Walters v. Dean, 2-1285A392
| Decision Date | 11 September 1986 |
| Docket Number | No. 2-1285A392,2-1285A392 |
| Citation | 497 N.E.2d 247 |
| Parties | John K. WALTERS, Plaintiff-Appellant, v. Robert F. DEAN, Jr., Defendant-Appellee. |
| Court | Indiana Appellate Court |
John M. Cronin, Cronin & Rose, Indianapolis, for plaintiff-appellant.
George A. Cottrell, Cottrell Ittenbach Helbert & Sheeks, Indianapolis, for defendant-appellee.
John K. Walters appeals from a judgment for the defendant entered pursuant to court trial in his action against Robert F. Dean, Jr., seeking to recover for property damage to his automobile. We affirm.
About 12:30 A.M. on March 2, 1985, Walters' son, Andrew, was driving a 1975 Chevrolet Monte Carlo automobile belonging to Walters north on Post Road. The lights on the car started growing dim around the 1100 block of North Post Road, and the car began losing power. The car finally stopped in the 1300 block and was without lights. At this location, Post Road has two lanes in each direction, and the Monte Carlo was stopped in the westernmost, or left hand northbound lane of Post Road. The night was dark and foggy and there were no street lights at the location where the car came to a stop.
Andrew left the car, unlighted and unattended, and walked to a house some two blocks away where the occupants were awake, and telephoned his father. When Andrew returned to the car, Deputy Sheriff Driver was there. Deputy Driver lighted three flares and placed them in position to provide a warning. Driver told Andrew the flares would burn for 15 to 20 minutes. Driver offered to call a wrecker, but Andrew declined because his father was on the way. Driver told Andrew not to leave the car and left the scene.
Walters arrived some five to ten minutes later. He and Andrew left the Monte Carlo unattended in the left hand lane and proceeded in Walters' car to 38th Street and Post Road, approximately 25 blocks distant, where they arranged for a wrecker to tow the Monte Carlo. Walters and Andrew returned to the scene where they discovered the Monte Carlo had been struck in the rear by Dean's Datsun pickup truck. The flares were not burning. Deputy Driver had been dispatched to the scene of the collision and arrived about twenty-five minutes after his first visit to the scene.
Dean testified that he did not see the Monte Carlo, saw no flares, and did not know what he hit. He was knocked unconscious and his only recollection is that paramedics were attending to him when he regained consciousness. Dean had been driving at 35 miles per hour in a 40 mile per hour zone immediately prior to the collision.
Lawrence and Virginia Dickey were following Dean's pickup truck in their car with Lawrence driving. Lawrence did not see the Walters' car. Virginia saw a shadow in the road just prior to the collision and yelled at Lawrence who was able to stop and avoid colliding with Dean's pickup truck.
Walters sued Dean for the damages to his Monte Carlo. Dean filed an answer denying fault and also filed an affirmative defense asserting the fault of the non-party, Andrew, was the sole cause of the collision. Trial to the court resulted in a judgment adverse to Walters.
The issue for our determination in this case is whether the judgment is contrary to law because the trial court failed to consider and properly apply the Indiana Comparative Fault Act. (Ind. Code Sec. 34-4-33-1 et seq.).
Before considering the issue before us, we note that both parties for their statement of facts in their briefs have summarized the testimony of each witness. We have stated repeatedly that our appellate rules contemplate a narrative statement of the facts, and that a witness by witness summary of the testimony is not a statement of facts within the meaning of Ind. Rules of Procedure, Appellate Rule 8.3(A)(5). Elsperman v. Plump (1983), Ind.App., 443 N.E.2d 1206; Morris v. State (1982), Ind.App., 433 N.E.2d 74; Moore v. State (1981), Ind.App., 426 N.E.2d 86 (). Despite the failure of both parties to comply with the clear holdings of this court, because of the importance of this case as it relates to this state's comparative fault law, we will decide this case upon the merits.
Our General Assembly in 1983 adopted a comparative fault law, rejecting the common law doctrine of contributory negligence as a complete bar to recovery in negligence cases, thereby bringing this state in line with the vast majority of states which adhere to some form of a comparative fault law. 3 As a result of this legislation, negligence actions predicated upon occurrences on and after January 1, 1985, with some statutory exceptions not applicable here, are governed by the Indiana comparative fault law. Since the collision here occurred on March 2, 1985, the comparative fault act (Ind. Code Sec. 34-4-33-1 et seq.) governed this case, and the trial court was bound to consider and apply the act in making its decision.
Those sections of the comparative fault law applicable to this case and which the court was required to consider and apply are:
(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 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.
"(b) In an action based on fault that is brought against two (2) or more defendants, 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 defendants, and of any person who is a nonparty. The percentage of fault figures of parties to the action may total less than 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 defendants 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 shall then 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 each defendant by the amount of damages determined under subdivision (3) and shall enter a verdict against each such defendant (and such other defendants as are liable with the defendant by reason of their relationship to such defendant) in the amount of the product of the multiplication of each defendant's percentage of fault times the amount of damages as determined under subdivision (3).
(b) The burden of proof of a nonparty defense is upon the defendant, who must affirmatively plead the defense. However, nothing in this chapter relieves the claimant of the burden of proving that fault on the part of the defendant or defendants caused, in whole or in part, the damages of the claimant.
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