Yates v. Hites

• Decision Date: 18 May 2018
• Docket Number: Court of Appeals Case No. 44A03–1710–CT–2459
• Citation: 102 N.E.3d 901
• Parties: Calvin B. YATES, Appellant–Plaintiff, v. Rebecca HITES, Appellee–Defendant.
• Court: Indiana Appellate Court

102 N.E.3d 901

Calvin B. YATES, Appellant–Plaintiff,

v.Rebecca HITES, Appellee–Defendant.

Court of Appeals Case No. 44A03–1710–CT–2459

Court of Appeals of Indiana.

FILED May 18, 2018

Attorneys for Appellant: Robert D. Brown, Sarah M. Cafiero, Kenneth J. Allen Law Group, LLC, Valparaiso, Indiana

Attorney for Appellee: J. Patrick Schomaker, Smith, Rolfes & Skavdahl Company, LPA, Cincinnati, Ohio

Bailey, Judge.

Case Summary

[1] Calvin B. Yates ("Yates") filed a civil lawsuit against Rebecca Hites ("Hites") for personal injuries arising out of a motor vehicle accident. Yates appeals the judgment, following a jury trial, in favor of Hites. Yates raises only the following issue on appeal: whether the trial court abused its discretion when it gave the jury an instruction on sudden emergency.

[2] We reverse and remand for a new trial.

Facts and Procedural History

[3] In the early morning of January 31, 2014, Hites, who lives in Shipshewana, received a phone call from her friend, Dave Smith ("Smith"). Smith asked Hites if she would pick him up because his car had broken down on County Road 43. While traveling westbound on U.S. 20 on her way to assist Smith, Hites suddenly lost control of her vehicle, causing her vehicle to swerve across the centerline of U.S. 20 and strike Yates' eastbound vehicle. Yates sustained injuries as a result of the crash.

[4] On August 10, 2015, Yates filed a complaint against Hites, alleging that she negligently and recklessly drove her vehicle so as to cross the centerline, crash into his vehicle, and cause him personal injuries. Prior to the jury trial, Hites requested a special jury instruction regarding "sudden emergency." Appellant's App. Vol. II at 136–139. However, Yates moved in limine to exclude testimony, evidence, or argument that Hites was confronted with a sudden emergency. Id. at 94. Yates also moved in limine to exclude any testimony or argument that Hites "drove over 'black ice' or that 'black ice' somehow caused the motor vehicle crash," since Hites had stated in her deposition that she had not seen any black ice on the roadway and that her "contention that there was black ice on the road [was] just an assumption on [her] part." Id. at 93, 117–18.¹ On September 12, 2017, the trial court granted Yates's motions in limine regarding black ice and sudden emergency. And, on September 20, the trial court rejected Hites's proposed instruction regarding sudden emergency.

[5] The case proceeded to jury trial on September 26–28. At trial, Hites testified that, at the time of year when she was driving (i.e., January), "there's a potential for snow and ice to be on the roadway," Tr. Vol. III at 57, and a "possibility that the roads could be slippery," id. at 55. She also testified that the day prior to the accident, i.e., January 30, the "weather had been particularly bad and hard for cars." Id. at 55. However, she testified that, while she was driving on January 31, 2014, it was not snowing, raining, or sleeting, and the roads "for the most part were clear." Id. at 54–55. She testified that visibility was "fine," id. at 54, and she had not seen any ice on the roads that morning, Tr. Vol. IV at 48. Hites testified she was traveling at 30 miles per hour on U.S. 20, although the speed limit was 50 miles per hour. Id. at 45; Tr. Vol. III at 56. She also testified that, while she was driving that day, she had both hands on the steering wheel and her eyes on the road, and that she was not "doing anything at all that might have distracted [her] from driving." Tr. Vol. IV at 48. She testified that the vehicle she was driving was equipped with "hands free or Bluetooth capabilities" for using a cellular phone. Id. at 45.

[6] Yates introduced into evidence the AT & T records of Hites's cellular telephone calls on January 31, 2014. Plaintiff's Ex. 26, Ex. Vol. VI. Those records demonstrated that Hites placed a five-minute telephone call to Smith at 8:53 a.m.; a two-minute call to her husband, William Hites Jr. ("William"), at 9:08 a.m.; a one-minute phone call to Suzanne Frazier ("Suzanne"), the owner of the car Hites was driving, at 9:10 a.m.; and a two-minute phone call to Suzanne's husband, James Frazier ("James"), at 9:11 a.m. At trial, Hites testified that she did not remember making any telephone calls in the moments before the crash, Tr. Vol. III at 65, at the time of the crash, id. at 69–70, or after the crash, id. at 70. In fact, Hites testified she did not remember any of the events immediately following the crash. However, she testified that she did not dispute the accuracy of the AT & T records in Exhibit 26.

