Warren v. City of Indianapolis, 2-1275A365

• Decision Date: 25 May 1978
• Docket Number: No. 2-1275A365,2-1275A365
• Parties: Wilson H. WARREN, Helen V. Warren, George L. Diven, Administrator of the Estate of Robert David Warren, Appellants (Plaintiffs below), v. CITY OF INDIANAPOLIS and John K. Chandler, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 1163

375 N.E.2d 1163

176 Ind.App. 481

Wilson H. WARREN, Helen V. Warren, George L. Diven,

Administrator of the Estate of Robert David

Warren, Appellants (Plaintiffs below), v. CITY OF INDIANAPOLIS and John K. Chandler, Appellees

(Defendants below).

No. 2-1275A365.

Court of Appeals of Indiana,Second District.

May 25, 1978.

John L. Fox, Frank E. Spencer, Indianapolis, for appellants.

Rex P. Killian, John C. Ruckelshaus, Ruckelshaus, Bobbitt & O'Connor, David R. Frick, Corp. Counsel, City of Indianapolis, William L. Soards, Soards & Carroll, Indianapolis, for appellees.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiffs-Appellants George L. Diven, et al. (Administrator) appeals from a negative judgment in a wrongful death action claiming the trial court erred by failing to give a tendered instruction and by granting a motion in limine.

We affirm.

FACTS

On May 30, 1970, at 8:00 P.M., Robert Warren (Warren) ingested a handful of secobarbitol pills while in his father's home in Indianapolis. His father, fearing that the pills and alcohol would have serious effects, attempted to take him to the hospital. En route, Warren jumped from the car, and eluded his father who attempted to find him.

At 12:24 A.M., May 31, Officer John Chandler (Chandler) of the Indianapolis Police Department received a report of an unconscious man in downtown Indianapolis. Upon investigation, Chandler found Warren unconscious in a parking lot near a tavern. Believing him to be drunk, Chandler tried to place him in his squad car and take him to a hospital. However, he decided to leave Warren in a grassy field in order to "sleep it off". Later that night Warren died from barbiturate intoxication.

A police disciplinary hearing was subsequently held which apparently found Chandler guilty of violation of a police regulation.

Warren's parents and the Administrator brought an action against Chandler and the City of Indianapolis claiming wrongful death. Immediately prior to trial Chandler's attorney filed a motion in limine which, in relevant part, reads as follows:

MOTION IN LIMINE

Come now the defendants and each of them and move the Court, prior to the introduction of evidence and jury selection in the above entitled cause and in an effort to avoid the interjection of improper and prejudicial matters and in anticipation that plaintiffs' counsel would allude to certain such matters, for a protective order in limine as follows:

1.) That plaintiffs and plaintiffs' counsel not allude to or make reference to any prior criminal proceedings or disciplinary proceedings involving the defendants, City of Indianapolis and/or John K. Chandler, in regard to matters following the occurrence of May 30, 1970 and May 31, 1970. That plaintiffs and their counsel be precluded from using any remark, statement, question, answer, inference, innuendo or testimony of any nature which might inform the jury or infer to the jury the forementioned circumstances.

The Motion as to paragraph # 1 was granted.

At the conclusion of the trial the Administrator offered the following instruction which was rejected by the court:

I instruct you that a municipality has a duty to maintain its streets and public ways and to render assistance, attendance and/or treatment to persons found thereon in conditions of apparent helplessness.

Instead, the court gave the following negligence instruction which was not objected to by either party:

Negligence, either on the part of the Plaintiffs or the Defendants, is the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances, or the doing of some thing which a reasonably careful and prudent person would not have done under the same or like circumstances; in other words, negligence is the failure to exercise reasonable or ordinary care.

Reasonable care or ordinary care, on the part of both the Plaintiffs and the

Defendants, is such care as a reasonably careful and ordinarily prudent person would exercise under the same or similar circumstances.

ISSUES

Following a judgment in favor of the City, the Administrator brings this appeal and raises the following issues: ¹

1. Did the trial court err by granting a Motion in Limine which excluded evidence of police disciplinary measures taken against Chandler?

2. Did the trial court improperly refuse to give defendant's tendered instruction on duty to render assistance to a helpless person?

