Willis v. Westerfield

• Decision Date: 25 February 2004
• Docket Number: No. 49A02-0211-CV-930.,49A02-0211-CV-930.
• Parties: Ann WILLIS and Jeff Willis, Appellants-Plaintiffs, v. Christopher WESTERFIELD, Appellee-Defendant.
• Court: Indiana Appellate Court

803 N.E.2d 1147

Ann WILLIS and Jeff Willis, Appellants-Plaintiffs, v. Christopher WESTERFIELD, Appellee-Defendant.

No. 49A02-0211-CV-930.

Court of Appeals of Indiana.

February 25, 2004.

Robert E. Lehman, Lehman & Benedetto, Indianapolis, IN, Jeffrey A. Cooke, The Cooke Law Office, Lafayette, IN, for Appellants.

Thomas D. Collignon, Collignon & Dietrick, P.C., Indianapolis, IN, for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Ann and Jeff Willis (collectively, "the Willises") allege that they should be granted a new trial as to damages on several grounds. Because we find that Christopher Westerfield never conceded liability, we reject the Willises' contention that the trial court erred by allowing the jury to determine fault. Next, we find that the trial court erred by instructing the jury on the affirmative defense of sudden emergency when Westerfield waived this defense by not raising it in his pleadings. We find this error harmless, however, because the jury did not predicate its verdict on this instruction. Additionally, we find that the trial court did not err by instructing the jury on the affirmative defense of failure to mitigate damages even though Westerfield did not call a medical expert to testify because expert testimony was not required. Finally, we find that the Willises have waived review of the denial of their motion to redact portions of their expert's deposition by failing to include either the videotape or transcript of the deposition as part of the record. Based on our resolution of these issues, we affirm.¹

Facts and Procedural History

On May 8, 1996, Westerfield rear-ended Ann Willis's ("Ann") vehicle as it was stopped at a red light. Ann reported no injury at the scene and declined the investigating officer's offer to call an ambulance. Westerfield simply advised the officer taking the accident report that he was unable to stop in time to avoid striking Ann's vehicle. Two and one-half years after the collision, Westerfield elaborated by stating that Ann suddenly and without warning changed lanes and applied her brakes at the intersection and that he was unable to stop his vehicle before it struck Ann's vehicle because of wet pavement and Ann's quick lane change.

In December 1997, the Willises filed their Complaint for Damages against Westerfield. Subsequently, Westerfield filed an Answer, which he later amended. Neither the original Answer nor the Amended Answer averred the affirmative defense of sudden emergency. Additionally, Westerfield moved the trial court to delete portions of a preliminary instruction—which implied that Westerfield had the burden to prove negligence on the part of Ann or which suggested that the law of contributory negligence applies—because

[c]ontributory negligence does not apply to the case at bar. The antiquated rule of contributory negligence has survived the Comparative Fault Act ONLY as to governmental entity defendants to which the Comparative Fault Act does not apply. Defendant is NOT raising "contributory negligence" as an affirmative defense... Defendant is simply disputing that he was negligent.

Appellant's App. p. 66 (citations omitted). The trial court granted this motion.

At trial, the court admitted the videotaped deposition of Ann's treating physiatrist, Dr. Silbert, into evidence. Westerfield cross-examined Dr. Silbert at the deposition. The Willises moved the trial court to redact portions of Westerfield's cross-examination of Dr. Silbert. In particular, the Willises sought to exclude any references to Ann's pre-existing conditions, subsequent conditions, and any physical conditions unrelated to her collision injuries. Westerfield did not call a separate medical expert to testify on his behalf. At the close of evidence, Westerfield sought to have the jury instructed on the affirmative defense of sudden emergency. The Willises objected, claiming that Westerfield waived this defense by failing to raise it in his pleadings. The trial court overruled the Willises' objection and allowed the instruction.

Following the three-day trial, the jury returned a verdict in favor of the Willises, awarding them $5000 in compensatory damages without regard to fault. Based on a finding that Ann was fifty percent at fault, the $5000 verdict was reduced to $2500 in accordance with Indiana's Comparative Fault Act. The Willises filed this appeal seeking a new trial as to damages only.

