Nesvig v. Town of Porter

• Decision Date: 08 August 1996
• Docket Number: No. 64A03-9503-CV-80,64A03-9503-CV-80
• Citation: 668 N.E.2d 1276
• Parties: Ronald NESVIG, Appellant, v. TOWN OF PORTER and Barrett Doyle, Appellees.
• Court: Indiana Appellate Court

Page 1276

668 N.E.2d 1276

Ronald NESVIG, Appellant, v. TOWN OF PORTER and Barrett Doyle, Appellees.

No. 64A03-9503-CV-80.

Court of Appeals of Indiana.

Aug. 8, 1996.

Saul I. Ruman, David W. Holub, David M. Hamacher, Ruman, Clements, Tobin & Holub, P.C., Hammond, for Appellant.

Robert J. Konopa, Sean E.G. Kenyon, Konopa & Murphy, P.C., South Bend, for Appellees.

OPINION

STATON, Judge.

Ronald Nesvig ("Nesvig") appeals from a judgment following a jury trial against him and in favor of the Town of Porter ("the Town") and Barrett Doyle ("Doyle"). Nesvig raises seven issues for appellate review which we consolidate into five and restate as follows:

I. Whether the trial court erred in denying his motion for partial summary judgment on the issue of contributory negligence based upon Nesvig's intoxication at the time of the accident.

II. Whether the trial court erred in granting the Town and Doyle's motion for judgment on the evidence on the issue of Doyle's willful and wanton misconduct.

III. Whether the trial court erred in granting the Town and Doyle's motion in limine to exclude evidence of Doyle's operation of a commercial vehicle without a proper license.

IV. Whether the trial court erred in refusing portions of Nesvig's tendered jury instructions.

V. Whether the trial court erred in denying Nesvig's motion to correct error regarding bailiff misconduct during jury deliberations.

We affirm.

The facts most favorable to the judgment reveal that on the evening of January 4, 1991, Nesvig went out for dinner and alcoholic drinks at a local restaurant. Around midnight, he returned to his apartment with a friend and consumed more alcohol until he fell asleep at approximately 4:00 or 5:00 that morning. A few hours later, Nesvig awoke and left his apartment for work. He walked to Glacier Trail and then walked on the eastern edge of the road en route to his car.

During the course of his walk, he passed and greeted Father Mariano Vita who was shoveling snow which had fallen the previous night. At the same time, a Town of Porter snowplow operated by Doyle came down the road, removing snow to the east side of the street. After waving to and passing Father Vita and Nesvig, Doyle reached the end of the road. Because Glacier Trail was a narrow dead-end roadway, Doyle could not turn the snowplow around; instead, he lifted the plow blade and put the snowplow in reverse in order to back down the road. While in reverse, the snowplow's automatic beeper alarm activated. Doyle then checked his mirrors, saw no one in his path, and began to back down the street. While backing up, the snowplow struck and ran over Nesvig causing him severe injury. Nesvig was taken to a local hospital where a blood alcohol test was taken that revealed a blood alcohol content of .20%, and from which it was estimated that his blood alcohol content at the time of the accident was approximately between .192% and .212% In February 1992, Nesvig filed a complaint for damages against the Town and Doyle. In June 1994, Nesvig filed a motion in limine requesting the court exclude evidence of his blood alcohol level and a motion for partial summary judgment on the issue of contributory negligence. The next day, the Town and Doyle filed a motion in limine requesting the trial court exclude evidence: (1) of Doyle's lack of commercial driver's license; (2) that Nesvig's blood alcohol content decreased after the accident; and (3) of the investigating police officers' conclusions that the collision was caused by Doyle. Nesvig also filed a motion to strike defendants' expert witness. On July 13, 1994, the trial court issued an order on the pending motions, denying Nesvig's motion for partial summary judgment and motion in limine regarding Nesvig's blood alcohol content, granting the Town and Doyle's motion in limine regarding the commercial driver's license, and denying Nesvig's motion to strike defendants' expert witness.

