State v. Edgman

• Decision Date: 13 April 1983
• Docket Number: No. 3-680A171,3-680A171
• Citation: 447 N.E.2d 1091
• Parties: STATE of Indiana, Appellant (Defendant Below), v. James P. EDGMAN, Individually, and as Administrator of the Estate of Lorene A. Edgman, Deceased, on behalf of himself and said Estate, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1091

447 N.E.2d 1091

STATE of Indiana, Appellant (Defendant Below), v. James P. EDGMAN, Individually, and as Administrator of the Estate of Lorene A. Edgman, Deceased, on behalf of himself and said Estate, Appellee (Plaintiff Below).

No. 3-680A171.

Court of Appeals of Indiana Fourth District.

April 13, 1983.

Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellant.

Richard Kuhlman, Stephen B. Cohen, George C. Pontikes, William J. Stevens, Foss, Schuman & Drake, Chicago, Ill., Cecil B. Cohen, Thomas R. Bullard, Cohen, Cohen & Bullard, East Chicago, David F. McNamar, Michael R. Franceschini, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellee.

MILLER, Judge.

The State of Indiana, dissatisfied with an adverse jury award in a negligence case, brings this appeal for reversal of the judgment. James P. Edgman, individually and as administrator of his wife's estate, brought suit against the State for negligent design, construction and maintenance of a road section in Lake County, where he was seriously injured and his wife killed in a two-car collision with Robert Casillas. The jury granted $1.8 million in damages, and the State appeals, primarily alleging errors at trial. We find no grounds for reversal of this judgment and affirm.

ISSUES

The State claims the trial court erred:

1) in overruling the State's motion, filed beyond the deadline defined in Ind. Rules of Procedure, Trial Rule 76, for change of venue from the county,

2) in overruling the State's challenges for cause of prospective jurors who indicated familiarity with the accident scene,

3) in denying the State's motion for summary judgment because Edgman could not show the State's negligence was the proximate cause of the collision,

4) in denying the State's motions for judgment on the evidence (directed verdict),

5) in allowing the opinion evidence of Dr. Gary Long, a registered (licensed) professional engineer, because he was not so registered in Indiana.

6) in excluding from the evidence State's Exhibit 12, a police accident report, the declarant of which was dead,

7) in failing to grant the State's request for mistrial when one of Edgman's witnesses testified the road was known as a "killer highway,"

8) in admitting evidence, challenged by pre-trial motion in limine and by objection at trial, of recommendations and suggestions by State and non-State representatives regarding the original design of the road section,

9) in giving final Instruction No. 2, which allegedly was an incorrect statement of the law regarding the elements and facts required of Edgman to sustain his burden of proof,

10) in giving final Instructions Nos. 13 and 14 regarding the State's duties to construct and maintain its highways,

11) in giving final Instructions Nos. 16, 17, 18 and 19, which allegedly imposed strict liability upon the State for the violation of certain statutes,

12) in failing to deliver the State's tendered Instruction No. 2, which instruction limited the State's liability to only those persons who themselves were using ordinary care,

13) in refusing to give the State's tendered Instructions Nos. 4 and 9, which asserted that the State is not an insurer for accidents incurred on the State's highways,

14) in refusing to give the State's tendered Instruction No. 5, which recited certain statutory provisions concerning speed of vehicles in order to impose negligence upon the other driver, Casillas,

15) in refusing the State's tendered Instruction No. 6, which advised against engaging in speculation as to the proximate cause of the accident 16) in refusing the State's tendered Instruction No. 8 regarding the finding of proximate cause,

17) in refusing to give the State's tendered Instructions Nos. 11, 12 and 13, all of which were in excess of the number of tendered instructions (10) permitted by Ind. Rules of Procedure, Trial Rule 51(D).

