Ind. State Police v. Damore

• Decision Date: 26 August 2022
• Docket Number: Court of Appeals Case No. 21A-CT-2536
• Citation: 194 N.E.3d 1147
• Parties: INDIANA STATE POLICE and State of Indiana, Appellants-Defendants, v. The ESTATE OF Michael M. DAMORE, Appellee-Plaintiff.
• Court: Indiana Appellate Court

194 N.E.3d 1147

INDIANA STATE POLICE and State of Indiana, Appellants-Defendants,
v.
The ESTATE OF Michael M. DAMORE, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CT-2536

Court of Appeals of Indiana.

FILED August 26, 2022

Attorneys for Appellants: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Natalie F. Weiss, Deputy Attorney General, Indianapolis, Indiana

Attorneys for Appellee: David S. Gladish, Mark J. Schocke, Law Office of David Gladish, P.C., Highland, Indiana

Tavitas, Judge.

Case Summary

1] Denise Damore ("Denise"), as personal representative of the Estate of Michael Damore ("the Estate"), brought a claim for wrongful death against the Indiana State Police ("ISP") and the State

[194 N.E.3d 1152

of Indiana (collectively "the Defendants") after Michael Damore ("Michael") was fatally injured following a vehicle accident involving an ISP trooper. The jury found in favor of the Estate. The Defendants appeal and claim that: (1) the trial court abused its discretion by excluding evidence of Michael's driving behavior in the minutes before the accident; (2) the trial court abused its discretion by excluding the testimony of the Defendants’ expert witness due to an alleged violation of the court's order granting the Estate's motion in limine; (3) the trial court abused its discretion by failing to give two of the Defendants’ proposed jury instructions; and (4) the Estate failed to present evidence sufficient to establish that Michael's mother, Denise, was Michael's dependent, thereby requiring the damages award to be reduced to the maximum permitted by the Adult Wrongful Death Statute. We conclude that the trial court abused its discretion with regard to its evidentiary rulings and by failing to give the proposed jury instructions. We also conclude that the evidence does not support a finding that Denise was Michael's dependent. Accordingly, we reverse and remand.

Issues

2] The Defendants present four issues on appeal, which we restate as:

I. Whether the trial court abused its discretion by excluding evidence of Michael's driving behavior in the minutes before the accident that resulted in his death.

II. Whether the trial court abused its discretion by excluding the testimony of the Defendants’ expert witness based on an alleged violation of the court's order granting the Estate's motion in limine.

III. Whether the trial court abused its discretion by failing to give two of the Defendants’ proposed jury instructions.

IV. Whether the Estate failed to prove that Denise was Michael's dependent, thereby limiting the Estate's damages to that permitted by the Adult Wrongful Death Statute.

Facts

[3] At 9:27 p.m. on July 1, 2016, Michael was driving his motorcycle in the westbound lanes of the Indiana Toll Road when he collided with a patrol car driven by Indiana State Police Trooper Jathan Rose. Michael had just exited the tollbooth at Portage, Indiana. Trooper Rose had just conducted a traffic stop on the eastbound lanes and made a U-turn through traffic cones to enter the westbound side of the highway. Although it was a dark night, the weather was clear, and the road was well illuminated. Upon exiting the tollbooth, Michael moved his motorcycle to the right of the multiple lanes and accelerated in between two cars, thereby passing them. Michael's motorcycle struck the passenger-side door of Trooper Rose's patrol car, throwing Michael from the motorcycle. Michael suffered fatal injuries as a result of the accident.

[4] The following image, entered into evidence at trial, shows the location of the road, the tollbooth, and the vehicles involved in the accident:

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Plaintiff's Ex. 2.

5] The following diagram, based on a photograph¹ admitted into evidence at trial, depicts the accident site in greater detail:

[194 N.E.3d 1154

[6] ISP Trooper Paul Arnold, an accident reconstruction expert, investigated the crash and determined that, from the tollbooth to the point of impact with Trooper Rose's patrol car, Michael traveled 350 feet in approximately four seconds, for an average speed of 59.65 mph.² The posted speed limit prior to entering the tollbooth was 45 mph, and the posted speed after exiting the booth was 55 mph. Trooper Arnold determined that both Trooper Rose and Michael were at fault for the accident—Trooper Rose for failing to yield the right-of-way to oncoming traffic, and Michael for speeding, following too closely, and making unsafe lane movements.

7] The Estate's accident reconstruction expert, Stephen Neese, determined that Michael's maximum speed after exiting the tollbooth was only 43 mph. Neese concluded that, based on the timing of Trooper Rose's U-turn, Michael had insufficient perception-reaction time to avoid the collision and that Michael's speed was, therefore, not a contributing factor to the accident.

