Osmulski v. Becze

• Decision Date: 10 August 1994
• Docket Number: No. 45A03-9307-CV-224,45A03-9307-CV-224
• Citation: 638 N.E.2d 828
• Parties: Lori M. OSMULSKI, Appellant-Defendant, v. Charles BECZE, Individually and as Administrator of the Estate of Martha Becze, Deceased, Appellee-Plaintiff, and Northern Indiana Public Service Company, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 828

638 N.E.2d 828

Lori M. OSMULSKI, Appellant-Defendant, v. Charles BECZE, Individually and as Administrator of the

Estate of Martha Becze, Deceased, Appellee-Plaintiff,

and Northern Indiana Public Service Company, Appellee-Defendant.

No. 45A03-9307-CV-224.

Court of Appeals of Indiana,

Third District.

Aug. 10, 1994.

Kenneth M. Wilk, Nancy Townsend Beggs, Highland, Paul A. Rake, John McCrum, Hammond, for appellant.

Kenneth J. Allen, Gregory M. Bokota, Allen & Sarkisian, Merrillville, for appellee.

GARRARD, Judge.

Lori M. Osmulski (Osmulski) appeals the judgment entered upon a jury verdict against her as a result of a negligence action brought by Charles Becze (Becze), individually and as the administrator of the estate of Martha Becze. ¹

FACTS

This case arose as a result of an accident occurring on January 12, 1988, in Griffith, Indiana. At approximately 5:15 p.m., a pick-up truck driven by Osmulski struck Martha Becze as she was attempting to cross Ridge Road. Martha Becze subsequently died from the injuries she sustained in the accident. In addition, there was evidence that the streetlight at the intersection was not working at the time of the accident.

After a jury trial, a judgment was entered against Osmulski in the amount of $211,200.00. ² Osmulski's motion to correct errors was denied, and she now appeals. We will discuss additional facts as needed.

ISSUES AND DISCUSSION

Osmulski raises several issues for review, which we address as follows:

I. Whether the trial court erred in denying Osmulski's motion for a change of venue.

II. Whether Osmulski was prejudiced by the admission of allegedly improper expert testimony.

III. Whether the trial court utilized an improper mortality table in its instructions to the jury.

IV. Whether the trial court erred in denying Osmulski's motion for summary judgment.

V. Whether the jury's verdict was excessive.

ISSUE I

Osmulski first contends that the trial court erred in denying her motion for a change of venue under Indiana Trial Rule 76 on the basis that the rule as applied to civil cases filed in Lake County violates the Equal Protection Clause of the Fourteenth Amendment. We disagree. ³

Prior to February 1, 1992, T.R. 76 provided one automatic change of venue from a county upon a proper and timely motion. T.R. 76 provided in relevant part:

(1) In all civil actions, except those to enforce a statute defining an infraction, where the venue may now be changed The mandatory nature of the rule was designed to guarantee a fair and impartial trial, and the failure to grant a timely motion constituted reversible error. Cooley v. Koetter Woodworking, Inc. (1993), Ind.App., 607 N.E.2d 975, 977.

from the judge or the county, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney.

Becze objected to Osmulski's motion for change of venue, arguing that T.R. 76 as applied to civil cases filed in Lake County violates the Equal Protection Clause of the Fourteenth Amendment. The trial court agreed, and entered extensive findings of fact and conclusions in support of its decision.

More than a century ago, the United States Supreme Court decided that the state denies a defendant equal protection of the law when it places him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia (1879), 10 Otto 303, 100 U.S. 303, 25 L.Ed. 664. In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the state from exercising its peremptory challenges to exclude members of the defendant's race from the petit jury. Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. In subsequent rulings, the Court has extended Batson, finding it applicable to civil cases and holding that a litigant may raise a Batson claim regardless of his race. See Powers v. Ohio (1991), 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (a criminal defendant may object to the use of a peremptory challenge to exclude jurors based on their race whether or not the defendant and the excluded jurors share the same race); Edmonson v. Leesville Concrete Co., Inc. (1991), 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (the race-based exclusion of jurors by a private litigant in a civil case violates the equal protection rights of the challenged jurors). The decisions in Powers and Edmonson are rooted in the basic notion, also articulated in Batson, that the denial of the opportunity to participate in jury service on account of one's race not only injures a defendant but also unconstitutionally discriminates against the excluded juror. This harm goes beyond the defendant and excluded juror to touch the entire community, as "[s]election procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson, 476 U.S. at 87, 106 S.Ct. at 1718 (citations omitted). Powers emphasized the importance of the opportunity for citizens to participate in the administration of justice:

