State v. Collier

• Decision Date: 31 July 1975
• Docket Number: No. 1--174A2,1--174A2
• Citation: 165 Ind.App. 239,331 N.E.2d 784
• Parties: STATE of Indiana et al., Appellants (Defendants below), Joseph A. Blatt, Director, Division of State Parks, Department of Natural Resources, et al. (Defendants below), v. Doyle Lincoln COLLIER, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 784

331 N.E.2d 784

165 Ind.App. 239

STATE of Indiana et al., Appellants (Defendants below) Joseph A. Blatt, Director, Division of State Parks Department of Natural Resources, et al. (Defendants below), v. Doyle Lincoln COLLIER, Appellee (Plaintiff below).

No. 1--174A2.

Court of Appeals of Indiana, First District.

July 31, 1975.

Rehearing Denied Sept. 11, 1975.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert E. Spear, Deputy Atty. Gen., Indianapolis, for appellants.

F. Boyd Hovde, Earl C. Townsend, Jr., Townsend, Hovde & Townsend, Indianapolis, for appellee; Peter L. Obremskey, Parr, Richey, Obremskey, Pedersen & Morton, Lebanon, of counsel.

LOWDERMILK, Judge.

This appeal comes to us in an action wherein Doyle Lincoln Collier (Collier), plaintiff-appellee, recovered a judgment against defendants-appellants, State of Indiana, et al. ¹ in the sum of $700,000.00 for personal injuries sustained by Collier while swimming and diving at Hulman Beach located in the Richard Lieber State Park near Cloverdale.

FACTS:

On September 4, 1966, Collier, a 22 year old male, was swimming at Hulman Beach in Richard Lieber State Park, which was owned at that time by the United States Army Corps of Engineers and leased to the State of Indiana. On that day Collier performed a dive called a 'suicide suzy' which is a dive used to produce tremendous splashes, and in so doing was severely injured. A 'suicide suzy' may be described as a dive where the diver initially dives 'spread eagle' and then just before hitting the water, tucks into a ball and on striking the water creates a huge splash. Collier's injury stemmed from his colliding with a surfboard at the end of his dive just before he struck the water. The surfboard was occupied by a life guard (defendant Hervey) who was on duty for the State and who had propelled the surfboard directly into the path of Collier's dive. Collier testified he walked out on the diving board before performing his last dive to make sure that the previous diver had cleared the diving area and that no swimmers were in the area. At this time he noticed that Hervey was sitting on the surfboard some fifteen to sixteen feet off the end of the diving board. Collier then turned around, took three to three and one-half steps and again turned around and took the same number of steps to the end of the diving board where he took a couple of springs on the board and went into the air to perform his dive. He went 'spread eagle' and looked down. He saw that Hervey had propelled the surfboard into the path of his dive and the collision occurred between Collier and the surfboard.

Hervey testified he was paddling backward and did not see Collier in the air except just before impact.

Collier's injuries, the extent of which are not in issue, were extremely severe. Suffice it to say that he was rendered quadruplegic, with complete paralysis from his neck down. He has now recovered to the point that the paralysis is from the teats down. One doctor described Collier's injury as the most severe injury a human being can sustain without being killed. Collier indicated that he had tried unsuccessfully to kill himself at least three times since the accident but was physically unable so to do.

ISSUES:

The issues here presented by State's brief are:

1. Whether the trial court erred as a matter of law in granting Collier's motion to reconsider on January 16, 1970, and setting aside the final judgment entered on behalf of defendants-appellants (State) on March 25, 1968.

2. Whether Collier incurred the risk as a matter of law.

3. Whether Collier was guilty of contributory negligence as a matter of law.

4. Whether the damages were excessive.

DISCUSSION:

Issue One--Did the court have jurisdiction to grant plaintiff's motion to reconsider on January 16, 1970, and set aside a final judgment entered on behalf of the State on March 25, 1968?

Defendant's primary issue on appeal concerns whether the trial court lacked jurisdiction herein for the reason that it sustained defendant's demurrer to plaintiff's original complaint on February 29, 1968, and plaintiff failed to appeal.

Resolution of this issue necessitates inspection of the trial court's entries concerning this cause. They read, in pertinent part, as follows:

'6/27/67 Complaint for personal injuries filed by Collier.

2/9/68 Defendants State of Indiana and Department of Natural Resources files demurrer to Complaint: (H.I.).

2/29/68 Demurrer filed to complaint sustained as to all except Rodney Hervey, and plaintiff is ruled to plead over as to said defendants on or before March 15, 1968, or stand on demurrer.

3/25/68 Plaintiff having failed to plead over as to all defendants except Hervey, elects to stand on ruling on demurrer, and court now finds against plaintiff as to following defendants: State of Indiana; Department of Natural Resources; Bureau of Land, Forest and Wildlife Resources; Joseph A. Blatt, Director Division of State Parks, Department of Natural Resources.

