Utley v. Healy

• Decision Date: 29 March 1996
• Docket Number: No. 65A05-9505-CV-160,65A05-9505-CV-160
• Citation: 663 N.E.2d 229
• Parties: Sharon UTLEY and Thomas Utley, Appellants-Plaintiffs, v. Daniel HEALY, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 229

663 N.E.2d 229

Sharon UTLEY and Thomas Utley, Appellants-Plaintiffs, v. Daniel HEALY, Appellee-Defendant.

No. 65A05-9505-CV-160.

Court of Appeals of Indiana.

March 29, 1996.

Transfer Denied Sept. 18, 1996.

Appeal from the Posey Circuit Court; The Honorable James M. Redwine, Judge, Cause No. 65C01-9209-CT-204.

Daniel J. Tuley, Jon K. Aarstad, Robert John & Assoc., Evansville, for appellants.

David R. Sauvey, Eric D. Johnson, Kightlinger & Gray, Indianapolis, for appellee.

OPINION

SHARPNACK, Chief Judge.

Sharon and Thomas Utley appeal the judgment in favor of Daniel Healy for injuries that Sharon sustained in a car collision. The Utleys raise four issues for our review which we restate as:

(1) whether the trial court properly admitted the contents of a work order into evidence;

(2) whether the jury was inappropriately instructed and given improper verdict forms;

(3) whether the trial court erred in denying the Utleys' motion for judgment on the evidence concerning Healy's nonparty defense; and

(4) whether the trial court improperly admitted evidence in violation of Ind. Evidence Rule 407.

We affirm.

The facts most favorable to the judgment follow. On September 30, 1990, Sharon Utley was driving south on Munchoff street in Mt. Vernon, Indiana, and approaching the 5th street intersection at approximately twenty miles per hour. At the same time, Healy was driving east on 5th street. A warehouse on the northwest corner of the intersection at Munchoff and 5th streets blocks the view of drivers approaching as were Utley and Healy. In addition, while drivers traveling eastbound on 5th street have a stop sign at the Munchoff intersection, the view of the stop sign was blocked by a tree.

When Sharon passed midway into the intersection, she saw Healy's car enter the intersection. Utley and Healy collided in the middle of the intersection. At the time of the collision, Healy was driving at approximately thirty to thirty-five miles per hour. Utley sustained bodily injuries and incurred about $5,760.98 in medical expenses. Utley's car sustained damage on the passenger side.

On September 29, 1992, the Utleys filed a complaint against Healy for negligence. ¹ Healy named the city of Mt. Vernon as a nonparty because the city had negligently allowed a stop sign to become obstructed by a tree. Healy alleged that this negligence proximately caused the collision. A jury trial was held on December 13 and 14, 1994. Following Healy's case, the Utleys moved for judgment on the evidence on Healy's nonparty defense because Healy had failed to show that the city had actual or constructive notice of the obstructed stop sign. The trial court denied this motion. After instructing the jury and providing verdict forms, the jury returned a verdict in favor of Healy.

On January 12, 1995, the Utleys filed a motion to correct errors, which was overruled. The Utleys now appeal.

I.

The first issue raised for our review is whether the trial court improperly admitted exhibit C into evidence over the Utleys' hearsay objection. ² Exhibit C is a Mt. Vernon Street Department work order which indicated a "problem" with the intersection of Munchoff and 5th streets such that a tree was blocking the view of the southwest corner stop sign. Record, p. 581.

In reviewing an evidentiary ruling on appeal, we must sustain the trial court's action if it can be done on any legal ground on the record. Cain v. State, 261 Ind. 41, 45-46, 300 N.E.2d 89, 92 (1973). We may affirm if the ruling can be sustained on any theory consistent with the evidence presented. Taylor v. State, 615 N.E.2d 907, 912 (Ind.Ct.App.1993). Thus, on review, we will uphold a correct legal ruling even where based on incorrect or absent legal reasoning below. Reaves v. State, 586 N.E.2d 847, 857 (Ind.1992).

The Utleys maintain that the trial court improperly admitted the exhibit into evidence over their hearsay objection. Hearsay is an out of court statement offered for the truth of the matter asserted. Ind.Evidence Rule 801(c). A hearsay statement is not admissible unless it falls under one of the enumerated exceptions in the rules. Evid.R. 802. However, a statement offered not for the truth of the matter asserted but rather for some other relevant purpose is admissible. Evid.R. 402; see Fleener v. State, 648 N.E.2d 652, 656 (Ind.Ct.App.1995), transfer granted on other grounds, 656 N.E.2d 1140 (Ind.).

