State v. Bouras, 1-380A57

Decision Date29 July 1981
Docket NumberNo. 1-380A57,1-380A57
Citation423 N.E.2d 741
PartiesSTATE of Indiana, Appellant (Defendant Below), v. Elias T. BOURAS, Administrator of the Estate of Theodora Gianakis, Deceased, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Theodore L. Sendak, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellant (defendant below).

W. Scott Montross, Townsend, Hovde Townsend & Montross, Indianapolis, for appellee (plaintiff below).

CHIPMAN, Judge.

Theodora Gianakis was killed in an automobile accident on Indiana 47 near Crawfordsville, Indiana. The administrator of her estate, Elias Bouras, sued the State of Indiana for her wrongful death, alleging negligent design, construction and maintenance

of the highway, and recovered $300,000. This appeal by the defendant alleges error in the Shelby Superior Court jury trial. At issue is the court's refusal to give certain jury instructions, the admission of testimony, the size of the verdict and the sufficiency of the evidence. We affirm.

ISSUES

Specifically, we are concerned with the following issues:

1. Whether the court abused its discretion in refusing to give the following two jury instructions:

a. "You are instructed that in order for the plaintiffs to recover against the State of Indiana, they must prove by the preponderance of the evidence that the State of Indiana negligently failed to perform a legal duty owed to William and Theodora Gianakis which proximately caused their deaths. If you do make such a finding in favor of the plaintiffs, then and only then can you consider damages. At that point, you are hereby instructed that the State of Indiana, by law, can be held liable for no more than Three Hundred Thousand Dollars ($300,000.00) for the death of each person."

b. "In order for the plaintiffs to recover against the defendant, State of Indiana, the plaintiffs must prove by a preponderance of the evidence that the State negligently failed to perform a legal duty owed to Mr. and Mrs. Gianakis. In order to find that the State of Indiana failed to perform a legal duty, you must find that the State of Indiana had reasonable knowledge of facts and circumstances which would alert it to the harm. If the State of Indiana did not have reasonable knowledge of facts and circumstances to alert it to the harm and did not have a reasonable time to act upon knowledge to rectify that harm then you may find for the State of Indiana and against the plaintiffs."

2. Whether the court abused its discretion in permitting a state trooper to offer his opinion as an expert about the cause of the accident. And, if so, whether the other evidence alone was sufficient to support a jury verdict of negligence.

3. Whether the evidence presented was sufficient on which to base an award of $474,712 (reduced to $300,000) for the loss of a mother and housewife unemployed outside the home.

4. Whether the court committed error in permitting the plaintiff to tender 20 jury instructions without a showing of cause or advance notice to the defendant.

5. Whether the court improperly overruled a motion in limine intended to block trial testimony about earlier accidents which the State contends were dissimilar.

FACTS

Theodora Gianakis, 39, died in a one-car accident on the morning of October 9, 1976, just south of Crawfordsville on Indiana 47. Her husband William, 38, who was driving, died a few days later from injuries suffered in the crash. An only son, "Bobby," 12, survived with minor injuries.

The southbound Gianakis car failed to negotiate a curve while traveling about 50 mph. The auto went onto a soft shoulder, swerved back sharply on to the highway and skidded off again, rolling several times. The highway surface was new and the weather clear. No advisory speed sign was posted.

Investigating State Trooper Thomas Rehling testified as an expert witness at trial. In his opinion the proximate cause of the accident was improper banking of the highway. Willard Alroth, a traffic engineer, hired by the plaintiff as an expert, also testified the curve was not properly banked to be negotiated safely at the general 55 mph speed limit. Plaintiff introduced evidence of eight other accidents at the location during the previous nine months. Alroth testified five of them had similar patterns, although they involved a variety of vehicles and weather conditions.

The jury awarded Theodora's estate $474,712. Pursuant to the State's liability limit under the Tort Claims Act, IC 34-4-

16.5-4, 1 the court entered judgment of $300,000. The jury failed to reach a verdict for William, and the court scheduled a new trial.

