Fell, McGarvey and Trauring, Kokomo, for plaintiff-appellant.

Charles F. Robinson, Jr., Linda Y. Hammel, Yarling, Robinson, Hammel & Lamb, Indianapolis, for defendant-appellee Lewis E. Palmeter.

Robert C. Wolf, Johnson, Gross, Densborn & Wright, Indianapolis, for defendant-appellee Transport Intern. Pool, Inc.

STATEMENT OF THE CASE

RATLIFF, Chief Judge.

Lola Evans, the personal representative of the estate of Kenneth Wyant, appeals a jury verdict in favor of Lewis Palmeter and a summary judgment ruling in favor of Transport International Pool, Inc. We reverse as to the jury's verdict and affirm on the summary judgment.

FACTS

On August 6, 1984, Kenneth Wyant was northbound on his motorcycle on State Highway 29. Wyant was just north of the town of Middlefork. Lewis Palmeter had been following Wyant in a tractor-trailer at a distance of 60 feet. Palmeter had followed Wyant for 25-30 miles at an estimated speed of between 55 and 60 miles per hour. For an unknown reason, Wyant suddenly slowed down on the highway. Palmeter had been looking into his rear view mirrors. When he looked back to the road, he saw Wyant's brake lights. Palmeter slammed on his brakes but was unable to stop his vehicle in time and struck Wyant's motorcycle. Wyant was thrown under the tractor-trailer and died from his injuries. The accident occurred on a clear, sunny day.

At the scene, police noticed the odor of alcohol on Palmeter's breath. Police transported Palmeter to the county jail. There, Palmeter's blood alcohol content tested at .025%. Palmeter later admitted that the night before the accident, he drank a pint of vodka alone until 2:00 a.m.

ISSUES

Although Evans presents six issues for review, the following are dispositive:

1. Whether the trial court committed reversible error in giving a sudden emergency instruction.

2. Whether the trial court erred in granting summary judgment in favor of Transport International Pool.

DISCUSSION AND DECISION

Issue One

Evans alleges that the trial court erred in giving a "sudden emergency" instruction. The instruction was as follows:

"You are constructed [sic] that when one is confronted with a sudden emergency not of his own making, and does not have sufficient time to determine with certainty the best course to pursue, then under such circumstances, he is not held to the same accuracy of judgment that would be required of him if he had time for deliberation. Accordingly, if you find from a fair preponderance of the evidence of this case that the defendant, Lewis E. Palmeter, was confronted with a sudden emergency not of his own making and did not have sufficient time to determine with certainty the best course to pursue, and if you further find from a fair preponderance of the evidence that the Defendant, Lewis E. Palmeter, then and there exercised such care as an ordinary prudent person would have exercised when confronted by a similar emergency, then the defendant, Lewis E. Palmeter, would not be liable for damages resulting from the consequences of such emergency. Even though, Defendant Lewis E. Palmeter might have taken another course of conduct which might have been more judicious or safer, or might even have avoided the collision, and under certain circumstances, your verdict should be for the defendant, Lewis Palmeter on plaintiff's complaint." (Record at 568-69).

The sudden emergency doctrine was developed as a recognition "that the law does not require the same accuracy of judgment of one who has innocently been deprived of time to deliberate his actions as it requires of one who has the opportunity for deliberation. Stein v. Yung, (1985) Ind.App., 475 N.E.2d 52, 54 [trans. denied ]". State v. Magnuson (1986), Ind.App., 488 N.E.2d 743, 750, trans. denied. It is an affirmative defense to either negligence or contributory negligence. Stein, at 54. Our supreme court summarized the essential elements of a sudden emergency claim:

"(1) That the appearance of danger or peril was so imminent that he had no time for deliberation. Hedgecock v. Orlosky (1942), supra, 220 Ind. 390, 397, 44 N.E.2d 93;

"(2) That the situation relied upon to excuse any failure to exercise legal care was not created by his (appellant's) own negligence. Dunbar v. Demaree (1936), 102 Ind.App. 585, 601, 2 N.E.2d 1003; Redd v. Indianapolis Railways (1951), supra, 121 Ind.App. 472, 97 N.E.2d 501;

"(3) That his conduct under the circumstances was such as the law requires of an ordinarily prudent man under like or similar circumstances. Gamble v. Lewis (1949), supra, 227 Ind. 455, 85 N.E.2d 629; Zoludow v. Keeshin Motor Express (1941), 109 Ind.App. 575, 34 N.E.2d 980."