The Utleys argue that the work order contains an assertion made by an unknown declarant and that the exhibit was offered for the truth of the matter asserted, namely, that a tree obscured Healy's view of the stop sign. Healy maintains that the work order is not hearsay because it was offered to prove that the stop sign was under the city's control instead of to prove that the tree blocked the view of the stop sign. For Healy to satisfy the burden of his nonparty defense, he needed to prove that the city had control over the sign. See Ind.Code § 34-4-33-10(b). Specifically, to successfully set forth a nonparty defense, Healy had to establish that the city breached a duty of care owed to the Utleys which proximately caused the injuries. MacDonald v. Maxwell, 655 N.E.2d 1249, 1250 (Ind.Ct.App.1995), reh'g denied. Once these elements were established, the city became liable, as a nonparty, to the Utleys for Sharon's injuries. I.C. § 34-4-33-2(a)(2).

The state and its counties have a duty to maintain and repair roads within their control. Spier by Spier v. City of Plymouth, 593 N.E.2d 1255, 1258 (Ind.Ct.App.1992), reh'g denied, trans. denied; see Miller v. State Highway Dep't, 507 N.E.2d 1009, 1012 (Ind.Ct.App.1987), reh'g 514 N.E.2d 93. Included in this duty is the obligation to maintain and repair traffic control signals, including stop signs. Spier, 593 N.E.2d at 1258. However, the duty does not attach unless the city has actual or constructive notice of a dangerous situation. Id.

Applying the law to the record before us, we find that the admission of the work order's contents was proper to establish that the city had notice of a dangerous situation. Notice of a dangerous condition, such as the obscured stop sign, was necessary to establish that the city had a duty to maintain the stop sign and that the city breached its duty to maintain the stop sign. Since this evidence was relevant to the disposition of this case, the admission of the work order was proper. Therefore, we must affirm on this theory which is consistent with the evidence presented in this case. See Taylor, 615 N.E.2d at 912. Accordingly, the trial court properly admitted the work order. Finally, because we hold that the work order was properly admitted into evidence, we need not address the parties' dispute about whether the work order falls within an exception to the hearsay rule and whether the Utleys offered a specific objection to avoid waiving the argument.

II.

The second issue raised for our review is whether the jury was properly instructed about comparative fault law and provided with appropriate verdict forms. At trial, the jury was instructed in part that "[i]f you find the Defendant is not at fault or that the Plaintiffs have failed to meet their burden of proof, then your verdict should be for the Defendant, you should sign Verdict Form C, and no further deliberation of the Jury is necessary." Record, p. 657. The jury was given three verdict forms, including Verdict Form C, which simply stated that "We, the Jury, find for the defendant." Record, p. 152. This form only required the signature of the jury foreperson and the date.

The Utleys argue that by giving the instruction and using Verdict Form C, the trial court violated the then current I.C. § 34-4-33-5. That section provided in part:

"In an action based on fault that is brought against one (1) defendant or two (2) or more defendants who may be treated as a single party, and that is tried to a jury, the court, unless all the parties agree otherwise, shall instruct the jury to determine its verdict in the following manner:

(1) The jury shall determine the percentage of fault of the claimant, of the defendant, and of any person who is a nonparty. The percentage of fault figures of parties to the action may total less than that one hundred percent (100%) if the jury finds that fault contributing to cause the claimant's loss has also come from a nonparty or nonparties.

(2) If the percentage of fault of the claimant is greater than fifty percent [ 50% ] of the total fault involved in the incident which caused the claimant's death, injury, or property damage, the jury shall return a verdict for the defendant and no further deliberation of the jury is required.

(3) If the percentage of fault of the claimant is not greater than fifty percent [ 50% ] of the total fault, the jury then shall determine the total amount of damages the claimant would be entitled to recover if contributory fault were disregarded.

(4) The jury next shall multiply the percentage of fault of the defendant by the amount of damages determined under subdivision (3) and shall then enter a verdict for the claimant in the amount of the product of that multiplication."

I.C. § 34-4-33-5(a). ³ This section requires the allocation of fault to the claimant, defendant, and nonparty. Evans v. Schenk Cattle Co., 558 N.E.2d 892, 895 (Ind.Ct.App.1990), trans. denied. In addition, the statute includes specific rules about verdict forms:

"The court shall furnish to the jury forms of verdicts that require the disclosure of:

(1) The percentage of fault charged against each party; and

(2) The calculations made by the jury to arrive at their final verdict.

If the evidence in the action is sufficient to support the charging of fault to a nonparty, the form of verdict also shall require a disclosure of the name of the nonparty and the percentage of fault charged to the nonparty."

I.C. § 34-4-33-6. ⁴

The Utleys argue that the jury was instructed that it was not required to calculate the...