Lashbrooks v. Schultz

• Decision Date: 26 August 2003
• Docket Number: No. 10A01-0212-CV-473.,10A01-0212-CV-473.
• Citation: 793 N.E.2d 1211
• Parties: Kristin R. LASHBROOKS and Dwayne Lashbrooks, Individually and as Husband and Wife, Appellants-Plaintiffs, v. Maria H. SCHULTZ and Clark Memorial Hospital d/b/a Southern Indiana Rehabilitation Hospital, Appellees-Defendants.
• Court: Indiana Appellate Court

793 N.E.2d 1211

Kristin R. LASHBROOKS and Dwayne Lashbrooks, Individually and as Husband and Wife, Appellants-Plaintiffs, v. Maria H. SCHULTZ and Clark Memorial Hospital d/b/a Southern Indiana Rehabilitation Hospital, Appellees-Defendants.

No. 10A01-0212-CV-473.

Court of Appeals of Indiana.

August 26, 2003.

Trent Thompson, David P. Allen, Allen, Allen & Allen, Salem, IN, Attorneys for Appellant.

Eric D. Johnson, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney for Appellee.

OPINION

BROOK, Chief Judge.

Case Summary

Appellants-plaintiffs Kristin and Dwayne Lashbrooks appeal from a jury verdict in favor of appellee-defendant Maria H. Schultz. We reverse and remand for a new trial.

Issue

The Lashbrookses raise four issues for review, one of which we find dispositive and restate as whether the trial court abused its discretion in instructing the jury on sudden emergency.

Facts and Procedural History

On the morning of November 10, 1998, Schultz departed in her van from Floyd Memorial Hospital in Floyd County, Indiana, en route to Washington County Hospital in Salem, Indiana. After driving briefly in stormy and rainy weather, Schultz stopped at a gas station for approximately one-half hour because she "decided it was best if [she] stopped for a bit [to] see if the weather improved." Tr. at 86. Schultz resumed her trip eastbound on State Road 60 when the rain "slacked up[.]" Id. at 87.

Approximately three or four minutes after Schultz left the gas station, a sudden gust of wind blew her van off the right side of the road. The van hydroplaned, and the rear of the van spun to the right. Eventually, Schultz's van turned left and rolled across the road into a ditch, such that its rear end "was sticking out a bit in the road[.]" Id. at 89. Shortly thereafter, Kristin's westbound van collided with the right rear corner of Schultz's van, causing personal injuries to Kristin and her daughter.

The Lashbrookses sued Schultz for negligence. On October 10, 2002, a jury found in favor of Schultz. The Lashbrookses now appeal.

Discussion and Decision

Over the Lashbrookses' objection, the trial court instructed the jury on the sudden emergency doctrine as follows:

A person confronted with a sudden emergency, not of his own making and without sufficient time to deliberate, is not held to the same accuracy of judgment as one who had time to deliberate. Accordingly, the person is not negligent if he exercises such care as an ordinarily prudent person would exercise when confronted with a similar emergency.

If you find from the evidence that a sudden emergency confronted the Defendant and that she responded as an ordinarily prudent person would have when faced with the same or similar emergency, then you may not find the Defendant negligent.

Appellant's Br. at 6.

When reviewing challenges to jury instructions, we are mindful that

[i]nstruction of the jury is left to the sound judgment of the trial court, and our review of a trial court's decisions in this regard is highly deferential: we will not disturb the court's judgment absent an abuse of discretion. A trial court should give a tendered instruction if the instruction correctly states the law, the evidence supports the instruction, and the substance of the charge is not covered by other instructions.

Sikora v. Fromm, 782 N.E.2d 355, 361 (Ind.Ct.App.2002) (citations omitted), trans. denied (2003).

"The sudden emergency doctrine recognizes that a reasonable person innocently deprived of time to consider his actions does not always exercise the same accuracy of judgment as one who has had the opportunity for reflection." City of Terre Haute v. Simpson, 746 N.E.2d 359, 367 (Ind.Ct.App.2001) (citation and quotation marks omitted), trans. denied.

There are three factual prerequisites to an instruction on sudden emergency, which are: 1) the actor must not have created or brought about the emergency through his own negligence; 2) the danger or peril confronting the actor must appear to be so imminent as to leave no time for deliberation; and 3) the actor's apprehension of the peril must itself be reasonable.

Barnard v. Himes, 719 N.E.2d 862, 869 (Ind.Ct.App.1999), trans. denied (2000). The Lashbrookses contend that the trial court abused its discretion in instructing the jury on the sudden emergency doctrine because Schultz "lost all control" of her van and was unable to respond. Appellant's Br. at 9. We agree.

In all circumstances, negligence necessarily entails conduct, either an act or a failure to act. See Howe v. Young, 16 Ind. 312, 313, 1861 WL 2713 (1861) ("[N]egligence has been defined to consist in the omitting to do something that a reasonable man would do, or the doing something a reasonable man would not do[.]") (citation and quotation marks omitted); Dimmick v. Follis, 123 Ind.App. 701, 708-09, 111 N.E.2d 486, 490 (1953) ("The yardstick for measuring the quantum of care exercised by one confronted by sudden peril can be used only in connection with what he does or fails to do after discovering the danger to which he has been suddenly subjected.") (emphasis added). If one is unable to act or fail to act, then one cannot be negligent.

Schultz testified that she had no control over her van after it was blown off the road. See Tr. at 89. In other words, there is no evidence that Schultz was able to act or fail to act. The Maryland Court of Special Appeals addressed a remarkably similar set of facts in Rustin v. Smith, 104 Md.App. 676, 657 A.2d 412 (1995). In that case, the defendant, Rustin, lost control of his van while driving during a heavy rainstorm. Id. at 414. Rustin testified that the car " `practically took over on its own' " and did not specify what action, if any, he took once he lost control of the van. Id. At trial, Rustin submitted an instruction on the doctrine of sudden emergency, and the trial court refused to give it on the grounds that the evidence did not support it. Id. On appeal, the Maryland Court of Special Appeals held that the trial court properly rejected the sudden emergency instruction, in part, because "there is no evidence that [Rustin] had any options, made any decisions, or took any specific action whatsoever to avoid the collision." Id. at 415. Indeed, the court explained:

At some point in every collision, there is always an emergency. That does not mean that an emergency instruction is always appropriate. An "acts in emergency" instruction in appropriate only where the jury could have determined whether in light of the alternatives available to him, and the time available to him to recognize and evaluate those alternatives, Rustin made a choice that a reasonable, prudent person would make.

Id. (quotations and citation omitted). Here, as in Rustin, the evidence does not support a sudden emergency instruction, and the trial court abused its discretion in giving it. See Nationwide Mut. Ins. Co. v. Neville, 434 N.E.2d 585, 599 (Ind.Ct.App. 1982) ("[I]t is error to give an instruction on an issue not supported by the evidence[.]"), trans. denied; see also Miller v. Porter, 156 Conn. 466, 242 A.2d 744, 746 (1968) (concluding that "if ... there are no claims of proof which show ... an opportunity existed [to choose a course of action after the emergency arose], the court should not charge on the doctrine of sudden emergency"). We must now determine whether this error is harmless.

"Generally, the giving of an instruction which is not relevant to the issues and not applicable to the evidence is error. However, it is grounds for reversal only where it appears that the jury's verdict could have been predicated upon such an instruction." Antcliff v. Datzman, 436 N.E.2d 114, 122 (Ind.Ct.App.1982), trans. denied. Schultz cites Taylor v. Todd, 439 N.E.2d 190 (Ind.Ct.App.1982), to support her contention...