State v. Thompson

• Decision Date: 29 January 1979
• Docket Number: No. 1-177A10,1-177A10
• Citation: 179 Ind.App. 227,385 N.E.2d 198
• Parties: STATE of Indiana, Appellant (Defendant below), v. Gary D. THOMPSON and Paul C. Thompson, Appellees (Plaintiffs below), and American Oil Company, Inc., Appellee (former third-party Defendant below).
• Court: Indiana Appellate Court

Page 198

385 N.E.2d 198

179 Ind.App. 227

STATE of Indiana, Appellant (Defendant below), v. Gary D. THOMPSON and Paul C. Thompson, Appellees (Plaintiffs below), and American Oil Company, Inc., Appellee (former third-party

Defendant below).

No. 1-177A10.

Court of Appeals of Indiana, First District.

Jan. 29, 1979.

Rehearing Denied April 17, 1979.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert S. Spear, Thomas D. Strodtman, Asst. Attys. Gen., Indianapolis, for appellant.

C. Richard Marshall, Robert L. Stevenson, Stevenson, Marshall & Silva, Columbus, Tom G. Jones, Jones, Loveall & Coachys, Franklin, for appellees, Gary D. Thompson and Paul C. Thompson.

Jim A. O'Neal, Cory S. Brundage, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee, American Oil Co., Inc.

LYBROOK, Presiding Judge.

The State appeals from 1) an adverse judgment entered on a jury verdict in the amount of $1,240,000 in favor of Gary Thompson; and 2) a dismissal of the State's third-party complaint against the American Oil Company (Amoco) for indemnity. The theory of Thompson's complaint against the State was that the State "negligently marked, designed, constructed, engineered and maintained" a section of U. S. highway 31 at its intersection with Interstate highway 65 in Bartholomew County, resulting in an auto-truck collision in which Thompson received severe and permanent injuries.

The following issues are raised for our review:

I. Whether the State of Indiana is immune from suit for design defects in a State highway;

II. Whether there was sufficient evidence to support the jury's finding that the State's actions were the proximate cause of Thompson's injuries;

III. Whether Thompson's conduct constituted contributory negligence as a matter of law;

IV. Whether Thompson was limited to a recovery of $300,000 in view of the provisions of the Indiana Tort Claims Act; ¹

V. Whether the trial court erred in granting Thompson's motions in limine and thus excluding all evidence of a loan receipt agreement executed between Thompson and certain defendants;

VI. Whether the court erred in excluding evidence of a covenant not to execute entered into between Thompson and certain defendants;

VII. Whether the alleged misconduct of a juror requires a new trial;

VIII. Whether the damages were excessive; and

IX. Whether the trial court erred in dismissing the State's third-party complaint against Amoco.

We affirm the judgment entered by the trial court on the jury's verdict in favor of Thompson and against the State; we further affirm the trial court's dismissal of the State's third-party complaint against Amoco.

FACTS

On July 17, 1973, at approximately 10:15 P.M., Gary Thompson was driving south on four-lane U. S. highway 31 in northern Bartholomew County, approaching and then passing the Interstate 65/U.S. 31 intersection near Taylorsville. Riding with Thompson was his girlfriend, Debbie Thompson (now Miller). The pair had left a friend's trailer, where Gary had consumed three beers from about 8:40 P.M. to 10:10 P.M.

As the car proceeded south on U.S. 31, it was in the inside (or passing) lane next to the 48-foot grass median. Each lane of the four-lane highway was 12 feet in width.

Gary, driving at 60 to 65 miles per hour, was slowly passing and pulling away from another car which was in the outside lane. As Thompson's car approached the southern of two exits/entrances to the Amoco truck stop, located on the right (west) side of the southbound lanes, and in the southwest quadrant of the I-65/U.S. 31 interchange, Debbie noticed the side marker lights of a tractor cab near that exit but could not see the partially loaded flatbed trailer behind it. The tractor and trailer were owned and driven by Clyde Stephens and leased to the Jack Cole-Dixie Highway Company, a trucking company. The automobile continued toward the exit; Debbie then saw the trailer behind the tractor, and she suddenly realized that the trailer was blocking both lanes of the traveled portion of the highway. Debbie screamed; the car swerved to the right, but Gary was not able to maneuver very well due to the presence of the other car in the next lane. He slammed on the brakes and the car skidded 97 1/2 feet into and underneath the 40-foot flatbed trailer immediately behind the trailer's rear tandems. The side beam of the flatbed trailer struck Gary's windshield and left front windshield pillar, and these items then struck Gary's skull causing permanent brain and brain stem damage along with other permanent and disabling injuries.

