State Through Highway Dept. v. Snyder

• Decision Date: 30 June 1992
• Docket Number: No. 91S02-9206-CV-522,91S02-9206-CV-522
• Citation: 594 N.E.2d 783
• Parties: STATE of Indiana, through Its HIGHWAY DEPARTMENT, Appellant (Defendant Below), v. Ronald E. SNYDER and Betty M. Snyder in their capacity as Co-Guardians of Dan E. Snyder, an Adult Incompetent, Appellees (Plaintiffs Below), Toby L. Parker, (Defendant Below).
• Court: Indiana Supreme Court

Page 783

594 N.E.2d 783

STATE of Indiana, through Its HIGHWAY DEPARTMENT, Appellant (Defendant Below), v. Ronald E. SNYDER and Betty M. Snyder in their capacity as Co-Guardians of Dan E. Snyder, an Adult Incompetent, Appellees (Plaintiffs Below) Toby L. Parker, (Defendant Below).

No. 91S02-9206-CV-522.

Supreme Court of Indiana.

June 30, 1992.

Linley E. Pearson, Atty. Gen., Stephen C. McNutt, Deputy Atty. Gen., Indianapolis, for appellant.

Brent E. Clary, Roger Wm. Bennett, Bennett Boehning Poynter & Clary, Lafayette, Roger Miller, Miller & Martin, Frankfort, for appellees.

ON PETITION TO TRANSFER

KRAHULIK, Justice.

Ronald E. Snyder and Betty M. Snyder, in their capacity as Co-Guardians of Dan E. Snyder (Plaintiffs-Appellees below), seek transfer after the Court of Appeals reversed a judgment entered, following a jury trial, in their favor and against the State of Indiana (Defendant-Appellant below). State v. Snyder (1991), Ind.App., 570 N.E.2d 947. We grant transfer and address the following issues:

(1) Whether the State waived its objection to inconsistent verdicts;

(2) Whether the jury returned inconsistent verdicts;

(3) Whether the trial court erred in admitting certain photographs; and

(4) Whether the trial court properly assessed costs against the State.

I. Facts

While hitchhiking on November 9, 1985, Dan Snyder ("Snyder") accepted a ride from Toby Parker and Jeff Price. An accident occurred when the automobile, driven by Parker, was forced off the road by an approaching car that appeared to be on Parker's side of the road. Once off the roadway, the difference in the height of the road and the shoulder (the "lip") prevented Parker from returning the automobile to the roadway. Parker's vehicle ultimately struck a utility pole. Snyder suffered brain injuries and has since been made the ward of his parents. Price was killed. Snyder brought suit against Parker alleging willful and wanton conduct in the operation of the automobile and against the State for negligent construction and maintenance of the lip. Both Snyder and Parker had consumed alcohol before the accident, and there was evidence at trial to support the conclusion that Snyder was aware of Parker's condition.

Snyder's action against Parker was tried pursuant to the Comparative Fault Act, Ind.Code Sec. 34-4-33-1 et seq. In that action, the jury found in favor of Parker and against Snyder, and returned a verdict form indicating that Snyder was more than fifty per cent at fault. As to the State, the jury returned a verdict in favor of Snyder and against the State, and awarded damages in the amount of $1,000,000. On the State's motion, this amount was reduced to $300,000 in accordance with Ind.Code Sec. 34-4-16.5-4. Judgment was entered on these verdicts, and the State appealed.

On appeal, the State claimed the verdicts were inconsistent because the jury found Snyder more than fifty per cent at fault in his action against Price but did not find Snyder contributorily negligent in his action against the State. No one appealed from the judgment entered in Snyder's action against Parker. The Court of Appeals agreed that the verdicts were inconsistent and ordered a new trial on both of Snyder's claims, the one against the State and the one against Parker. For the reasons outlined below, we grant transfer and reinstate the trial court's judgment.

II. Waiver

Snyder argues that the State has waived any argument that the verdicts are inconsistent because the State failed to make a timely objection. Contrary to the assertions in Snyder's petition, however, the record discloses that the State did object to the court's verdict forms before they were submitted to the jury, in part on the grounds that the forms might lead to an inconsistent verdict. ¹ The trial court overruled this objection, rejected the proposed verdict forms submitted by the State, and tendered its own forms to the jury. The State made no objection to the verdicts returned by the jury before its members were excused.

Snyder asserts that it was incumbent upon the State to object to the form of the verdicts immediately after they were returned so that the trial court could instruct the jury to resume deliberations, thus enabling a proper verdict to be reached without the burden and expense of a new trial. Although we agree that the State might have objected to the verdicts at the time they were returned, the failure of the State to do so does not constitute a waiver of its right to have this issue decided on appeal.

