*1 $1,521.28 covered Pekin amount of is an ALDANA, Aldana, Leo Janette Wright's estimate of Jen Donald
Insurance. b/n/f Bell, Bell, Jorge $10,108.49 property is not nie Avis stolen Castil b/n/f lo, impact Jr., Jorge Castillo, Daphne the victim state- consistent b/n/f Espinoza, Daphne Zaragoza, ment, there is no additional evidence and b/n/f explaining discrepancy. in the record Crystal Fuentes, Veronica Olv b/n/f Further, appears order the restitution era, Pezel, Kassandra Josefina b/n/f duplicate payments to make require Shane Pezel, Reed, Jeremiah Pauline b/n/f and Pekin Insurance. If Wrights to the Reed, Joseph Silvas, Patricia Sil b/n/f $1,521.28 of the Insurance covered Pekin vas, Pezel, Individually, and Josefina the res- damage Wrights' property, to the Appellants-Plaintiffs, reduce the amount titution order should them in order to reflect pay should
Shane by Wrights. incurred the actual cost SCHOOL CITY OF EAST CHICAGO Person, Appellees- attorney fact that his did not catch and Earl supports argu- Shane's discrepancies these Defendants. attorney that his did not review
ment No. 45A05-0110-CV-440. re- presentence investigation in the figures especially important It is port. of Indiana. Appeals Court be accurate be- report estimates June are the sole basis for the trial cause result, restitution order. As a we court's attorney's to de-
find that Shane's failure accuracy reliability termine investigation presentence estimates prevailing professional fell below report prej- also find that Shane was norms. We 35-50-5-8(a)(1) § Indiana Code udiced. requires that a restitution order based on damages be based on the actual
property Wrights. to the As the actual cost cost accurately from the cannot be determined presentence in the inves- figures contained report, we reverse and remand to tigation purpose trial court for the sole ascertaining amount of the restitution affirmed in all judgment
order. The respects. other part, Affirmed in reversed and remand- part. ined SULLIVAN,J., BAKER,J., concur. *3 Rubino, Sersic, M.
Sterrence Steven J. Smith, Crosmer, Kevin C. Rubino Dyer, & IN, Attorneys for Appellants. Pennycuff, Melanie D. Bruce P. & Clark Associates, Munster, IN, Attorney Ap- pellees.
OPINION
BARNES, Judge. Summary
Case Plaintiffs, who consist of nine schoolchil- adult, dren and one appeal the judgment following jury entered verdict in favor of Defendants, City School Chicago East ("the Person, City") and Earl in personal injury negligence action. We reverse and remand.
Issues
The issues before us are: I. whether the trial court properly re- fused to instruct on the doctrine of res loquitur; and II. whether the trial court erred instructing on the sudden emergency doctrine.
Facts The facts most favorable to the verdict 2, 1998, April this case are that on Person, a City, school bus driver for the agreed transport group grad- of first and chaperones trip. ers on field While traveling County on the Line Lake/Porter trip, Road on the return noticed Person right wheels of the bus had left vehi- control of the the dirt shoul- to lose onto driver gone dent bus pavement those wheels bring he tried to cle. As der. unexpect- pavement,
back onto evidence, Plain- of the the conclusion At oppo- into and fishtailed "jumped" edly to instruct the trial court requested tiffs oncoming causing lane of site ipsa loqui- jury on the doctrine eventually brought stop. Person traffic to negligence, tur, Person's claiming then The bus control. under the bus back supe- respondeat City via hence that store several at a convenience stopped facts of under rior, inferred could be chaper- urging later at minutes give court declined The trial the case. ever the bus denied Person ones. 'It-also instructed instruction. *4 Trooper A State two wheels. up on went doctrine, as on the sudden the road ruts holes and testified that Plaintiffs' over by Defendants proffered of contributing cause have been might a verdict The returned objection. conflicting evi- There was incident. Defendants, trial which the upon favor of of and extent concerning the nature dence now Plaintiffs judgment. court entered - injuries, if psychological and physical appeal. by passengers. the bus suffered any, Analysis Plaintiffs, passengers all of whom were Loquitur I. Res Ipsa Defendants, bus, seeking dam- sued the trial challenge first Plaintiffs medical ex- injuries, physical for ages jury on the instruct the refusal to court's trial, At distress. penses, and emotional We review of res doctrine that the fish- Plaintiffs requested to tender 'a court's refusal trial schoolchildren caused tailing of discretion. an abuse of instruction twice onto from their seats thrown be Simpson, 746 Haute v. City Terre of seats, walls, and other floor into and/or trans. (Ind.Ct.App.2001), N.E.2d Additionally, ceiling of bus. even its discretion A trial court abuses denied. that the bus testified witnesses several if:; (1) refusing a tendered wheels, there was although up on two went (2) law; correctly states the instruction which side of testimony as to conflicting instruction; and supports the Person airborne. When the bus became (3) not charge is of the the substance bus, chil- several regained control Id. Addi by other instructions. covered seats underneath the bus dren were left in requested of a tionally, refusal some of stopped, the bus crying. After if only error is reversible struction there to an emer- transported the children were that substantial probability reasonable of Several for examination. geney room been complaining party have rights of the parents testified the children and their Buchta Truck affected. Elmer adversely following trauma experiencing emotional 939, 944 Stanley, ing, Inc. Trooper who tes- The State this incident. (Ind.2001). may and ruts in the road that holes tified in- Plaintiffs' tendered res also testi- to the incident contributed have stated: struction day was clear weather that that the fied case, you find that: In this defects on knew of no mechanical and he damaged as plaintiffs were road First: that the He also indicated the bus. City of the School proximate result of that he dangerous, and dry was of being out Chicago East school bus were the holes and ruts did not believe pru- control; caused a would have such may Second: The school bus was under the doctrine establish that the incident control of City exclusive the School of probably more the result negli- driver, Chicago East and its Earl Per- genee by relying on common sense and son; and experience.