The evidence established that U.S. 31 in the area in question is a dual-lane, limited-access, north-south highway, which intersects near Taylorsville with Interstate 65. At this intersection are located three high volume 24-hour diesel truck stops.

The Amoco truck stop, situated in the southwest quadrant of the I-65/U.S. 31 intersection, had two commercial "cuts," or exits/entrances, onto southbound U.S. 31. When a truck exiting the Amoco truck stop headed north on U.S. 31, it first had to cross the southbound lanes, and, because the 48-foot crossover was not long enough to "shadow" or "store" the entire trailer while the driver waited for the northbound lanes to clear, he had to stop with the trailer blocking one or both of the southbound lanes of traffic while he waited for an opportunity to enter the northbound flow of traffic. Evidence established that these trucks often were loaded heavily and were slowly moving.

In July, 1973, the area where the accident occurred had no lighting. The crossover was located on a flat, gentle curve (bending left, or east, when southbound), and this curve made it difficult, especially at night, for southbound motorists before entering the curve to discern whether a stopped tractor and trailer were on the Amoco driveway, were blocking the southbound lanes, or were in the crossover. At nighttime this problem was aggravated when a tractor with a flatbed trailer was blocking the southbound lanes, since this type of trailer would have very little side surface to reflect a southbound motorist's headlights. Given the average distance of 300 feet for the reach of an automobile's headlights, and given the absence of a reflection off the side of a flatbed trailer, a driver proceeding at the legal speed limit, heading into and around the curve, might not be able to see the trailer until it was too late to stop.

Expert testimony showed that the area lacked warning and caution signs which could have advised southbound motorists of the dangers involved. There was one "Truck Entrance" sign which was 1,271 feet north of the crossover involved and 24 feet off the highway; thus it was also north of the northern exit/entrance to the Amoco truck stop, and expert testimony differed as to the sign's applicability to the crossover where the accident occurred. It was also questionable whether a southbound driver's headlights would illuminate the "Truck Entrance" sign, since it was so far (24 feet) from the highway. The positioning of this sign violated the State's Uniform Traffic Manual in at least two respects: 1) the sign was 24 feet from the road instead of 12 to 18 feet as required by the manual; and 2) the manual required that the sign be posted no more than 750 feet from the exit/entrance (compared with this sign's positioning 1,271 feet from the crossover exit at which the accident occurred).

In 1973 the general highway speed limit in Indiana was 65 m. p. h. unless otherwise indicated on a particular stretch of highway. Evidence conflicted at trial concerning the speed limit near the crossover. Plaintiff's expert, Joseph Harris, testified that according to the Uniform Traffic Manual the speed limit was 65 m. p. h. despite the State's attempt to lower the speed limit by posting a single 55 m. p. h. speed limit sign over a mile north of the crossover.

Harris testified that he was familiar with the Indiana Uniform Manual on Traffic Control Devices and its federal counterpart. The maximum speed limit for a road such as U.S. 31 in this area was 65 m. p. h. in July, 1973. According to the manual, before a speed reduction area is in effect there must be an absolute speed limit enacted by law pertaining to this area and there must be properly posted signs. For a speed reduction area of less than 5 miles in length, such as the attempted speed reduction in the area in question, the Uniform Manual required speed signs to be posted at least every one-half mile, and at the end of the zone it required a sign saying "Return to 65 m. p. h." or "End 55 m. p. h."; therefore, for a one-mile speed reduction zone, it was necessary to have a minimum of three signs. The manual also required a "Speed Limit Ahead" sign at least 1,000 feet before the speed reduction zone started with the "Begin 55 m. p. h." sign. Although all these signs were required to effect a reduced speed zone, the State had in place only one 55 m. p. h. speed limit sign, which was located over a mile north of the crossover.

Since U.S. 31 was a declared limited-access highway, the Indiana State Highway Commission had control over the issuance of permits to allow the construction of cuts and driveways for businesses located near the highway. See Ind.Code 8-11-1-4.

Over the years several citizens had complained about the dangers of the intersection. From a review of the record it appears that the State's only response to these complaints was the placing of one 55 m. p. h. speed limit sign north of the intersection in 1973.

On October 5, 1964, Hildreth Smith wrote a letter to the State Highway Commission concerning the dangers of the I-65/U.S. 31 junction and noting that several fatal accidents and property damage accidents had occurred in the area. She specifically referred to the problems caused by slowly moving trucks entering U.S. 31 from the truck stops at the intersection. She recommended the installation of caution lights, signs warning of slowly moving vehicles, or...