Maldonado by Maldonado v. Gill

• Decision Date: 29 January 1987
• Docket Number: No. 3-1085-A-285,3-1085-A-285
• Citation: 502 N.E.2d 1371
• Parties: Domingo MALDONADO, Jr., a minor, by his mother and next friend, Rose MALDONADO and Rose Maldonado and Domingo Maldonado, Appellants (Plaintiffs Below), v. Alton GILL, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1371

502 N.E.2d 1371

Domingo MALDONADO, Jr., a minor, by his mother and next

friend, Rose MALDONADO and Rose Maldonado and Domingo Maldonado, Appellants (Plaintiffs Below), v. Alton GILL, Appellee (Defendant Below).

No. 3-1085-A-285.

Court of Appeals of Indiana,

Third District.

Jan. 29, 1987.

Rehearing Denied Mar. 23, 1987.

Delmar P. Kuchaes, Chudom & Meyer, Schereville, for appellants.

Jay A. Charon, Kathleen M. Maicher, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellee.

STATON, Judge.

In the late afternoon of June 28, 1979, eight year old Domingo Maldonado, Jr. (Domingo) was struck by a car as he attempted to cross the street in front of his home. As a result of this accident, Domingo received serious injuries to his leg requiring repeated periods of hospitalization. Domingo and his parents brought an action against Alton Gill (Alton), the alleged driver of the car involved in the accident.

During the jury trial, at the close of Domingo's case in chief, the trial court granted Alton's Indiana Rules of Procedure, Trial Rule 50 motion for judgment on the evidence. The trial court held that Domingo did not introduce any evidence that Alton was the driver of the car that struck him and concluded that he did not sustain his claim. Too, the trial court held that Domingo was contributorily negligent.

The issues we must address are as follows:

(1) Was the evidence sufficient to establish that Alton was the driver of the automobile that struck Domingo,

(2) Was Domingo contributorily negligent; and

(3) Did the trial court erroneously exclude the testimony of one of Domingo's witnesses because that witness failed to attend a deposition noticed by Alton.

Reversed.

I. Driver's Identity

Our task in reviewing the first challenge to the trial court's action is to consider evidence from a perspective which is most favorable to the nonmovant, in this case, Domingo. After viewing the evidence this way, along with all reasonable inferences drawn therefrom, we must determine whether there is evidence of probative value to support each element of the claim to justify its submission to the jury. Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 79.

In his opening statement, Gill's counsel intimated that Alton was driving the car that struck Domingo. Domingo argues that these statements are admissions of fact that identify Alton as the driver of the car that struck him. Although Alton's counsel points out that his opening statement did not contain an admission that Alton was a negligent driver, the only admission Domingo argued for is the fact that Alton was the driver.

In Lystarczyk v. Smits (1982), Ind.App., 435 N.E.2d 1011 (Hoffman, J., concurring), this Court addressed the issue of attorney's remarks during opening statement. In that case, we held that an attorney can make an admission during opening statement that is binding upon his client and relieves the opposing party of the duty to present evidence on that issue. A mere outline of anticipated proof, however, is not to be regarded as a binding admission; nor is a statement which contains ambiguities or doubt. Id. at 1014.

In the instant case, our review of the opening statement reveals that the attorney's remarks did not ambiguously identify Alton as being the driver of the car, nor do we regard this fact to be part of anticipated proof. From the attorney's remarks, it was clear that Alton was the driver of the car that struck Domingo, and it was error for the trial court to rule that he did not sustain the burden of proof of this element of his claim. State v. Lewis (1982), Ind., 429 N.E.2d 1110, 1114, cert. den., 457 U.S. 1118, 102 S.Ct. 2921, 73 L.Ed.2d 1331 (to properly grant a T.R. 50 motion there must be a complete failure of proof of a material element).

II. Contributory Negligence

Our review of the evidence most favorable from Domingo's perspective, as called for by the teachings in Whisman, supra, 470 N.E.2d at 79, is that he looked both ways before stepping out into the street from in-between two parked cars. ¹

The trial court in the case at bar ruled that, as a matter of law, Domingo was contributorily negligent. This ruling was based on Smith v. Diamond (1981), Ind.App. 421 N.E.2d 1172, 1175 (judgment on the evidence is appropriate where, based on undisputed facts, a plaintiff virtually admits his own negligence). In Smith, a child who was struck by a car looked to the left and saw a car, waited for it to pass, and then proceeded across the street without looking to his right. Id. at 1174. The child in Smith stated that he did not look in the direction of the oncoming car before starting to cross. This is not what happened in the instant case.

Here, there was evidence that Domingo looked both ways before starting across the street. Jimmy Maldonado testified that the car that struck his brother failed to stop at a stop sign a short distance from the accident site, and it was traveling fast when it struck Domingo. The impact knocked the boy "about three houses down." (R. 233). Given that evidence, it was error for the trial court to hold, based on Smith, that Domingo was contributorily negligent as a matter of law. In Smith the child admitted his negligence, whereas in the case at bar there is no such admission. In our view, the uncontroverted evidence that Domingo stopped and looked before attempting to cross the street is...