Hopper v. Carey

• Decision Date: 24 September 1999
• Docket Number: No. 72A01-9809-CV-330.,72A01-9809-CV-330.
• Citation: 716 N.E.2d 566
• Parties: Bernard W. HOPPER and Rettie Hopper, Individually and on behalf of their minor son, George R. Hopper, Appellants-Plaintiffs, v. Roy CAREY, Scott County Highway Department, Continental Western Insurance Co., Lucas Brothers, Inc., and S & S Fire Apparatus Co., Appellees-Defendants.
• Court: Indiana Appellate Court

716 N.E.2d 566

Bernard W. HOPPER and Rettie Hopper, Individually and on behalf of their minor son, George R. Hopper, Appellants-Plaintiffs, v. Roy CAREY, Scott County Highway Department, Continental Western Insurance Co., Lucas Brothers, Inc., and S & S Fire Apparatus Co., Appellees-Defendants.

No. 72A01-9809-CV-330.

Court of Appeals of Indiana.

September 24, 1999.

Donald R. Forrest, Scott & Forrest, New Albany, Indiana, Attorney for Appellant.

Sandra L. Heeke, Smith, Bartlett, Heeke, Carpenter, Lewis & Thompson, Jeffersonville, Indiana, Attorney for Appellee, Scott County Highway Dep't.

John W. Woodard, Jr., Wyatt, Tarrant & Combs, New Albany, Indiana, Attorney for Appellee, Lucas Brothers, Inc.

OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Bernard and Rettie Hopper (collectively "Hopper"), individually and on behalf of their minor son, George Hopper, bring an interlocutory appeal of the trial court's grant of a motion in limine filed by Appellee-Defendant, Lucas Brothers, Inc. We reverse with instructions.

Issue

Hopper raises one issue for our review which we restate as: whether the trial court properly granted the motion in limine which provided that evidence of failure to wear seat belts is admissible to demonstrate fault.

Facts and Procedural History

On December 21, 1994, Bernard was driving a fire truck water tanker for the Johnson Township Volunteer Fire Department ("Fire Department"). He was accompanied by another volunteer firefighter, Robert Fergison, and Bernard's son George, and was not on an emergency run. Defendant, Roy Carey, was driving in the oncoming lane and as he passed, the fire truck went off the road onto the shoulder. The road surface had been recently repaved by defendant, Lucas Brothers, Inc. Bernard attempted to return the vehicle to the roadway but oversteered, causing the vehicle to leave the roadway again and overturn. Bernard and George were injured during the accident. The fire truck was equipped with seat belts, but contrary to the Fire Department's rules, none of the occupants were wearing them at the time of the accident.

Hopper filed a complaint seeking damages for the personal injuries received by Bernard and George. The complaint contained a negligence count against Carey, Lucas Brothers, and the Scott County Highway Department ("Highway Department"), and a products liability count against the manufacturer of the fire truck, S & S Fire Apparatus Co.

On May 7, 1998, Lucas Brothers filed a motion in limine requesting an order "that evidence of Bernard Hopper's and George Hopper's failure to wear seat belts is admissible to demonstrate `fault' on the part of Bernard Hopper and George Hopper." R. 51. The trial court held a hearing and later granted the motion. The trial court certified the order for interlocutory appeal on August 7, 1998 and this court accepted jurisdiction of the appeal on September 29, 1998.¹

Discussion and Decision

I. Standard of Review

The granting or denying of a motion in limine is within the sound discretion of the trial court. Jones v. State, 163 Ind.App. 454, 324 N.E.2d 828, 832 (1975). The granting of a motion in limine is an adjunct of the inherent power of trial courts to admit and exclude evidence. City of Indianapolis on Behalf of Dept. of Metropolitan Development v. Heeter, 171 Ind.App. 119, 355 N.E.2d 429, 439 (1976). It must be noted that ordinarily the denial of a motion in limine can occasion no error; the objectionable occurrence is the improper admission of items in evidence.² Id. Therefore, the standards of review applicable to questions concerning the admission of evidence must prevail in the case at bar. Id. The standard of review for admissibility of evidence issues is abuse of discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997), cert. denied, ___ U.S. ___, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999). Even if a trial court errs in a ruling on the admissibility of evidence, we will only reverse if the error is inconsistent with substantial justice.

II. Evidence of Fault

Hopper argues that the trial court erred when it granted Lucas Brothers' motion in limine. The trial court's order in limine determined that evidence of seatbelt use would be admissible to demonstrate fault. The present case involves three liability theories: Hopper's complaint against Carey and the Lucas Brothers is governed by the Comparative Fault Act; his complaint against the Highway Department is governed by the common law principle of contributory negligence; and his complaint against S & S Fire Apparatus Co. is a products liability action. We will address Hopper's complaint of error as it relates to each defendant separately.