Third: being The school bus out of con- Deuitch v. Fleming, 746 N.E.2d trol not happen would unless the de- trans. (quoting denied fendant its driver Earl Person and/or K-Mart Corp. v. Gipson, 563 N.E.2d negligent. were denied). 669 (Ind.Ct.App.1990), you may Then infer the defendants were instruction, When Plaintiffs tendered their negligent you may in- consider this argued Defendants and the trial court con ference with all the other evidence in the cluded that Plaintiffs could not submit arriving your case in verdict. their theory loquitur to the Appellant's pp. Br. 5-6. This instruction because part "[the which was is derived Indiana In- from Pattern Civil instrumentality, was not within the control struction 9.13 and Defendants do not sug- City Chicago Hast or its school gest correctly it does not state the bus driver." Tr. p. 367. Although there *5 theory of res pro- We then was some evidence that holes or ruts ceed to the second our part analysis, may road have contributed to the incident namely issue, whether the evidence, evidence this case at we conclude the when supported the giving Plaintiffs, of the instruction. viewed favorably most to re quired the trial court give to the tendered
We have described doctrine of res ipsa loquitur res instruction. ipsa loquitur as: rule of evidence that allows a to Under the doctrine of res an negligence draw inference of under loquitur, it is not necessary plaintiff for a certain factual cireumstances. The doe- to every possibility exclude other than the operates premise trine on the that negli- negligence defendant's as a cause for the condition, genee, any like other fact or plaintiff's injury. Ishak, Gold v. 720 may proved by be circumstantial evi- N.E.2d 1182 (Ind.Ct.App.1999), Although dence. negligence may not be All trams. denied. that is needed is evi inju- inferred from the mere fact that an dence from which persons reasonable occurred, ry may it be inferred from say could that on the whole it is more circumstances surrounding injury. likely negligence that there was associated question
The central involved in the with the cause of an event than that there use of ipsa loquitur the res doctrine is was LaBrec, Inc., Sharp not. probably whether the incident more re- N.E.2d negligence
sulted from the defendant's prove denied. To the "exelusive control" rather than from some other requirement ipsa loquitur, plain cause. may applied doctrine be when the tiff simply required is to show either that a 1) plaintiff injuring specific injury establishes: that the instrument caused the instrumentality was within the exclusive the defendant had control over that management and control of the defen- that any reasonably proba instrument or 2) ...; and, dant the accident is of injury ble causes for the were under the type ordinarily that does not if happen Hugh control of the defendant. Slease v. banks, those who have the management and 499 (Ind.Ct.App. control A proper plaintiff 1997). exercise care. minimum, At a plaintiff is re seeking to invoke ipsa loquitur quired the res to an point instrument the road and back one side of careen from proba- that was defendant
control side, tilting up point at one injury. id. to the other her his or cause of ble oncoming traffic causing two wheels and involved No other vehicle stop. stated: previously This court of control tossed The loss this incident. a res request with When about the and adults many schoolchildren instruction, the trial court's ipsa loquitur bus, that several of them inside of the such plain- whether duty is to determine Per- seats when underneath the bus were which the from evidence produced tiff the bus. Indiana control of regained son conclude the exis- reasonably could Burkhardt, who is a Trooper James State of ex- underlying elements tence of carriers, to common respect with specialist negli- probability control clusive buses, that he testified including school sufficiency question. is a genee. This mechanically wrong with nothing found and reason- only need be There to lose caused Person might have which, therefrom, when able inferences of it. control to the most favorable in the viewed [theory] support would proponent, ipsa logqui- the res importantly for Most If is there in the instruction. contained issue, as follows Burkhardt testified