Witte v. Mundy ex rel. Mundy

• Citation: 820 N.E.2d 128
• Decision Date: 06 January 2005
• Docket Number: No. 17S05-0406-CV-248.,17S05-0406-CV-248.
• Parties: Monica, James, and Diane WITTE, Appellants (Defendants below), v. Mikayla MUNDY, a minor, by her next friend, parent and guardian, Kristin MUNDY, Appellees (Plaintiffs below).
• Court: Supreme Court of Indiana

820 N.E.2d 128

Monica, James, and Diane WITTE, Appellants (Defendants below), v. Mikayla MUNDY, a minor, by her next friend, parent and guardian, Kristin MUNDY, Appellees (Plaintiffs below).

No. 17S05-0406-CV-248.

Supreme Court of Indiana.

January 6, 2005.

Michael H. Michmerhuizen, Patrick G. Murphy, Fort Wayne, IN, Attorney for Appellants.

Konrad M.L. Urberg, Joseph Christoff, Fort Wayne, IN, Attorney for Appellees.

BOEHM, Justice.

A child and her mother sued when the child was struck by the defendants' car. On the eve of trial the mother moved to dismiss her claim. The trial court granted the motion to dismiss but denied the defendants' motion to add the mother as a nonparty for purposes of comparative fault. The jury then returned a verdict for the defense. We hold that it was error to refuse to add the mother as a nonparty, but because the plaintiffs invited the error, neither plaintiff can obtain a new trial on that basis.

Factual and Procedural Background

Five-year-old Mikayla Mundy was riding her bicycle when she ran a stop sign and was struck by a car driven by Monica Witte, also a minor. Mikayla's mother, Kristin, sued as Mikayla's next friend and also in her own capacity, naming Witte and her parents as defendants. The defendants responded by asserting that Witte was not negligent and also that the accident was due to negligence on the part of both Mikayla and Kristin.

Shortly before trial, Kristin moved to dismiss her individual claim without prejudice. At the same time, Mikayla moved for an order precluding the defendants from offering evidence or arguing to the jury that Kristin contributed to the injury through negligent supervision of Mikayla. The defendants objected to the dismissal of Kristin as a plaintiff. In the alternative, if Kristin was to be dismissed, the defendants requested leave to amend their answer to include Kristin as a nonparty defendant under the comparative fault statute. The trial court granted the motion to dismiss Kristin but denied the defendants' motion to add Kristin as a nonparty defendant. The trial court also granted Mikayla's motion in limine to preclude the defense from introducing evidence of Kristin's negligence. At trial, however, over Mikayla's objection, the defense was permitted to question Mikayla about whether her mother had taught her bicycle safety and to examine Kristin regarding her supervision of Mikayla. In closing argument, the defense argued that Kristin's failure to train and supervise Mikayla was the proximate cause of Mikayla's injuries.

The jury returned a verdict in favor of the defendants and judgment was entered accordingly. Mikayla then filed a motion to correct error, alleging that the defendants' contentions that Kristin's failure to supervise Mikayla was the proximate cause of Mikayla's injuries violated the court's earlier rulings and was improper. The defendants responded that the trial court erred in denying their request to add Kristin as a nonparty and that the testimony allowed at trial merely corrected that error. The trial court granted Mikayla's motion and set aside the jury verdict. The defendants appealed and the Court of Appeals affirmed the grant of a new trial based on its conclusion that the trial court erred in denying the defendants' request to name Kristin as a nonparty. Witte v. Mundy, 800 N.E.2d 185, 191 (Ind.Ct.App.2003). This Court granted transfer. Witte v. Mundy, 812 N.E.2d 806 (Ind.2004).

I. Failure to Permit Adding a Nonparty

The trial court's denial of the defendants' motion to add Kristin as a nonparty raises two distinct issues: 1) whether Kristin, Mikayla's parent, was a proper nonparty defendant in an action by her child; and 2) if so, whether it was an abuse of discretion to deny the motion to add her as a nonparty on the eve of trial.

A. The Parent as a Nonparty in a Suit by the Child

If Kristin would not have been a proper nonparty defendant in a suit brought by Mikayla alone, it was proper to deny the defendants' motion, whether or not occasioned by late breaking news from the plaintiffs. The Court of Appeals reasoned that the trial court's error required a retrial and affirmed the trial court's grant of Mikayla's motion to correct error. The court explained that in a comparative fault case, fault may be allocated only to a plaintiff, a defendant, or a named nonparty. Witte, 800 N.E.2d at 191. The court pointed out that the jury was given only general verdict forms that did not allow for the allocation of fault to Kristin. Id. The Court of Appeals reasoned, "it is clear, from the verdict for the Wittes and from the fact that fault could not be assigned to Mikayla by virtue of her age, that the jury allocated fault to Kristin. However, because Kristin was not named as a nonparty, it should not have done so." Id. at 191.

