Whisman v. Fawcett

• Decision Date: 09 November 1984
• Docket Number: No. 1184S437,1184S437
• Citation: 470 N.E.2d 73
• Parties: Brian WHISMAN, Appellant (Plaintiff below), v. Lawrence FAWCETT, Fraternal Order of Eagles, Lodge 741, and Veterans of Foreign Wars, Post 1987, Appellees (Defendants below).
• Court: Indiana Supreme Court

Page 73

470 N.E.2d 73

Brian WHISMAN, Appellant (Plaintiff below), v. Lawrence FAWCETT, Fraternal Order of Eagles, Lodge 741, and Veterans of Foreign Wars, Post 1987, Appellees (Defendants below).

No. 1184S437.

Supreme Court of Indiana.

Nov. 9, 1984.

Thomas J. Lantz, David W. Paugh, Montgomery, Elsner & Pardieck, Seymour, for appellant.

Gerald G. Angermeier, Jewell, Crump & Angermeier, Columbus, for appellees.

ON PETITION TO TRANSFER

HUNTER, Justice.

This case is before this Court upon the petition to transfer of defendants-appellees, Lawrence Fawcett, Fraternal Order of Eagles, Lodge 741, and Veterans of Foreign Wars, Post 1987. Plaintiff-appellant, Brian Whisman, brought a negligence action against defendants for injuries he sustained when Fawcett's car struck him. The trial court entered judgment upon a jury verdict in favor of all three defendants. Plaintiff appealed. The Fourth District Court of Appeals reversed the trial court's decision in Whisman v. Fawcett, (1983) Ind.App., 456 N.E.2d 1068. The Court of Appeals found the trial court erred in allowing the defendants to raise the defense of contributory negligence and incurred risk. The Court ruled that defendants should not have been allowed to raise those issues because they were not explicitly set forth in the trial court's pretrial order. Because we believe the trial court had the discretion to construe its pretrial order to include the issues of contributory negligence and incurred risk, we now grant defendants' petition to transfer. The decision and opinion of the Court of Appeals are hereby vacated, and the trial court's judgment is affirmed. The essential facts were succinctly summarized by the Court of Appeals:

"On the evening of November 21, 1979, Lawrence Fawcett attended a Thanksgiving dance at the V.F.W. post in Columbus, Indiana. Over several hours, Fawcett drank four beers. Fawcett stayed at the V.F.W. until 10:00 or 11:00 p.m., then went to the Eagles Lodge. Bartenders there testified that Fawcett appeared drunk when he entered the bar, and one bartender refused to serve Fawcett any beer. This bartender testified he did not remember seeing Fawcett when he was not drunk. Fawcett went to another room at the Eagles where a dance was in progress. While he was there, two of his friends each brought Fawcett a beer. He drank one and half bottles of beer and left at 1:00 a.m.

"On this same evening, Brian Whisman and three friends split a six-pack of beer--Whisman had two--and went 'mudding' in a jeep. They returned to Columbus after midnight. As they drove into town, a Monte Carlo pulled up beside them. Whisman's friend, who was driving the jeep, argued with the other car's driver as they drove along. Finally the cars stopped side by side in the road blocking both east-bound lanes, and Whisman's friend got out to confront the other driver. Whisman climbed out of the back of the jeep and stood to the rear of the two cars.

"At this point Fawcett, who had just left the Eagles, was also east-bound, driving at some distance behind the two cars. Traveling in the left lane, Fawcett saw the Monte Carlo's tail lights in front of him and moved into the right lane. Fawcett testified he did not see the jeep blocking this lane. Fawcett also testified that, as he neared the jeep, Whisman jumped in front of him waving his arms. Whisman denied this. Fawcett applied his brakes but slid into Whisman, pinning him against the jeep. Whisman was seriously injured. As a result of this incident, Fawcett was convicted of driving while under the influence of alcohol."

Whisman, 456 N.E.2d at 1069.

Thereafter, Whisman filed a negligence action against Fawcett, the Eagles, and the V.F.W. seeking damages for his injuries. The jury subsequently returned a verdict in favor of all three defendants. Whisman appealed and the Court of Appeals reversed and remanded the case for a new trial. The Court held that Ind.R.Tr.P. 16(J) ¹ rendered erroneous the trial court's decision to admit evidence of contributory negligence and incurred risk, and to instruct the jury accordingly. The Court determined that the pretrial order did not include these defenses as issues to be tried, and such issues therefore could only be tried if appellees could show that a modification of the pretrial order was necessary to prevent manifest injustice. The Court of Appeals concluded that no such showing was made and thus the trial court's adjudication of such issues was erroneous.