A jury trial was held and at the end of Nesvig's case, the Town and Doyle moved for judgment on the evidence pursuant to IND. TRIAL RULE 50 arguing that Nesvig had failed to present any evidence of wanton and willful misconduct on their behalf. The trial court granted the motion. The trial resumed and on July 21, 1994, the jury returned a verdict for the Town and Doyle. On August 22, 1994, Nesvig filed a motion to correct error alleging that the bailiff engaged in misconduct when he responded to a jury question during deliberations regarding the verdict forms. After hearing arguments from counsel, the trial court denied the motion. This appeal ensued.

I. Summary Judgment--Contributory Negligence

First, Nesvig contends that the trial court erred in denying his motion for partial summary judgment on the issue of his contributory negligence with regard to his blood alcohol content at the time of the accident.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. IND. TRIAL RULE 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), reh. denied, trans. denied. We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).

Nesvig argues that the trial court erred in denying his motion for partial summary judgment on the defense of contributory negligence. Nesvig contends that the Town and Doyle failed to show that the evidence of his blood alcohol content was indicative of any negligent conduct and that this conduct was the proximate cause of his injuries.

Initially, we note that Nesvig's action is against a governmental entity and its agent and is governed by the law of contributory negligence. IND.CODE § 34-4-33-8 (1993). A finding of contributory negligence on the part of a plaintiff operates as a complete bar to recovery and is independent of any negligence on the part of the defendant. Blackburn v. City of Rochester, 640 N.E.2d 1068, 1070 (Ind.Ct.App.1994); Bailey v. Martz, 488 N.E.2d 716, 721 (Ind.Ct.App.1986), reh. denied, trans. denied.

Contributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise. Brown v. Northern Ind. Public Service Co., 496 N.E.2d 794, 798 (Ind.Ct.App.1986), reh. denied, trans. denied. The issue of contributory negligence is generally a question of fact for the jury unless the facts are undisputed and only a single inference can be drawn therefrom. Schneider v. Wilson, 521 N.E.2d 1341, 1344 (Ind.Ct.App.1988).

In examining the issue of contributory negligence with regard to intoxicated persons, this court has noted that for the intoxication to be actionable in negligence it must be the proximate cause of the injury. Colaw v. Nicholson, 450 N.E.2d 1023, 1026 (Ind.Ct.App.1983)(examining contributory negligence of passenger in automobile). Thus, in order for an intoxicated person to be deemed contributorily negligent, not only must the intoxication lead to negligent conduct, this conduct must also be the proximate cause of the party's injuries. See Schneider, supra. Causation, like contributory negligence, is generally a question for the trier of fact and is not answerable as a matter of law. Id.

Nesvig argues that the Town and Doyle failed to present any evidence that he acted negligently and thus, the defense of contributory negligence cannot stand. Nesvig focuses his argument on the notion that intoxication, by itself, does not constitute negligent conduct, and therefore, the defense of contributory negligence was unavailable. However, under the doctrine of contributory negligence, the issue is whether the plaintiff failed to exercise ordinary care for his safety under the circumstances. See Brown, supra. Our inquiry rests with Nesvig's conduct as it relates to the incident in question, not merely on the issue of his intoxication; instead Nesvig's intoxication is a consideration in determining whether he engaged in negligent conduct.

IND.CODE § 9-21-17-14 (1993) ¹ provides that if neither a sidewalk nor a shoulder is available, a pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway. IND.CODE § 9-21-17-15 (1993) ² states that a pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway. Coincidentally IND.CODE § 9-21-8-37 (1993) ³ indicates that a person who drives a vehicle shall: (1) exercise due care to avoid colliding with a pedestrian; (2) exercise proper caution upon observing a child or an obviously confused, incapacitated, or intoxicated person.

In addition to our statutory law, this court has stated that all drivers are under a common law duty to maintain a proper lookout while traveling on the roadways. Springman by Springman v. Hall, 642 N.E.2d 521, 523 (Ind.Ct.App.1994). Correspondingly, a pedestrian has no right to proceed heedlessly across a street without exercising ordinary care for his own safety. Kilmer v. Galbreth, 139 Ind.App. 252, 218 N.E.2d 361, 367 (1966), reh. denied. A...