We do not agree that the jury necessarily allocated fault to Kristin. That explanation excludes the very real possibility that the jury found Witte not negligent. In that case, there would be no need to allocate fault to Kristin. In addition, under the proximate cause instructions the jury could have found Kristin's actions broke the causal connection between the injury and whatever negligence was attributable to Witte irrespective of whether Kristin's "intervening cause" was the result of negligence.¹ If so, Kristin's role in the accident would preclude liability if her actions were not reasonably foreseeable by Witte. See Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind.2002)

.

The issue remains, then, whether Kristin was a proper nonparty defendant. The Court of Appeals held that she was, and we agree. The courts of this state have reasoned that a child cannot be capable of negligence when the child is "of such tender years that it is, by legal presumption, incapable of judgment or discretion." Terre Haute, Indianapolis & Eastern Traction Co. v. McDermott, 82 Ind.App. 134, 140, 144 N.E. 620, 622 (1924) (quoting Elwood St. R. Co. v. Ross, 26 Ind.App. 258, 58 N.E. 535 (1900)), trans. denied. A judicially developed rule evolved that children under the age of seven are not capable of negligence. Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind.2000) (quoting Bailey v. Martz, 488 N.E.2d 716, 721 (Ind.Ct.App.1986)). Here, the trial court instructed that: "Children ... less than the age of seven may not be assessed any fault for their action[s], even if those actions proximately caused their injury or damages. Should you find that Kristin Mundy was negligent, you cannot hold Mikayla Mundy responsible for the negligence of her mother." Given this instruction, it seems likely that the trial court's denial of the motion to add Kristin as a nonparty was based on the view that she could not legally be a nonparty and not on an exercise of discretion based on the timing of the motion. We think that Kristin was a proper nonparty. It is one thing to say a child under age seven is "incapable of judgment or discretion" and therefore, as a matter of law, cannot be negligent. It is another thing to conclude that an adult's negligent supervision cannot be a contributing cause to the child's injury relieving a third party of some or all liability.

In a comparative fault cause, "the jury shall determine the percentage of fault of the claimant, of the defendant, and of any person who is a nonparty. The jury may not be informed of any immunity defense that is available to a nonparty." Ind.Code § 34-51-2-7 (2004). As the Court of Appeals pointed out, until 1995, a "nonparty" was defined as "a person who is, or may be liable to the claimant in part or in whole for the damages claimed but who has not been joined in the action as a defendant by the claimant." I.C. § 34-4-33-2(a) (1995). Under that definition, it would not have been proper to add Kristin as a nonparty because, as Mikayla's mother, she would not be liable to her for her injuries. See Doe v. Shults-Lewis Child and Family Servs., Inc., 718 N.E.2d 738, 746 (Ind.1999)

(citing Barnes v. Barnes, 603 N.E.2d 1337, 1339 (Ind.1992)). However, the definition of nonparty was amended in 1995 to define a "nonparty" as "a person who caused or contributed to cause the alleged injury, death, or damage to property but who has not been joined in the action as a defendant." I.C. § 34-6-2-88 (2004). This provision was presumably chiefly designed to permit employers of injured workers to be named as nonparties even though under workers' compensation law they have no tort liability to a worker injured by accident on the job. See James L. Petersen, Tort Reform, Act No. 1741 Res Gestae Sept. 1995, at 24, 28. As the Court of Appeals has held, the comparative fault statute "no longer requires that the nonparty be liable to the plaintiff, but only that he or she have caused or contributed to the cause of the plaintiff's injury." Bulldog Battery Corp. v. Pica Invs., 736 N.E.2d 333, 338 (Ind.Ct.App.2000). This reasoning applies to parent-child immunity just as it does to workers' compensation. The basic point of the statute is that a defendant should be required to compensate an injured party only in proportion to the defendant's fault. See Estate of Hunter v. General Motors Corp., 729 So.2d 1264, 1274 (Miss.1999); Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn.2000); Kirby Bldg. Sys. v. Mineral Explorations Co., 704 P.2d 1266, 1272 (Wyo.1985). Despite her immunity from suit by her child, the defense should have been permitted to name Kristin as a nonparty to permit the jury to determine whether her negligence contributed to the accident. This case was tried with no nonparty defendant. The trial court's instruction that the parent's negligence is not attributable to the child would have been proper in that procedural posture. City of Evansville v. Senhenn, 151 Ind. 42, 48, 47 N.E. 634, 635 (1897). For the reasons given, however, it was error to deny the defendants' motion to add Kristin as a nonparty defendant.

The trial court's refusal to add Kristin as...