Discussion and Decision

The Willises raise several issues on appeal, which we restate and reorder. First, the Willises allege that the trial court erred by allowing the jury to determine fault under Indiana's Comparative Fault Act because prior to trial Westerfield represented to the trial court that he was not asserting the affirmative defense of contributory negligence and consented to the trial court's order withdrawing contributory negligence as an issue in the case. Next, the Willises assert that the trial court erred in instructing the jury. In particular, they allege that the jury should not have been instructed on the affirmative defense of sudden emergency because he had waived the defense by not including it in his responsive pleadings. They also maintain that it was error to give the jury a failure to mitigate damages instruction because Westerfield did not call his own medical expert on this defense. Lastly, the Willises claim that the trial court erroneously denied their motion to strike certain portions of Westerfield's cross-examination of the Willises' medical expert. We address each argument in turn.

I. Contributory Negligence

The Willises contend that the trial court erred by allowing Westerfield to present evidence of Ann's fault in the collision after he withdrew his affirmative defense of contributory negligence. In his Answer to the Willises' 1997 Complaint, Westerfield asserted the affirmative defense of contributory negligence. Subsequently, Westerfield moved the trial court to withdraw his contributory negligence affirmative defense on the grounds that Indiana's Comparative Fault Act ("the Act")—not contributory negligence—governed the case.

The Act applies generally to damages actions based in fault that accrued on or after January 1, 1985. Ind. Code § 34-51-2-1. The primary objective of the Act was to modify the common law rule of contributory negligence under which plaintiffs were barred from recovery where they were only slightly negligent. Mendenhall v. Skinner & Broadbent Co., 728 N.E.2d 140, 142 (Ind.2000). The Act seeks to achieve this result through proportional allocation of fault, ensuring that each person whose fault contributed to cause injury bears his or her proportionate share of the total fault contributing to the injury. Id. The Act clarifies that in an action based on fault, any contributory fault chargeable to the plaintiffs diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the plaintiffs' contributory fault, but does not bar recovery unless the plaintiffs' contributory fault is greater than the fault of all persons whose fault proximately contributed to the plaintiffs' damages. Ind.Code §§ 34-51-2-5, -6.

The Willises construe the actions taken by Westerfield to eliminate his burden of proving Ann's contributory negligence as a concession that Ann was not at fault for the accident. Thus, they argue that the trial court should not have permitted Westerfield to adopt a contrary position and present evidence of Ann's fault in the collision during trial. The Willises' construction of Westerfield's actions, however, is erroneous. The record is replete with evidence that Westerfield moved the trial court to withdraw his affirmative defense of contributory negligence because the Indiana Comparative Fault Act governed this case, rather than contributory negligence, not because he was conceding he was completely at fault for the accident. Indeed, in both his Answer and his Amended Answer, Westerfield averred that he was not negligent. Therefore, we do not find that the trial court erred by allowing Westerfield to present evidence of Ann's fault in the collision.

II. Instructions

Additionally, the Willises allege that the trial court committed two instructional errors. First, the Willises maintain that the trial court erred by instructing the jury on sudden emergency because Westerfield did not assert sudden emergency as an affirmative defense in his pleadings. The Willises also argue that the trial court erred by instructing the jury on the affirmative defense of failure to mitigate damages because Westerfield did not offer any expert medical testimony regarding this defense. Initially, we note that the instruction of the jury is left to the sound judgment of the trial court, and our review of a trial court's decisions in this regard is highly deferential. Lashbrooks v. Schultz, 793 N.E.2d 1211, 1213 (Ind.Ct.App.2003), trans. dismissed. Accordingly, we will not disturb the trial court's judgment concerning instructions absent an abuse of discretion. Id. A trial court should give a tendered instruction if the instruction correctly states the law, the evidence supports the instruction, and the substance of the charge is not covered by other instructions. Id.

A. Sudden Emergency

The Willises argue that the trial court erred by instructing the jury on the doctrine of sudden emergency.² The Willises do not contend that the sudden emergency instruction misstated the law, was not supported by the evidence, or was covered by other instructions. Instead, they claim that Westerfield waived his right to raise the doctrine of sudden emergency by failing to allege sudden emergency as an affirmative defense in either his Answer or Amended Answer.

Indiana Trial Rule 8(C) provides that if a responsive pleading is necessary, the party filing the pleading must include within that responsive pleading any affirmative defense it seeks to assert. Paint Shuttle, Inc. v. Cont'l Cas. Co., 733...