Taylor v. Fitzpatrick (1956), 235 Ind. 238, 247, 132 N.E.2d 919, 924; see also Magnuson, at 750; Taylor v. Todd (1982), Ind.App., 439 N.E.2d 190, 193; Lovely v. Keele (1975), 166 Ind.App. 106, 109-10, 333 N.E.2d 866, 868. Although the issue of sudden emergency generally is a question for the jury's determination, the threshold determination of whether the doctrine applies and justifies an instruction rests with the trial court. Stein, at 54.

In the present case, the sudden emergency doctrine does not apply. The driver of the truck, Palmeter, testified at trial that he followed Kenneth Wyant at a distance of 60 feet while going about 60 miles per hour. Palmeter had followed Wyant's motorcycle in this manner for over 25 miles. Simple arithmetic reveals that a vehicle traveling at 60 m.p.h. traverses a distance of 88 feet per second. Thus, Palmeter and the motorcyclist were less than one second apart immediately prior to the accident. It is generally recognized that the average reaction time for a vehicle's driver is three-fourths of a second. Bunch v. McMillian (1978), Mo.App., 568 S.W.2d 809, 812 (Missouri courts take judicial notice of three-fourths of a second in absence of affirmative proof); Tate v. Borgman (1958), 167 Neb. 299, 306, 92 N.W.2d 697, 701 (favorable dicta, citing Missouri's approach); Ardis v. Reed (1965), 86 N.J.Super. 323, 335, 206 A.2d 890, 896 (in dicta, quotes from Wiebe with approval); State v. Bush (1962), 88 Ohio Abs. 161, 166, 182 N.E.2d 43, 47 (judicial notice); Wiebe v. Seely (1959), 215 Or. 331, 366, 335 P.2d 379, 395 (favorable dicta, citing other jurisdictions like Ohio and Missouri); Casey v. Standish (1973), Tex.Civ.App., 492 S.W.2d 629, 631 (a matter of law); cf. Kaan v. Kuhn (1947), 64 Wyo. 158, 173, 187 P.2d 138, 143 ("common knowledge" of at least one half second reaction time). Thus, since Palmeter was traveling 88 feet per second, the distance for him simply to react was 66 feet, or six feet greater than the distance between him and Wyant.

Although our legislature has not specifically mandated a requisite safe following distance for vehicles traveling at various velocities, it did enact a statute which generally encompasses such activity. Indiana Code section 9-4-1-73(a) provides, "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles, the time interval between vehicles, and the condition of the highway." It is generally agreed that a vehicle following another should keep such distance from the vehicle ahead so as to be able to provide for the contingency of the vehicle ahead suddenly stopping. 2 Kelly, Blashfield Automobile Law and Practice Sec. 113.15 (3d ed. 1979); see also 7A Am.Jur.2d Automobiles and Highway Traffic Sec. 261 (1980). "In some cases, ... it has been held as a matter of law, that a motorist who collided with a vehicle ahead which was slowing down was negligent in failing to keep a proper distance ahead." 7A Am.Jur.2d Automobiles and Highway Traffic Sec. 856 (1980) (emphasis added). The National Safety Council recommends that, under ideal conditions, a truck driver should allow at least four seconds between his vehicle and the vehicle ahead. Defensive Driving Course--Professional Truck Driver Notebook, National Safety Council 22 (1986). Palmeter was less than one second behind Wyant. The National Safety Council also estimates that the safe stopping distance for a truck going 60 m.p.h. is 426 feet under ideal conditions. Instructor's Manual for Defensive Driving Course--Professional Truck Drivers, National Safety Council 3-9 (1st ed. 1986). Palmeter was following Wyant at a distance of 60 feet. Thus, Palmeter should have been following Wyant at a much, much greater distance.

Also, Palmeter at trial admitted that he was inattentive. Palmeter took his eyes off the road to look into his rear view mirrors to check on his brakes. Although it is true that momentarily diverting one's eyes from the road is not negligent as a matter of law, Campbell v. Hammontree (1975), 163 Ind.App. 160, 322 N.E.2d 725, Palmeter's acts of following too closely and looking twice in his mirrors combined to be a cause of the accident. When Palmeter checked his brakes by looking at the mirrors, he should have reduced his speed to put more distance between his vehicle and Wyant's motorcycle.

The sudden emergency instruction was given erroneously because Palmeter brought on the emergency himself. In Cartwright v. Harris (1980), Ind.App., 400 N.E.2d 1192, 1195, trans. denied, Judge Miller opined that "before a party is entitled to the benefits of the sudden emergency doctrine, his conduct must be free from negligence which contributed to the creation of the emergency itself." If Palmeter had followed at a safe distance and had remained attentive, Wyant's application of his brakes would not have created an emergency. Therefore, the sudden emergency...