Jury service preserves the democratic element of the law, as it guards the rights of the parties and insures continued acceptance of the laws by all of the people.... It 'affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.' ... Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.

Powers, 499 U.S. at 407, 111 S.Ct. at 1369 (citations omitted).

Osmulski contends that this court has already considered and rejected a constitutional challenge to T.R. 76 in Piwowar v. Washington Lumber & Coal Co. (1980), Ind.App., 405 N.E.2d 576. However, Piwowar was decided well before Batson and its progeny. Therefore we deem it necessary to re-examine the constitutional issues raised in light of new Supreme Court precedent.

The trial court made numerous findings of fact, none of which are disputed by Osmulski, in support of its conclusion that T.R. 76 is unconstitutional as applied to civil cases filed in Lake County. The court found that African-Americans comprise approximately twenty-five percent of the general population of Lake County, and that the venire from which Lake County jurors are randomly selected has approximately the same racial composition. Yet in each of the three counties to which a case from Lake County might be venued, African-Americans constitute less than one percent of the general In its conclusions, the trial court analogized the automatic change of venue from Lake County to an "exhaustive peremptory challenge," in that it effectively strikes all prospective African-American jurors from the venire without any type of race-neutral explanation. We agree and conclude that Batson provides the appropriate analytical framework for determining the constitutionality of T.R. 76, as the end result, the exclusion of African-Americans from jury service, is the same whether a peremptory challenge or an automatic change of venue, as utilized in this case, is the tool employed.

                population. 4  Affidavits from the presiding judges in Porter, Newton and Jasper counties stated that in the last 568 jury trials held in these counties, only two African-Americans have served as jurors. 5  The trial court also found that, if Becze took a change of venue from Porter, Newton or Jasper counties, the racial composition of the general population of those counties to which venue could be perfected is similarly devoid of African-Americans, with the exception of LaPorte County.  Finally, the court took judicial notice of the fact that defense firms routinely seek change of venue from Lake County, which was admitted by counsel at the hearing on the change of venue motion.  The findings entered by the trial court were adequately supported by the evidence presented, including census data and the affidavits of trial court judges
                

Initially, we must determine whether the exercise of the automatic change of venue constitutes state action and whether Becze had standing to assert the equal protection rights of the excluded jurors. We find the reasoning set forth in Edmonson, which held that a civil litigant exercising a peremptory challenge was acting pursuant to a course of state action, to be applicable. Under the state action analysis, we first ask whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority. Edmonson, 500 U.S. at 618-22, 111 S.Ct. at 2082-83. Next, we must determine whether the private party charged with the deprivation could be described in all fairness as a state actor. Id. at 620, 111 S.Ct. at 2083. Clearly, Osmulski, in filing her motion for change of venue, was exercising a privilege having its source in state authority: the Indiana Rules of Trial Procedure. In analyzing the second part of the inquiry, it is relevant to examine the extent to which the actor relies on government assistance and benefits. Id. Clearly, without the "overt, significant participation of the government," the court system and procedural rules utilized by Osmulski would not exist. See Id. 500 U.S. at 622, 111 S.Ct. at 2084. We find that Osmulski's motion for an automatic change of venue was pursuant to a course of state action and therefore subject to the dictates of the Constitution.

Further, under Powers, we conclude that Becze had standing to assert the equal protection rights of the excluded jurors. A Having determined that Osmulski filed her motion for change of venue pursuant to a course of state action and that Becze had standing to raise the equal protection rights of the excluded jurors, we now apply the dictates of Batson to the case at hand. After a litigant has established a prima...