Initially, the Administrator contends the trial court erred by failing to allow testimony regarding the outcome of Chandler's disciplinary hearing. He argues that this hearing amounts to an admission against interest and should have been admissible.

The City replies that the disciplinary hearing had totally different issues and burden of proof from this trial and is irrelevant. Also, it compares the hearing to safety measures which are instituted subsequent to an accident which, for public policy reasons, are considered to be inadmissible at trial.

Secondly, the Administrator contends that his instruction on the duty of the City in aiding people on the city streets should have been adopted by the trial court. The City responds that the negligence instruction given was sufficient.

DECISION

ISSUE ONE

CONCLUSION It was not error to grant Chandler's motion in limine.

The Administrator's brief is barren of any cases in which the record of disciplinary proceedings of a police officer was found to be admissible at a later trial; nor does our research reveal any. The cases cited are of an ancient vintage relating to admission of an agent's direct statements concerning contractual or tort liability, see e. g. Los Angeles City Water Co. v. City of Los Angeles, 88 F. 720 (S.D.Cal.1898); Farrell v. City of DuBuque, 129 Iowa 447, 105 N.W. 696 (1906), and are not applicable.

However, a somewhat analogous situation is one in which an attempt is made to introduce a prior criminal judgment into evidence in a civil suit arising out of the same incident. Montgomery v. Crum (1928), 199 Ind. 660, 161 N.E. 251; Hambey v. Hill (1971), 148 Ind.App. 662, 269 N.E.2d 394. In Montgomery and Hambey it was determined that, absent a confession, such judgments were inadmissible. As the court observed in Montgomery:

One reason for this rule is the dissimilarity between civil and criminal actions in objects, issues, results, procedure, parties, and in the application of the rules of evidence both as to weight and competency. 199 Ind. at 686, 161 N.E. at 261.

Also to be considered is the difference in the burden of proof required in each type of case. See Dimmick v. Follis (1953), 123 Ind.App. 701, 111 N.E.2d 486.

This rationale is persuasive. There is nothing in the record to indicate what Chandler was charged with, what the finding of the Police Board was, nor the burden of proof used. The only result of the Police Board inquiry that can be gleaned from the record was that Chandler violated some department regulation . . . which violation may or may not have been relevant to his personal tort liability. Absent some admission of liability on his part, admission of this evidence was irrelevant and properly refused. See Hambey v. Hill, supra; Rust

v. Watson (1966), 141 Ind.App. 59, 215 N.E.2d 42, 217 N.E.2d 859. ²

ISSUE TWO

CONCLUSION The trial court properly refused to give Warren's tendered instruction as to rendering assistance to a helpless person.

Fundamental to our common law doctrine of negligence is the distinction between "misfeasance," active misconduct which causes injury to another, and "nonfeasance," the failure to take action to protect another from harm. Absent some definite relationship between the parties sufficient to justify the imposition of a duty to act, courts have consistently refused to impose liability for nonfeasance. ³ See, W. Prosser, The Law of Torts § 56 (4th ed. 1971).

This common law refusal to recognize "nonfeasance" as a basis for liability is so deeply ingrained in our system of law that courts have refused to require a physician to aid a dying patient, Hurley v. Eddingfield (1901), 156 Ind. 416, 59 N.E. 1058, an expert swimmer to aid a drowning person, Handiboe v. McCarthy (1966), 114 Ga.App. 541, 151 S.E.2d 905, or a person to cry a warning to one who is walking into a dangerous machine. Buch v. Amory Mfg. Co. (1898), 69 N.H. 257, 44 A. 809. See Prosser, supra. Such a policy sometimes produces harsh results, but the problems inherent in devising a workable rule have discouraged deviation from the concept of non-liability for mere nonfeasance, (e. g., how is liability imposed on one hundred healthy people who fail to rescue an invalid from a fire?).

The exception to the general rule of non-liability for nonfeasance has arisen in certain cases in which the relationship of the parties is such as to impose a duty to act, e. g., a carrier to a passenger, Continental Southern Lines, Inc. v. Robertson (1961), 241 Miss. 796, 133 So.2d 543; an innkeeper to a guest, Stewart v. Weiner (1922), 108 Neb. 49, 187 N.W. 121; a ship owner to a seaman, Harris v. Pennsylvania R. R. Co. (4 Cir. 19...