Prange v. Martin

• Decision Date: 02 March 1994
• Docket Number: No. 20A03-9211-CV-367,20A03-9211-CV-367
• Citation: 629 N.E.2d 915
• Parties: Betty A. PRANGE, Appellant-Defendant Below, v. Pamela J. MARTIN, Appellee-Plaintiff Below, Maribeth Ekstrand, Appellee-Defendant Below.
• Court: Indiana Appellate Court

Page 915

629 N.E.2d 915

Betty A. PRANGE, Appellant-Defendant Below, v. Pamela J. MARTIN, Appellee-Plaintiff Below Maribeth Ekstrand, Appellee-Defendant Below.

No. 20A03-9211-CV-367.

Court of Appeals of Indiana Fourth District.

March 2, 1994.

Rehearing Denied May 12, 1994.

James H. Pankow, Jones, Obenchain, Ford, Pankow & Lewis, South Bend, for appellant.

James F. Groves, William T. Webb, Hardig, Lee & Groves, South Bend, for Pamela J. Martin.

Robert J. Palmer, Wendell W. Walsh, May, Oberfell & Lorber, South Bend, for Maribeth Ekstrand.

MILLER, Judge.

At about 8:00 p.m. on October 21, 1988, a car driven by Betty A. Prange, age 67, ran a stop sign at the intersection of Cleveland Road and Bittersweet Road in St. Joseph Following a three day trial, on May 29, 1992, the jury found that Prange was solely responsible for the accident and awarded Pamela $1,325,000 in damages. Prange asks us to reverse and remand for a new trial because: (1) the trial court erred in instructing the jury; (2) the trial court erroneously admitted opinion testimony by a police officer; and (3) the damage award was based upon passion, prejudice, sympathy or consideration of attorney fees as an element of damages. Ekstrand cross-appeals and claims her motion for judgment on the evidence should have been granted.

County. Prange's car struck a car driven by Maribeth Ekstrand, then spun out of control and struck a third car owned by Pamela Martin and driven by Ralph Irvin. Pamela was sitting in the back seat directly behind Ralph. Prange's car hit the Martin car on the driver's side. Pamela was injured and trapped in her car. Pamela sued Prange and Ekstrand alleging negligence on both their parts and seeking damages for her past and future: Medical expenses, lost wages, and pain and suffering.

We affirm the jury's verdict. Therefore, Ekstrand's claim is moot.

DECISION

I. JURY INSTRUCTIONS

A. Instruction No. 12

The trial court gave Final Instruction No. 12 over Prange's objection. Final Instruction No. 12 states: "A motorist has the right to assume that the other person will obey the law and will exercise due care and reasonable care." R. 124. Prange claimed that the instruction was incomplete because it did not contain the phrase "absent notice to the contrary." ¹ In other words, Prange objected on the basis that a driver does not have a right to assume that another will comply with the law if the negligence is so apparent as to apprise a driver of impending danger. Prange's proposed addition of "absent notice to the contrary," however, does not adequately convey that meaning because the word "notice" is vague and connotes multiple meanings. For instance, does the word "notice" mean that a motorist may not assume the other will act with reasonable care if the other's negligence is possible? ... likely? ... apparent? ... fully appreciated? Must the "notice" be from personal observation, or does it include a warning from a third party? In the present context, it is unclear what "notice" is, and as a result, what is the corresponding right of the motorist.

The language at issue--"notice to the contrary"--appeared in Brock v. Walton (1983), Ind.App., 456 N.E.2d 1087, which was not an instruction case. It is well settled that merely because certain language appears in an opinion, that language is not necessarily proper for a jury instruction. Hare v. State (1984), Ind., 467 N.E.2d 7, 16. What is more persuasive, however, is that fact that the case relied upon by Brock, Smith v. Insurance Company of North America (1980), Ind.App., 411 N.E.2d 638, cautions that "notice" must encompass more than just mere knowledge of a condition. In concluding that giving a res ipsa instruction was proper even in light of the fact that the plaintiff saw the defendant's unattended trash fire moments before the fire spread to, and destroyed plaintiff's property, the Smith court stated:

[u]nless a party has notice to the contrary, he has the right to assume others who owe him a duty of reasonable care will exercise such care. It is not mere knowledge of the condition, i.e., fire on the ground, which will charge a party with negligence; he must also appreciate the peril.

Id. at 641 (citations omitted). Therefore, even if a motorist has "notice" of another's negligence, the motorist must also recognize the peril that negligence creates.