[7] When Yates asked Hites at trial whether she had called her husband at 9:08 a.m. "to let him know that [she] had stopped at the gas station and used the bank card to gas up," Hites testified that, although she did not remember calling anyone before the crash, Tr. Vol. III at 65, it was "probably" true that she had called her husband for that reason, id. at 50. However, William testified that Hites had called him a "little after nine o'clock in the morning" on that day to tell him that she had been "in an auto accident." Tr. Vol. IV at 35. And Suzanne also testified that the phone call she received from Hites that morning was after the crash; she stated that Hites called her to tell her about the crash, and that she had not talked to Hites on that day before that call. Id. at 105–06.

[8] Hites testified she suddenly lost control of the vehicle on January 31. She stated that, as the rear end of the vehicle slid left, she "tried to counter-steer." Id. at 44. Yates also testified that, when he saw Hites's vehicle coming toward him in his lane, "the driver attempted to correct by making a rapid sharp turn to the right," before her vehicle "fishtailed" and struck his vehicle. Tr. Vol. III at 206.

[9] Master Trooper Marc Leatherman of the Indiana State Police ("Trooper Leatherman") did not witness the crash, but he arrived at the scene of the crash at 9:13 a.m. He testified that he was told by Doug VanVooren ("VanVooren"), an eye-witness to the crash, that it appeared to VanVooren that Hites "was going too fast for the existing road conditions that morning." Id. at 81–82. Trooper Leatherman testified that "there were quite long stretches of U.S. 20 that were covered in ice that morning," and the ice was "black" so that "you wouldn't know it until ... your vehicle came upon it." Id. at 89. Trooper Leatherman believed the accident happened at 9:13 a.m., but testified that "[i]t may very well have" happened before 9:08 a.m. Id. at 87. He testified that, after completing his investigation of the crash, he concluded that Hites had been "driving at a speed too fast for the existing weather conditions that day." Id. at 83–84.

[10] At the close of evidence, but before closing arguments, Hites renewed her request that the trial court give her previously-tendered jury instruction regarding sudden emergency. Hites noted that Yates's own witness, Trooper Leatherman, had testified that there was black ice on the roadway at the time of the crash, thereby providing evidence supporting a sudden emergency instruction. The trial court agreed. Over Yates's objection, the trial court granted Hites's request and instructed the jury as follows:

FINAL INSTRUCTION # 2

Defendant claims she was not at fault because she acted with reasonable care in an emergency situation. Defendant was not at fault if she proves the following by the greater weight of the evidence:

(1) she was faced with a sudden emergency;

(2) she did not cause the emergency;

(3)she did not have enough time to consider her options; and

(4) she acted as a reasonably careful person would act when facing a similar emergency, even if a different course of action might later seem to have been a better choice.

Appellant's App. at 40. The court also gave the following relevant portions of an instruction regarding negligence:

FINAL INSTRUCTION # 1

* * *

Plaintiff, CALVIN B. YATES, claims Defendant, REBECCA HITES, was negligent. Negligence is the failure to use reasonable care. A person may be negligent by acting or failing to act. A person is negligent if he does something a reasonably careful person would not do in the same situation or fails to do something a reasonably careful person would do in the same situation.

To recover on this claim, the Plaintiff must prove by a preponderance of the evidence that:

1. Defendant acted or failed to act in any one or more of the following ways:

a. Moved at an unreasonable speed;

b. Did not keep a proper lookout;

c. Failed to maintain control of her vehicle; and or

d. Drove while distracted by the use of a cell phone;

2. Defendant's act or failure to act was negligent; and

3. Defendant's act or failure to act was a proximate cause of Plaintiff's claimed injuries; and

4. Plaintiff suffered damages as a result of the injuries.

* * *

Id. at 39.

[11] The jury returned a verdict in favor of Hites. This appeal ensued.

Discussion and Decision

Standard of Review

[12] Yates contends that the trial court erred when it gave the jury a final instruction regarding sudden emergency.

The manner of instructing a jury is left to the sound discretion of the trial court. Callaway v. Callaway , 932 N.E.2d 215, 222 (Ind. Ct. App. 2010). Its ruling will not be reversed unless the instructional error is such that the [instruction] misstates the law or otherwise misleads the jury. Id. Jury instructions must be considered as a whole and in reference to each other. Id. at 222–23. In reviewing a trial court's decision to give or refuse a tendered instruction, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the tendered instruction is covered by the other instructions that are given. Id. at 223. To determine whether sufficient evidence exists to support an instruction, we will only look to that evidence most favorable to the appellee and any

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