[8] On October 5, 2016, the Estate filed a complaint against the Defendants under the General Wrongful Death Statute ("GWDS"). The Defendants filed an answer that asserted the affirmative defense of contributory negligence. The Estate subsequently filed a motion in limine that sought to prevent the Defendants from introducing numerous pieces of evidence. The Estate sought to prevent the Defendants from referencing Michael's actions in driving his motorcycle just prior to reaching the tollbooth immediately before the accident.

[9] Specifically, the evidence the Estate sought to exclude was as follows. In the minutes preceding the accident, Westville Police Officer Ian Nelson observed a motorcycle, later determined to be driven by Michael, going 78 mph in a 55-mph zone. Officer Nelson attempted to pull the motorcycle over and activated his emergency lights, but Michael fled at a high speed and weaved in and out of traffic. Another witness, motorist David Griffin, saw Michael's motorcycle drive up behind him at a high rate of speed at the Michigan City tollbooth with a police car in pursuit. Griffin observed Michael "sh[o]ot out like a rocket" from the toll both. Tr. Vol. III p. 3-4. Griffin estimated that Michael was traveling in excess of 100 mph.

[10] Video from the Michigan City tollbooth depicted a motorcycle, indistinguishable from the one driven by Michael, pass through that tollbooth at 9:17:40 p.m.³ Video from the Portage tollbooth showed that Michael arrived at that booth at 9:27:31 p.m., nine minutes and fifty-one seconds later. Given the 14.8 miles between the Michigan City booth and the Portage booth, Michael necessarily traveled an average speed of 90.24 mph. Michael, however, came to a stop at the Portage tollbooth gate before accelerating and colliding with Trooper Rose's vehicle. The Estate argued, therefore, that "the speed and manner in which [Michael] was driving in the intervals before coming to a complete stop at the Portage Toll Plaza gate do not have any bearing on the eventual collision that

[194 N.E.3d 1155

costs [Michael] his life." Appellant's App. Vol. II p. 63. The Estate argued that this evidence was irrelevant and, even if relevant, unduly prejudicial. The Estate's motion in limine also sought to prevent any mention of the motion in limine itself. The trial court granted the Estate's motion in limine in relevant part following a hearing on June 17, 2021. The Defendants subsequently filed a motion to reconsider, which the trial court denied.

11] A three-day jury trial commenced on August 11, 2021. The Estate presented evidence that Michael, who was twenty-eight years of age at the time of his death, lived with his mother, Denise, who was the personal representative of the Estate. The Estate also presented evidence that Trooper Rose made the U-turn in an unsafe manner and that Michael was not driving in an unsafe manner.

[12] The only witness called by the Defendants was accident reconstruction expert Kevin Johnson, whose testimony was later stricken. Johnson opined that Michael had been following the car ahead of him too closely, which impaired Trooper Rose's ability to see Michael. Johnson testified that Michael quickly accelerated between two cars, which was an unsafe lane movement and further estimated that Michael was traveling at a speed of between 75 and 78 mph at the moment of the collision. Johnson thus concluded that Michael was partially at fault for the accident.

[13] The Estate's counsel cross-examined Johnson about Trooper Rose's decision to make the U-turn, and the following exchange occurred:

Q. And I think you said earlier, just to make sure we're on the same page, all of those vehicles as they're exiting [the tollbooth] presented a potential hazard to Trooper Rose in conducting this U-turn at that location?

A. Yes.

Q. That's what makes it a very bad location to do a U-turn?

A. Yes. You have a high volume of traffic coming toward you, yes.

*****

Q. ... Would [you] agree night driving makes it more difficult – I asked you that question.

Would you agree night driving is more difficult due to glare from roadside lighting and headlights of oncoming vehicles which may impair visibility?

A. Yes, sir.

Q. Based upon the problems with traffic at night on the toll way, [Trooper] Rose had the option of doing a U-turn at a different location. Isn't that true?

A. I don't want to infringe on your motion in limine. So I don't know as far as what his options were and –

Tr. Vol. III pp. 54-56 (emphasis added).

[14] At this point, the Estate's counsel asked to approach the bench and requested that the trial court impose monetary sanctions against Johnson. The trial court excused the jury and held a brief conference outside the presence of the jury, at which the following occurred:

THE COURT: I will initiate this. Be seated.

Sir, state your name for the record.

THE WITNESS: Kevin Johnson.

THE COURT: Mr. Johnson, we're taking this break because of you.

THE WITNESS: Okay.

THE COURT: Your last statement was totally inappropriate.

THE WITNESS: Okay.

THE COURT: Totally and unequivocally inappropriate.

THE WITNESS: I am sorry.

[194 N.E.3d 1156

THE COURT:

...