It is important to note that the issue before the jury was not whether Ekstrand had notice that Prange was not going to stop, but whether Ekstrand, based upon all the facts and circumstances, acted as a reasonably prudent person would have acted. See part B, infra. Prange's proposed addition to Instruction No. 12 was an attempt to instruct the jury that they must consider whether Ekstrand acted reasonably under all the facts and circumstances. While the trial court properly refused Prange's proposed addition because the language was vague and confusing, the substance of Prange's proposed addition to Instruction No. 12 was adequately covered by other instructions. ² We will not reverse the trial court for failing to give the best possible instructions and will affirm as long as the trial court gave instructions which adequately and correctly stated the law. Underly v. Advance Machine Company (1993), Ind.App., 605 N.E.2d 1186, 1191 reh'g denied, trans. denied. Read as a whole, the instructions given by the trial court properly advised the jury of the law.

B. Prange's Seven (7) Rejected Instructions

Prange claims the trial court erred by rejecting seven (7) of her tendered instructions. ³ We disagree. First, we must look at Final Instruction No. 2 which included the contentions of the parties (the parties conceded that plaintiff Martin was not negligent). The jury was instructed that Prange:

denies fault and contends that fault of [Ekstrand] proximately caused the accident in question in that [Ekstrand] failed to maintain a reasonable lookout after seeing the Prange vehicle approach and enter into the intersection at a time such movement could not be made with reasonable safety.

R. 113-114 (emphasis added). The court then informed the jury in Instruction No. 3 that the contentions of the parties are "the formal way of presenting the issues for trial" and that although the contentions are not evidence, "any admission of fact contained in the contentions may be accepted as true." R. 115. Neither Prange nor Ekstrand added to nor objected to the above and accepted the issues as stated by the court. It is well established that an instruction, given without objection, becomes the law of the case. Nelson v. Metcalf (1982), Ind.App., 435 N.E.2d 39, 41; Royer v. Pryor (1981), Ind.App., 427 N.E.2d 1112, 1115. As such, it is the standard by which we review the case--the obvious reason being to prevent the appealing party from changing the theory of his case after trial.

Prange's contention contained within the instructions given to the jury without objection--i.e., that Ekstrand saw Prange approach and enter into the intersection--is the law of the case on review. ⁴ Thus the issue for the jury's consideration, as agreed upon by the parties in Final Instruction No. 2, was whether Ekstrand acted as a reasonably prudent person after seeing Prange approach and enter the intersection. Final Instruction No. 2 eliminated the issue of whether Ekstrand maintained a lookout (Prange's tendered instruction No 3). The trial court did not err in rejecting Prange's tendered instruction No. 3.

Furthermore, because Prange did not object that the instructions given by the trial court were incomplete (except for Final Instruction No. 12), she cannot now weave that claim in with her assertion that the trial court erred in refusing her tendered instructions. This court addressed a situation similar to the instant case in Gemmer v. Anthony Wayne Bank (1979) 181 Ind.App. 379, 391 N.E.2d 1185, reh'g denied. We quoted the court in State Farm Mutual Auto Ins. Co. v. Shuman (1977), 175 Ind.App. 186, 370 N.E.2d 941, 956, thus:

We are faced here with a situation in which a party's assertion of error regarding the refusal of a tendered instruction is predicated on a challenge to the court's instructions as erroneous. Under these circumstances. the complaining party should be required to make a specific objection to those instructions given by the court which disagree with or contradict the requested charge. A party may not sit by and allow error to be committed and then attempt to take advantage of that error. (Citation omitted) (emphasis added).

The Gemmer court then concluded:

Where the argument, on appeal, of error in refusing a tendered instruction is based on an alleged inadequacy of the instructions actually given, to which the inadequacy no objection was made, we are tempted to think that either the theory was an afterthought or the error was hoped to be taken advantage of. We will not allow Trial Rule 51(C) to be circumvented by permitting a party to preserve error by merely tendering a contradictory instruction instead of making a specific objection to a given instruction, and arguing later any theory that comes to mind. (Emphasis added).

Gemmer, supra, 391 N.E.2d at 1187. Final Instruction Nos. 2 and 3 were given to the jury without objection. Prange cannot now complain that she was not allowed to instruct the jury on her theory of the case when she submitted a different issue to the jury. If there is any error present here, Prange has waived it by failing to make a specific objection to the instructions as given by the court.

The remainder of the tendered instructions are specific--addressing the conduct that is expected of a motorist in a given set of facts, however they merely repeat material adequately covered by other instructions--i.e., that negligence is the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances. ⁵ The substance of Prange's tendered instructions are contained...