DISCUSSION
I. Jury Instructions

The court rejected two of the defendant's tendered jury instructions. Giving instructions is entrusted to the trial court's discretion, and its refusal to give a tendered instruction is grounds for reversal only if the substance of the instruction was required to be given and was not adequately covered by other instructions given by the court. Smith v. Insurance Company of North America, (1980) Ind.App., 411 N.E.2d 638; Piwowar v. Washington Lumber and Coal Company, (1980) Ind.App., 405 N.E.2d 576. A tendered instruction is required to be given only if it covers an essential element of the case supported by evidence, correctly states the law material to the case and when no other instruction covers that area of the law. Dahlberg v. Ogle, (1978) 268 Ind. 30, 373 N.E.2d 159; Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836; School City of Gary v. Claudio, (1980) Ind.App., 413 N.E.2d 628; Burkett v. Crulo Trucking Co., (1976) 171 Ind.App. 166, 355 N.E.2d 253; Jackman v. Montgomery, (1974) 162 Ind.App. 558, 320 N.E.2d 770.

A. Instruction on Limit of State's Liability

The first instruction refused concerns the $300,000 statutory limit on state liability. Before trial, the court had overruled a defendant's motion for partial summary judgment limiting recovery to the statutory maximum and sustained a plaintiff's motion in limine forbidding any reference to the statutory limit. At the close of trial, the State tendered its jury instruction on the limit, and the court refused it, thus automatically preserving the question for appeal. Duchane v. Johnson, (1980) Ind.App., 400 N.E.2d 193.

The Tort Claims Act limits the financial liability of the State. It does not give the jury a scale for determining damages nor is it material to evaluating injury or loss. The jury is charged with assessing the amount of damages, IC 34-1-22-1, in light of the evidence presented, Barrow v. Talbott, (1981) Ind.App., 417 N.E.2d 917, not with determining the distribution of proceeds in light of public policy.

The Tort Claims Act liability limit was not at issue in the Gianakis case, accordingly the instruction was neither a correct statement of the law on an essential element nor was it supported by any evidence. Rather, the instruction was likely to mislead the jury into believing it provided a scale for the measure of damages. The statute was immaterial and the court was correct in refusing to give the instruction.

B. State's Knowledge of Dangerous Condition

The second instruction refused by the court was one advising the jury of a need for the State to have reasonable knowledge of a dangerous condition before being found negligent. In Indiana the State has a general duty to exercise reasonable care in the design, construction and maintenance of its highways for the safety of public users. Elliott v. State, (1976) 168 Ind.App. 210, 342 N.E.2d 674. The standard of care is that which would be exercised by an ordinary prudent person under the circumstances. Miller v. Griesel, (1974) 261 Ind. 604, 308 N.E.2d 701.

This general duty of care arises regardless of whether the State has actual knowledge or notice of a defect. Where there is actual knowledge by the State of an unsafe condition, it is obviously unreasonable and imprudent not to act to remedy the danger. However, the State also is chargeable with knowledge of a dangerous condition when the condition is of such a nature the State authorities or its agents could in the exercise of reasonable diligence, have discovered and corrected it. Board of Commissioners of Delaware County v. Briggs, (1975) 167 Ind.App. 96, 337 N.E.2d 852, rehearing denied, 167 Ind.App. 96, 340 N.E.2d 373. Where there is actual or constructive knowledge of an unsafe condition, there is a breach of the duty of care if the state does not act. On the other hand, where there is neither actual nor constructive knowledge of a dangerous condition, so that even the reasonably prudent person would not have been alerted to action, then there is no negligence.

The defendant's brief correctly states the law in quoting from City of Indianapolis v. Bates, (1976) 168 Ind.App. 555, 560, 343 N.E.2d 819, 822.

"(T)he judgment (was) not supportable on a theory of negligence because the City must have actual or constructive knowledge of a defect or a reason to know that it exists and an opportunity to repair, as a prerequisite to its liability for negligence in such cases." (citations omitted)

and City of New Albany v. Slattery, (1920) 72 Ind.App. 503, 508, 124 N.E. 755, 756.

"In cases like the one before us, it is well settled in this state that the complaining party must not only prove that the alleged defective condition existed, but that the city had knowledge thereof, actual or constructive, long enough before the accident to repair the defect, and failed to do so. The rule of constructive knowledge applies only to such defects as might have been discovered by the exercise of ordinary care and diligence."

However, the defendant's proposed instruction is not so precise. It would state the law as requiring the State to have "reasonable knowledge of facts and circumstances to alert it to the harm." It is not at all clear that "reasonable knowledge" is or is not the same thing as actual or constructive knowledge nor...

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