FACTS

On the night of July 27, 1970, James Edgman and his wife Lorene were driving south on Cline Avenue bordering Gary and Hammond. They were traveling at approximately 35 to 40 miles per hour in the outermost of the two southbound lanes. A vehicle driven by Robert Casillas approached at approximately 40 to 60 miles per hour in the outside northbound lane. At the "S" curve on Cline Avenue, for reasons that have never been clearly established, Casillas lost control of his automobile as he approached the Grand Calumet River Bridge in the middle of the curve. His car crossed both northbound lanes, struck and crossed the six-inch, four-feet wide concrete median curb, traversed both southbound lanes, and collided with the Edgman vehicle. Testimony elicited at trial established the following conditions at the Cline Avenue "S" curve, the crash-site: no lighting, no striping along outer edges of lanes, no lane markings, a series of defectively designed vertical curves followed by a defectively designed and hidden horizontal curve, no signs warning of said curves, no speed limit signs, and no median barrier. As a result of the crash, Casillas and Lorene Edgman died, and James Edgman suffered multiple injuries including brain damage, a broken left hip (surgically replaced), a fractured knee, fractures in the chest and an elbow, and a 60-82.5% hearing loss in both ears. The jury awarded Edgman a total of $1.8 million dollars in damages, having found the State negligent, and the State appeals. ¹

Issue One--Change of Venue

The State contends the trial court's denial of its motion for change of venue was contrary to law and acted to substantially prejudice the State by denying its right to an unbiased jury. The State's motion, filed September 7, 1979 (nine years after the filing of the complaint and three months before the scheduled trial), was founded on the following allegations:

1. The Cline Avenue expressway, which was the site of the 1970 accident, had been improved in 1973 by the addition of lights and a median concrete barrier wall--facts which would be known to prospective Lake County jurors who had traveled on the expressway to and from work during that period of time. This knowledge, according to the State, would frustrate the evidentiary rule barring evidence of subsequent repairs and improvements.

2. Though some of the prospective jurors might not have previously used the section of the expressway, several would most probably be required to do so in traveling to and from the courtroom.

3. Prospective jurors would have been exposed to adverse publicity regarding Cline Avenue expressway and accidents on its "S" curve.

4. A substantial number of venireman would likely be employed or have family members employed at Inland Steel and would be biased in favor of Edgman because of:

(a) familiarity with Cline Avenue and knowledge of changes since the date of the accident, or

(b) identification with the Edgmans or the other driver involved in the accident, all of whom were employed at Inland Steel at the time of the accident.

Additionally, the motion alleged the State was unable to explore the veniremen's use of the expressway section in voir dire because, by such questioning, it would have invited the jury's attention to the very matter the State wished to avoid and would have waived any error with respect to such matter. The State later amended the motion to add that it first became aware of the bias of Inland Steel employees on or about August 31, 1979, when it interviewed several witnesses. The amendment recited such bias continued to develop over the years and was not necessarily present in 1971 when the case was filed.

We find the trial court did not err in denying the State's motion. Because the motion was not made within ten days after the issues were first closed on the merits, such motion was subject to the late filing provisions of Ind. Rules of Procedure, Trial Rule 76(8). The rule instructs:

"Provided, however, if the moving party first obtains knowledge of the grounds for change of venue from the county or judge after the time above limited, he may file said application, which must be verified personally by the party himself, specifically alleging when the cause was first discovered, how discovered, the facts showing the grounds for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten days, and the ruling of the court may be reviewed only for abuse of discretion." (Emphasis added.)

A careful examination of the pertinent pleadings reveals the State offered no explanation why the cause for venue change alleged in its motion could not have been discovered before September 7, 1979, by the exercise of due diligence. We note the accident involved herein occurred in 1970, the Edgman complaint was filed in 1971, and the remedial highway construction was performed in 1973. The long period of time between these earlier events and the State's 1979 motion, when coupled with the State's failure to offer any explanation why it could not have previously discovered possible jury bias, leads us to conclude there was no abuse of discretion on the part of the trial court. ²

Issue Two--Jurors Challenged for Cause

The State next asserts the trial court improperly overruled its challenges for cause of six veniremen who indicated they were familiar with Cline Avenue after 1970. Such familiarity, argues the State, discloses the prospective jurors were knowledgeable of the changes made in the roadway in 1973, and would therefore "automatically form an opinion that the State was negligent" (Appellant's Brief, p. 10). Further, the State contends these veniremen would view the State's repairs on the road as an admission of negligence on its part.

Of the six veniremen complained of, three (Knight, Bryant and Davis) did not serve on the jury. The three remaining (Cichy, Kausenfleck, and Kish) were questioned regarding...