Kurowsky v. Deutsch
| Decision Date | 08 February 1988 |
| Docket Number | No. 34AO2-8612-CV-452,34AO2-8612-CV-452 |
| Citation | 518 N.E.2d 1111 |
| Parties | Todd KUROWSKY, Appellant (Defendant Below), v. Sherry DEUTSCH, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Thomas J. Trauring, Fell, McGarvey & Trauring, Kokomo, for appellant.
Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, for appellee.
Todd Kurowsky, the defendant, appeals the jury verdict in favor of Sherry Deutsch, the plaintiff, in a negligence action.
On April 20, 1984, at approximately 6:00 p.m., Sherry Deutsch suffered personal injuries when the bicycle she was riding collided with a bicycle ridden by Todd Kurowsky, a nine-year-old child. Deutsch filed an action claiming the collision occurred because Kurowsky failed to yield the right-of-way and did not keep a proper lookout before exiting a driveway into the street upon which she was traveling. Kurowsky denied liability and further claimed Deutsch was contributorily negligent. The jury returned a verdict awarding Deutsch $26,000.00.
The issue on appeal is whether the trial court erred in giving two jury instructions over Kurowsky's objection. We reverse.
The first contested jury instruction, final instruction no. 9, reads as follows:
A series of statutes of the state of Indiana in full force and effect at the time of the accident in controversy provide as follows:
9-4-1-14. Highways.--(a) Street or highway: the entire width between the boundary lines of every way publicly maintained when a part thereof is open to the use of the public for purposes of vehicular traffic.
(b) Private road or driveway: every way or place in private ownership and used for vehicular traffic traveled by the owner and those having expressed or implied permission from the owner but not by other persons.
9-4-1-21. Right-of-Way.--Right-of-Way. The privilege of the immediate use of the highway.
9-4-1-94. Traffic laws apply to persons riding bicycles. Every person riding a bicycle upon a roadway shall have all of the rights and all of the duties under the provisions of this chapter applicable to the driver of the vehicle except as to special regulations of this article, and except as to those provisions of this chapter which by their nature can have no application.
9-4-1-84. Entering highway from private road or driveway: the driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.
If you find from a fair preponderance of the evidence in this case that at the time of the accident in controversy, the defendant, Todd Kurowsky, failed to obey the provisions of these statutes without excuse or justification, then such conduct upon the part of Todd Kurowsky could constitute negligence unless you also find that in spite of the violation, he exercised that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence, and educational level.
Rec. at 62. Kurowsky asserts this instruction is erroneous for two reasons. First, Kurowsky claims the statutory duty to yield before entering a highway is inapplicable to a bicyclist exiting a private driveway. Second, Kurowsky argues use of the words "could constitute negligence" improperly conveys the impression to the jury that a nine-year-old bicyclist can be negligent by virtue of his violation of an adult motor vehicle safety statute.
"A jury instruction which misstates the law will serve as grounds for reversal where the jury's verdict could have been based on the erroneous instruction." Whitaker v. Kruse (1986), Ind.App., 495 N.E.2d 223, 225. Thus, for reversal, two conditions must be met; first, the jury instruction must misstate the law and second, the erroneous instruction must result in prejudice to the appellant. Indiana St. Highway Comm. v. Vanderbur (1982), Ind.App., 432 N.E.2d 418, 423. Before examining the possibility of prejudice to Kurowsky, then, we must determine whether this jury instruction misstated the law. We conclude it did for the second of the two reasons proffered by Kurowsky.
Kurowsky first argues the trial court erred in giving final instruction no. 9 because the quoted statute, IC 9-4-1-94 (Burns 1987) is applicable to bicycles only when they are ridden upon a roadway, (IC 9-4-1-94 and 9-4-1-14 (Burns 1987], while he was charged with exiting a private driveway.
With certain inapplicable exceptions, 1 IC 9-4-1-94 imposes the duties applicable to drivers of a vehicle upon persons riding a bicycle upon a roadway. Inasmuch as a roadway is defined as "[t]hat portion of a highway improved, designed, or ordinarily used for vehicular travel," (IC 9-4-1-14(c)) a bicyclist upon a private road is exempt from these duties. However, contemporaneous with the bicycle 'touching' the roadway, the bicyclist falls within the purview of IC 9-4-1-84. At that instant the bicyclist is "about to enter or cross a highway from a private road or driveway," and, accordingly, has the duty to yield the right of way to approaching vehicles. Therefore, in our opinion, the statutory reference is not in itself erroneous. But see Thornton v. Pender (1978), 268 Ind. 540, 552, 377 N.E.2d 613, 621.
Next, Kurowsky argues the instruction erroneously advised the jury he could be found negligent by virtue of his violation of an adult motor vehicle safety statute. We agree.
The standard of care imposed upon children is distinct from that imposed upon adults and is applicable to a child riding a bicycle even though bicyclists in general are subject to the motor vehicle code. Bixenman v. Hall (1968), 251 Ind. 527, 242 N.E.2d 837. In Bixenman, the supreme court adopted the generally-held rule that "where a minor is charged with negligence or contributory negligence by reason of his violation of a safety statute while engaged in an activity not requiring adult qualifications, the standard of care to be applied to such minor is that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level." Id. 242 N.E.2d at 840. 2
The standard of care for a child involved in an accident implicating the motor vehicle code was the issue in Baller By Baller v. Corle (1986), Ind.App., 490 N.E.2d 382. Discussing Bixenman, the Baller court said the "Bixenman decision stands for the proposition that the violation of a statute by a child must be considered in the light of the 'special consideration' [given to children] and not in the light of any presumption of negligence." Baller, 490 N.E.2d at 385. In Baller, this court held the trial court erred in advising the jury that if it found the seven-year-old plaintiff violated a pedestrian statute, without excuse or justification, his conduct created a presumption of contributory negligence which he could overcome by proving by a preponderance of the evidence, that "in spite of the violation, he exercised such care for his own safety which would ordinarily be exercised by a child of the same age, expertise, intelligence and educational level." Id. at 385, n. 1. This court considered the presumption language in the instruction particularly egregious when coupled with the erroneous advice the child bore the burden of proving he exercised due care under the circumstances.
Thus, a statutory violation by a child is not negligence per se because of the special child's standard. Instead, the violation is simply another factor to be considered by the fact finder in resolving the issue of whether the child's conduct conformed to the child's standard. Thus, a jury must be instructed that the violation of a relevant statute is evidence of negligence only if the jury first finds a reasonable child of the same age, intelligence, maturity and experience would not have acted in violation of a relevant statute under the same circumstances. Thornton, 377 N.E.2d 613. Of course, the party who asserts the child's conduct did not so conform bears the burden of proof upon the issue.
Final instruction no. 9 suffers an infirmity similar to that of the Baller instruction. It first advised the jury that if it found, by a preponderance of the evidence, that Kurowsky violated the statute, without excuse or justification, his violation could constitute negligence. This is an...
To continue reading
Request your trial
-
Kurowsky v. Deutsch
...of Appeals reversed the judgment and ordered a new trial because two erroneous instructions were given to the jury. Kurowsky v. Deutsch (1988), Ind.App., 518 N.E.2d 1111. The petition of appellee Deutsch for transfer is The evidence at trial upon which the jury was warranted in rendering it......