Saral Reed & Durham Sch. Servs., Inc. v. Bethel

• Decision Date: 24 January 2014
• Docket Number: No. 49A02–1301–CT–9.,49A02–1301–CT–9.
• Citation: 2 N.E.3d 98
• Parties: Saral REED and Durham School Services, Inc., Appellants–Defendants, v. Richard BETHEL, Appellee–Plaintiff.
• Court: Indiana Appellate Court

2 N.E.3d 98

Saral REED and Durham School Services, Inc., Appellants–Defendants,

v.Richard BETHEL, Appellee–Plaintiff.

No. 49A02–1301–CT–9.

Court of Appeals of Indiana.

Jan. 24, 2014.

James P. Fieweger, Jeff Shaw Elaine Vullmahn, Williams Montgomery & John, LTD, Chicago, IL, Deborah A. Kapitan, Kopka Pinkus Dolin & Eads, LLC, Crown Point, IN, Attorneys for Appellants.

Jeff Shaw, Ken Nunn Law Office, Bloomington, IN, Bryan H. Babb, Bose McKinney & Evans, LLP, Attorneys for Appellee.

OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Saral Reed (“Reed”) and her employer, Durham School Services, Inc. (“Durham”), (collectively, “the Defendants”) appeal the $3.9 million judgment entered against them in favor of Richard Bethel (“Bethel”) following a jury trial on Bethel's negligence claim against the Defendants. Reed, who was driving a school bus as part of her employment with Durham to provide transportation services for Indianapolis Public School (“IPS”), hit seventeen-year-old Bethel, who was riding his bicycle to school, as the two traveled on West Washington Street in Marion County. On appeal, the Defendants argue that they were denied a fair trial—raising numerous challenges to the admission of evidence and to the conduct of Bethel's counsel during the jury trial—and also challenge the jury's verdict as excessive.

We affirm.

ISSUES

1. Whether the Defendants were deprived of a fair trial.

2. Whether the jury's verdict was excessive.

FACTS¹

The evidence most favorable to the jury's verdict reveals that in September 2010, Reed was driving a school bus as part of her employment with Durham to provide bus transportation services for IPS. Durham and IPS had entered into a contract (“Durham/IPS contract”) for Durham to provide school bus transportation services to IPS for a five-year period from July 1, 2010 to June 30, 2015.

The Durham/IPS contract, and its unredacted admission of all 117 pages into evidence, is a main challenge of the Defendants in this appeal. The Durham/IPS contract had exhibits attached to it that were incorporated into the contract. For example, the Durham/IPS contract contained an IPS solicitation to contractors who were going to make bids to provide bus service for IPS. This solicitation indicated various terms and requirements of IPS for its bus service. The solicitation had a “Liquidated Damages” provision that provided that IPS would assess a fee for any late bus and could assess a maximum late charge of 400% of the daily bus rate. (Bethel's Ex. 12 at 36). The solicitation also provided that the “successful” contractor would be required to “maintain and pay for all Insurance Requirements outlines in EXHIBIT 14 to these specifications, no exceptions.” (Bethel's Ex. 12 at 21). The insurance requirements under Exhibit 14 of the solicitation provided, in relevant part, that a contractor would be required to have $5 million in automobile liability insurance. ( See Bethel's Ex. 12 at 57). Additionally, the Durham/IPS contract provided that Durham “agreed to deliver a Performance Bond in the amount of five million dollars ($5,000,000)” to IPS. (Bethel's Ex. 12 at 4).

Durham's bus base was located on Belmont Avenue. Reed's bus schedule called for her to check into the bus base at 5:35 a.m. and depart the bus base at 5:45 a.m. Reed's assigned bus route was from the base on Belmont Avenue to Oliver Avenue to Warman Avenue to westbound Washington Street followed by a right turn onto Tibbs Avenue. During that school year, Reed had never deviated from her route. If a driver wanted to deviate from the schedule, Durham policy required that the driver first obtain pre-approval. Reed's bus was equipped with a global positioning system (“GPS”).

During this time period, seventeen-year-old Bethel was in his junior year at Ben Davis High School. He rode his bicycle to school every day, traveling first to his girlfriend's house before riding to school. Bethel's daily ride included traveling westbound on Washington Street and then making a left turn onto Tibbs Avenue. As part of Bethel's elective classes at Ben Davis, he had signed up for the elective Marine ROTC class during his sophomore year and was taking the class for a second year during his junior year. Bethel had expressed a desire to enlist in the Marines.