However, we now reverse because we believe that no modification of the pretrial order was necessary for the issues to be properly triable in this case. We believe the trial court did not exceed its discretion in interpreting its pretrial order to include the issues of contributory negligence and incurred risk since such issues are at least arguably inherent in the larger issues of negligence and proximate cause, which were included in the pretrial order.

We have had occasion to emphasize the proper place and function of the pretrial conference and ensuing order in the adjudicatory process. "When a pre-trial order specifies the issues of the case, the parties will not be permitted to go into other issues, unless the pre-trial order is amended," since "[t]he express purpose of Trial Rule 16 is to provide for a pre-trial conference in which to simplify the issues raised by the pleadings and to define these issues within a pre-trial order." North Miami Consolidated School District v. State ex rel. Manchester Community Schools, (1973) 261 Ind. 17, 20, 300 N.E.2d 59, 62. However, though we recognize the binding effect of a pretrial order, this does not mean that it is rigidly and pointlessly adhered to at trial. The application of preclusion always is viewed as a matter of judicial discretion. Eagle Motor Lines, Inc. v. Galloway, (1981) Ind.App., 426 N.E.2d 1322; Dominguez v. Gallmeyer, (1980) Ind.App., 402 N.E.2d 1295. Moreover, our courts have expressed agreement with the principle expressed in 62 Am.Jur.2d Pretrial Conference Sec. 29 at 661 (1972) that:

"[a] pretrial order should be liberally construed to embrace all the legal and factual theories inherent in the issues defined therein. Any other construction of the order would tend to unduly constrict the trial of the case and defeat the central and salutary purpose of the rule on pretrial which is to insure the trial of every lawsuit on its merits." (Emphasis added.)

See, Hundt v. LaCrosse Grain Co., Inc., (1981) Ind.App., 425 N.E.2d 687, rev'd on other grounds, (1983) Ind., 446 N.E.2d 327; Galloway, 426 N.E.2d at 1327. Likewise, we must keep in mind that a pretrial order "is a procedural tool to facilitate the trial of a lawsuit on its merits and not to defeat it on a technicality. We must not allow ourselves to construe the pre-trial order in the spirit of common law pleading." Century Refining Co. v. Hall, 316 F.2d 15, 20 (10th Cir.1963). Furthermore, the reasons for avoiding overly technical application of pretrial orders are amplified when, as in this case, the pretrial order is not definitive, specific, complete, or detailed. ² See, e.g., Balon v. Hotel & Restaurant Supplies, Inc., (1967) 6 Ariz.App. 481, 433 P.2d 661, vacated on other grounds, (1968) 103 Ariz. 474, 445 P.2d 833; 62 Am.Jur.2d Pretrial Conference Sec. 35 at 668 (1972).

Construing the pretrial order in this case with the generality evidenced by its wording, we see no basis for finding that the issues of contributory negligence and incurred risk were not impliedly included in the pretrial order. The order in this case generally raised the question of what was the proximate cause of plaintiff's injuries. We believe that it is certainly not unreasonable to suggest that any discussion of proximate cause in a negligence action necessarily involves the issue regarding whether contributory negligence was present. The fact that the issues are so inextricably bound together that they cannot be separated is evidenced by both the underlying rationale of Ind.R.Tr.P. 9.1(A) and also our historical understanding of contributory negligence. As Dean Harvey observes with respect to Rule 9.1(A):

It is interesting to note that the Commission did not adopt as part of the new code the provisions of Federal Rule 8(c) which requires contributory negligence, assumption of risk and incurred risk to be separately and specifically pleaded as affirmative defenses. Under the new Indiana rule, by denying the allegation of negligence the defendant has available to him any of the three defenses on which he relies. The reason for so drafting the new rule, which is in reality a true codification of the old law, is that since all three defenses are really matters of proof tending to negate defendant's responsibility for damages, such matters of proof can fairly be said to be in issue when negligence is pleaded by the plaintiff. In effect, the plaintiff can be expected to know that the defendant will try to prove that plaintiff's injury was the result of plaintiff's own conduct." (Emphasis added.)

1 W. HARVEY, IND. PRACTICE, p. 563 (1969). Furthermore, a review of modern cases suggests that contributory negligence is in effect an extension of the rule of proximate cause. It further shows that a defendant in a negligence case must show proximate cause in order to have a successful contributory negligence defense. Thus, it would be logical to conclude that proximate cause is the underlying rationale for the doctrine of contributory negligence. See, e.g., Huey v. Milligan, (1961) 242 Ind. 93, 175 N.E.2d 698.

We conclude that the trial court did not exceed its discretion in allowing defendants to raise contributory negligence and incurred risk as issues at trial and thus there was no trial court error.

In plaintiff's original appeal he raised several issues which were not addressed because the Court of Appeals reversed the trial court on the issue discussed above. Consequently, it is appropriate for us now to consider those...