1/16/70 Plaintiff files motion for court to reconsider ruling sustaining demurrer to complaint filed by all governmental units: (H.I.). Ruling on demurrer having been based on immunity, motion sustained and having reconsidered, now finds that demurrer should be overruled. Court therefore now sets aside finding in favor of defendants entered herein on March 25, 1968, and overrules said defendant's demurrer to complaint and defendants are ruled to answer.

3/9/70 Defendant State of Indiana, et al., files motion to reconsider ruling which set aside finding and reinstituted said defendants as party defendants: (H.I.). Motion assigned for oral argument on April 9, 1970, at 1:00 P.M.

5/22/70 Parties have submitted their briefs, and counter-briefs and court having examined same, and being advised, now overrules the defendant's motion to change ruling on reconsideration which ruling set aside finding for the same defendants and reinstituted said cause as against all defendants.' ²

Defendant's argument is that the entry of March 25, 1968, supra, is a final judgment from which Collier did not appeal. They therefore submit that the entry of January 16, 1970, supra, which reopened the case was error for the reason that the trial court was without jurisdiction. Collier however, points out that the entry of March 25, 1968 was not a final judgment but, rather, a mere finding upon which a final judgment was never rendered. Collier argues that the defendants had the right to request judgment upon the finding, but never did so. Collier therefore maintains that the trial court was correct in reopening the cause.

Inasmuch as defendant's entire argument under this issue is premised upon the belief that the March 25, 1968 entry was a final judgment, resolution of that question is essential and dispositive.

By applicable statute, to be a binding order,

'The judgment must be entered in the order-book, and specify clearly the relief granted, or other determination of the action.' Ind.Stat.Ann., § 2--2517 (Burns 1968 ³ Replacement)

Here, appellants have failed to show any order book entries. All that is presented in the transcript is the docket sheet entries of the court. Further, it cannot be disputed that the docket sheet entry of March 25, 1968, supra, fails to 'specify clearly the relief granted or other determination of the action.' As appellee points out, the language of the March 25, 1968, entry doesn't grant any relief or in any way determine the action. Rather, it merely constitutes a finding against plaintiff, not a judgment.

Had the entry been a final judgment the trial court was without jurisdiction to modify the judgment after (1) 90 days had elapsed or (2) the term of the court in which the judgment was entered had ended.

In Wadkins v. Thornton (1972), Ind.App., 279 N.E.2d 849, this court discussed the old rule that a court was powerless in a new term to correct or amend judgments rendered in a previous term and went on to say that this state of affairs was changed in 1967 when the distinction between term time and vacation time in all courts of the State of Indiana was abolished by the enactment of IC 1971, 33--1--6--1, Ind.Annot.Stat. § 4--6310 (Burns 1968). Said statute extended the terms for all courts to the calendar year. The court stated further that IC 1971, 31--1--6--3, Ind.Annot.Stat. § 4--6312 (Burns 1968) had limited the power the court possesses over its judgment to a period of 90 days after the judgment is rendered. The court further said:

'The term 'judgment' as used pursuant to Rule TR. 60 is defined by Rule TR. 54(A):

'(A) Definition--form. 'Judgment' as used in these rules includes a decree and any order from which an appeal lies.' (Emphasis supplied.)

An appeal lies from a decree overruling a motion to correct errors. Consequently, such a decree is a judgment within the framework of Rule TR. 60 and the Neal, Hoffman, and Decker, cases (State ex rel. Neal v. Superior Court, 202 Ind. 456, 174 N.E. 732; Hoffman v. Hoffman, 115 Ind.App. 277, 57 N.E.2d 591; In re Decker's Estate, 122 Ind.App. 390, 102 N.E.2d 920), supra.

The nature of the judicial act in rendering judgment was recently brought into focus by Justice Prentice in State v. Bridenhager, (Ind.1971) 276 N.E.2d 843::

'* * * for many purposes, a judgment, until entered, is not complete, perfect and effective until this is done; it, nevertheless, is effective between the parties from the time of rendition. (Emphasis supplied.)

'* * * rendition of the judgment is the act of the judge, judicial, but the entry thereof the act of the clerk, ministerial, and the judge's signature is likewise a ministerial attestation to the correctness of the clerk's transcription of a judgment complete in itself when pronounced by the judge. * * *' (Emphasis ours) Bailer v. Dowd (1942) 219 Ind. 624, 627, 40 N.E.2d 325, 326." 279 N.E.2d at 852.

The case of Fairwood Bluffs Conservancy District v. Imel (1970), 146 Ind.App. 352, 255 N.E.2d 674,...