On September 15, 2010, the GPS on Reed's bus showed that she started the bus at the bus base at 5:46:38 a.m. and left the bus base at 5:54:16 a.m. The GPS also indicated that at 6:00:05 a.m., Reed turned her bus from Warman Avenue onto the right lane of Washington Street and was going nineteen miles per hour. After Reed turned, she saw a bicyclist, who was Bethel, riding in front of her in the right lane of westbound Washington Street. Bethel was less than thirty feet in front of Reed's bus. Bethel also noticed Reed's bus behind him, but he was accustomed to seeing it traveling in front of him at that time of the morning. Despite the fact that Reed's assigned route called for her to turn right onto Tibbs Avenue, Reed decided to deviate from her route, pass Bethel in the left lane of Washington Street, and continue straight to Lynhurst Avenue, which was 4.5 miles away from Tibbs. Around this same time, Bethel—who knew that Reed's bus usually turned right onto Tibbs Avenue—decided to make his way into the left lane so that he could go left on Tibbs. Bethel looked back, saw Reed's bus approaching but did not see any turn signals on the bus, made a turn motion with left arm, and then moved to the left. Reed, who had accelerated and also moved to the left lane, then hit Bethel. The GPS on Bethel's bus indicated that the collision occurred at 6:00:35, as this was the time that the GPS showed that the bus went to zero miles per hour.

When Reed's bus stopped, Bethel was under the bus, and the bus's tire was on top of Bethel's left foot. Bethel screamed for help. Reed radioed Durham to report that she had “hit a child[.]” (Tr. 211). Reed then got off the bus and saw that Bethel's “body was up under the bus” and that “the tire was on his leg up under the bus[.]” (Tr. 211). Reed then went back into the bus and drove the bus off Bethel's leg. In doing so, Reed ran over Bethel's right leg, which “snapped[.]” (Tr. 439).

An eyewitness, Kimberly Thompson (“Thompson”), who was traveling eastbound on Washington Street, called 911 to report that “there [was] a bus that just hit a bicycle.” (Bethel's Ex. 17). An ambulance and police responded to the scene. Reed told the responding EMT that she was traveling thirty to forty miles per hour at the time of the impact.

The ambulance transported Bethel to the hospital in critical condition. Bethel was hospitalized for sixteen days as a result of his injuries. Bethel had a fractured right ankle and a “degloving injury” of his left foot, which meant that “his skin basicallywas peeled off, almost like you peel an orange.” (Bethel's Ex. 6 at 13, 14). The degloving injury required Bethel to have a skin graft, requiring multiple surgeries. He also had to have surgery for his right ankle where doctors attached external hardware to his leg. Bethel also suffered a compression fracture in his thoracic spine and a “major laceration” to his spleen. (Bethel's Ex. 6 at 38). Doctors had to perform an “embolization” surgery to stop the bleeding in Bethel's spleen. (Bethel's Ex. 6 at 20).

Durham's general manager, Janet Hoffman (“Hoffman”), and safety supervisor, Itannya Green (“Green”), also went to the collision scene. They then took Reed to have drug testing and retraining that same day, which was Durham's policy when a driver was involved in an accident that was deemed to be “preventable.” (Tr. 411). They, however, determined that Reed's accident was “non-preventable.” (Tr. 419). At trial, Hoffman testified that they had Reed submit to the testing and training because of “the severity of the accident.” (Tr. 353). The day after the collision, Reed filled out a work order, indicating that her turn signals were not working.

Following Bethel's release from the hospital, Bethel had to change the dressings on his wounds. He was also confined to a wheelchair for two to three weeks and had to have physical therapy. Bethel's injuries caused him to miss time from and fall behind at school. One of Bethel's ROTC instructors told Bethel that he would not be able to enlist in the Marine Corp due to his back injury. Bethel's injuries also prevented him from engaging in physical activities as he was accustomed. At trial, a lieutenant colonel from Bethel's ROTC program testified that Bethel had been motivated in the ROTC program. He also testified that prior to the accident, he had no doubts about Bethel's ability to be a good Marine candidate.

On July 11, 2011, Bethel filed a complaint against the Defendants. In his complaint, he alleged that he had received permanent damage as a result of the Defendants' negligence and sought recovery of past and future medical expenses, property damage, lost wages, and “other special expenses[.]” (App.13). More specifically, Bethel alleged that Reed, who was operating the school bus in the course of her employment with Durham, “negligently drove a school bus, causing a collision with a bicycle ridden by” Bethel and that Durham was “liable for damages to [Bethel] for all negligent acts committed by its employee, Saral Reed, in the course of her employment.” (App.13). In the Defendants' answer, they admitted that Reed drove the bus while in the course of her employment with Durham, and they raised as defenses, among others, that Bethel was at fault and that Reed was faced with a sudden emergency.

A jury trial was held on October 16 through October 19, 2012. On the morning of trial, the trial court granted the Defendants' motion in limine to exclude evidence that the Defendants had liability insurance. Bethel's trial theory was that Reed was running late, was trying to make up time so she would not be disciplined by Durham, and hit Bethel from behind as she was...