The cases cited by Snyder in support of the waiver theory are distinguishable from the facts here. DDR Computer Serv. Bureau, Inc. v. Davis (1980), Ind.App., 411 N.E.2d 722, and Nicholson's Mobile Home Sales, Inc. v. Schramm (1975), 164 Ind.App. 598, 330 N.E.2d 785, and Wolff v. Slusher (1974), 161 Ind.App. 182, 314 N.E.2d 758, involved situations where the complaining party made no objection at any time to the verdict forms. By comparison, here, the State objected to the jury forms before they were submitted to the jury on the grounds that it provided the possibility for inconsistent verdicts, and submitted its own proposed forms.

Under these circumstances, this issue of inconsistent verdicts was not waived and we will address the merits.

III. Inconsistent Verdicts

The State argues that the verdicts were inconsistent because, under common law concepts of contributory negligence, the jury's finding Snyder at fault with respect to his claim against Parker would automatically preclude a recovery against the State. The Court of Appeals agreed. 570 N.E.2d at 949. The State insists that the language on the verdict forms used here must be considered and is controlling. In essence, the State invites us to treat the verdict form returned in Snyder's claim against Parker as a special verdict or interrogatory to be compared to the general verdict returned by the jury in Snyder's claim against the State. We decline this invitation.

Special verdicts and interrogatories were eliminated by Indiana Trial Rule 49. Thus, the verdict in Snyder's claim against Parker cannot be considered by us as a special verdict or interrogatory. We acknowledge that the statutory scheme of the Comparative Fault Act requires that several verdict forms be given to the jury. We view this as an attempt by the legislature to prescribe a procedure by which the jury might be guided through the process of determining fault and assessing damages, and we do not intend to discourage the use of these forms in assisting the jury to properly determine fault and award damages in controversies tried under the Comparative Fault Act. However, we will not consider such verdict forms to be special verdicts or interrogatories. We hold that such forms as are prescribed by the Act will be treated as general verdicts and may not be used to impeach the general verdict returned here in favor of Snyder and against the State.

Snyder's claim against Parker was governed by the Comparative Fault Act, and Snyder's claim against the State was governed by principles of common law negligence. Because the legal theories under which the two claims were prosecuted are not consistent, we will not reverse the judgments entered pursuant to these legal theories merely because such verdicts may appear to be inconsistent. This case illustrates the difficulty encountered when claims premised on the Comparative Fault Act principles are prosecuted in the same actions as claims against entities exempted from the Comparative Fault Act. The Comparative Fault Act provides for defenses which do not necessarily duplicate those allowed in traditional common law negligence actions. This is apparent in the context of the defense of incurred risk. At common law, a plaintiff who incurred the risk was barred from any recovery because, having deliberately engaged in a course of conduct with knowledge and appreciation of the specific risks involved, he accepted the entire risk of injury without regard to whether he exercised due care in deciding to encounter the risk. Kroger Co. v. Haun (1978), 177 Ind.App. 403, 408-410, 379 N.E.2d 1004, 1008. Thus, even if the defendant had breached the duty of exercising reasonable care toward the plaintiff, the plaintiff was aware of the risk of such a breach and voluntarily chose to encounter it. No recovery was allowed in such instances.

Under the Comparative Fault Act, however, plaintiff's incurred risk is considered as "fault" and is to be compared to other fault contributing to the accident. Thus, although at common law a plaintiff would have incurred the risk of the entire accident, under the Comparative Fault Act, the plaintiff has no longer incurred the entire risk but, theoretically, only a portion of it. Accordingly, comparing incurred risk under the Act with incurred risk at common law is a comparison of two distinct legal theories.

By exempting the State from the Comparative Fault Act, the legislature has created separate rules to be applied in a single negligence action based upon the legal status of the parties. This, in turn, has raised questions concerning how to keep jury confusion to a minimum and fairness to a maximum. See e.g. Huffman v. Monroe County Comm. Sch. Corp. (1992), Ind., 588 N.E.2d 1264, 1267, where we stated that "[t]o apply two separate rules based on the legal status of the parties would serve to add further confusion to the orderly administration of justice in cases where, as here, some parties are covered by the Comparative Fault Act and others are not. Although we cannot end all of the confusion created by this predicament in one case, we refuse to add to it by imposing two conflicting rules of law...." See also Symposium on Indiana's Comparative Fault Act, 17 Ind.L.Rev. 687 (1984). Requiring that there be perfect symmetry among verdicts in such cases does nothing but add to this confusion because, as the discussion concerning incurred risk illustrates, the court would, in...