A. The Highway Department

Tort claims against governmental entities such as the Highway Department are subject to common law principles of negligence because Indiana's Comparative Fault Act does not apply to such entities. Ind.Code § 34-51-2-2; Hapner v. State, 699 N.E.2d 1200, 1205 (Ind.Ct.App.1998). Thus, the common law defenses of incurred risk and contributory negligence are available to such defendants.

In the present case, the trial court ruled that evidence of Hopper's failure to use a seatbelt is admissible to determine fault. The validity of the seatbelt defense has been hotly contested in courts across the country, and the result could hardly be considered a consensus on this issue. See Clarkson v. Wright, 108 Ill.2d 129, 90 Ill. Dec. 950, 483 N.E.2d 268 (1985)

(holding that a plaintiff does not have the duty to anticipate the negligence of others, and therefore, the plaintiff's failure to use a seatbelt is inadmissible as to either damages or liability); and Thibeault v. Campbell, 136 N.H. 698, 622 A.2d 212 (1993) (holding that evidence of failure to wear seatbelt is inadmissible to demonstrate comparative fault where nonuse of seatbelt did not cause the collision); but see Ridley v. Safety Kleen Corp., 693 So.2d 934 (Fla. 1996), as clarified on reh'g, (March 27, 1997) (holding that pursuant to a state statute failure to wear a seatbelt may be raised as an affirmative defense to comparative negligence); and Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993) (holding that pursuant to a state statute, nonuse of a seatbelt may be admissible as evidence concerning mitigation of damages but not as evidence in regard to the issue of liability). The seatbelt defense in Indiana has a rather convoluted history. To aid our discussion of the seatbelt defense as it applies to this case, an outline of that history follows.

1. The Seatbelt Defense in Indiana

The first Indiana case to address the seatbelt defense was Kavanagh v. Butorac, 140 Ind.App. 139, 221 N.E.2d 824 (1966). In that case, the defendant argued on appeal that the plaintiff's contributory negligence proximately caused his own injury due to the failure to use his seatbelt. The defendant contended that use of the seatbelt would have prevented or minimized the injury. The Kavanagh court discussed the doctrine of avoidable consequences and held that although

failure to use the belts may come into action after the proximate cause, we have no authorities which we believe permit us to invoke that doctrine under the evidence here to avoid or to lessen the damage. We recognize [the] possibility of the doctrine applying in some future date and in some matter where the circumstances are clearer than the instant case in showing that some part of the injury would not have occurred except for the fact that plaintiff failed to avoid the consequence of the tort by not fastening his seat belt.

Id. at 830. The court concluded that there was insufficient evidence to hold, as a matter of law, that the use of a seatbelt would have prevented the identical injury, but left for another day the question whether the common law on this may change.

Following Kavanagh, the Seventh Circuit United States Court of Appeals encountered this issue in a case arising in Indiana, Mays v. Dealers Transit, Inc., 441 F.2d 1344 (7th Cir.1971). In Mays, the court upheld a jury instruction that failure to use a seatbelt established the defense of contributory negligence. The court declined to follow Kavanagh, concluding that "the wearing of seat belts is sufficiently involved in the matter of exercise of reasonable care as to be an issue of common law negligence in Indiana under proper circumstances." Id. at 1355. This conclusion was based in part on the court's view that in the few years since Kavanagh, the general public had become more aware of "the importance for safety of the wearing of seat belts." Id. at 1353. The Mays court determined that there was sufficient evidence presented to justify giving the challenged instruction.

In Birdsong v. ITT Continental Baking Co., 160 Ind.App. 411, 312 N.E.2d 104 (1974), this court addressed a situation similar to Kavanagh. The trial court gave a jury instruction tendered by the defendants which "allow[ed] a reasonable juror to conclude that the law of Indiana sanctions a reduction in the damages claimed by Birdsong in proportion to the degree of negligence the jury assigns to Birdsong's failure to have his seatbelt fastened at the time of the collision." Id. at 106. We held that it was reversible error to give this instruction for two reasons. First, because Indiana had not yet adopted the doctrine of comparative negligence, "Indiana law does not recognize degrees of negligence." Id. Second, the Birdsong court held that the defendant "failed to present any evidence which connected Birdsong's injuries to his failure to have his seatbelt fastened at the time of the collision." Id. at 107. In an opinion in which he concurred in result, Judge Lybrook compared the case to Kavanagh, in that there was also insufficient evidence to support use of the seatbelt defense. As in Kavanagh, however, Judge Lybrook left the door open by admitting his "reluctan[ce] to state that a correct instruction on this subject can never be given." Id....