tur evidence, prop- the instruction no such of the road: to the condition respect hand, the other On erly refused. mean, in Does that [Defense Counsell: from which is evidence there investiga- opinion, as a result your the existence of reasonably find could accident, tion, of this your investigation elements, then the conditional in the by holes or ruts that it was caused instruction, merely *6 of the road? surface the they do find jury that tells the Contributing to this? Yes. [Burkhardt]: they then these elements existence of negligence, inference of may the draw skok oe ose given. must be the There were holes on (internal [Burkhardt]: at 642 N.E.2d Sharp, bus strike the Did I see the road. omitted). We further note citations large holes? No. they No. holes? Were necessary for of evidence quantum deliberately set "is giving of an instruction were Okay. So there [Plaintiff Counsell: in to assure low level order relatively at a in the road? some small holes of fact to have the trier right of parties Yes. [Burkhardt]: disputes preserving thus determine factual by jury." to a trial rights the constitutional #oodk ode ok ock Co., 477 N.E.2d v. B.F. Goodrich Shull anything there Was [Plaintiff Counsel]: de 927-28 than holes different these small about nied. every one of us see on the holes that light in Viewing every single day? road propo Plaintiffs as the most favorable to No, sir. [Burkhardt]: res nent of the following description supports goo oe sk ook City's control of the Person lost events: Officer, again, these Counsel]: [Plaintiff day driving on on a clear while school bus are holes the road that throughout holes danger county described as drya road holes every day, were these like we see caused the bus This loss of control ous. careful, prudent, sufficient to cause a with the principle that the defendant's coming attentive bus driver to lose control of his forward with an explana alternate bus? tion injury for an necessarily does not negate a claim
*oke
ck skok
York,
New
Chicago &
R.
St. Louis
Co. v.
Henderson,
456, 466,
237 Ind.
146 N.E.2d
my
In
opinion,
[Burkhardt]:
no.
(1957).
537-38
you
any-
[Plaintiff
Did
see
We therefore conclude
Counsell:
that because
presented
Plaintiffs
thing
roadway
your
on this
that in
opin-
that Defendants had "exclusive control"
ion could
somebody
sup-
cause
who's
key
injuring
posed
instrumentality-ie.,
to be a safe bus
driver to lose
bus-at
the time
alleged
control?
negli-
genee-i.e.,
mishandling
of the bus-
* ok k sok
required
were not
to demonstrate
Defendants' "exclusive control" over all po
In my opinion,
[Burkhardt]:
no.
tential contributing causes of the incident.
Tr. pp. 62-66.
See id. at
had
today,
City make
had sued
Person and the
one
by a tire blowout
was caused
have control
"that
did not
namely,
64-65, 249
Id. at
the tive manufacturer.
the court
Specifically,
at 488-89.
N.E.2d
instrumentality
bumpy road]
[the
over
re-
injury."
that there was
The court
noted
which caused the
defen-
out while
tire had blown
jected
argument:
this
she
speed
at the
driving
dant-driver was
roadbed
not the defective
Whether or
not have
traveling, it should
she was
said
highway
product
in
was
fact the
Id.,
the car.
control of
caused her to lose
construction, as
negligent
department's
case
present
In the
N.E.2d at 489.
[defendants], it was
by the
suggested
instrumentality is the school
the crucial
con-
had exclusive
who
[defendants]
Plaintiffs' al-
bus,
directly caused
instrumentality-i.e.,
trol of the
under the
injuries
which was
leged
as-
injury.
Even
bus-which caused
and thus his
of Person
exelusive control
highway
de-
suming arguendo that
pre-
City. That Defendants
principal, the
in
negligent
partment may have been
or
cause
explanation
possible
an
sented
road-
newly
constructed
maintaining
negli-
from Person's
this incident aside
driver,
...
note that
way, we
condition of the
namely the
genee,
bus, may
exercising his control over
this case
automatically remove
does not
failing
to slow
negligent
have been
partic-
ipsa loquitur,
realm of res
from the
dangerous de-
approached a
down as he
of the evidence
ularly
roadbed
Although the defective
fect.
caused
should not have
alleged cause
the control of
admittedly not under
was
of a school
driver to lose control
prudent
[defendants],
and the man-
the bus
in Merri-
bus,
was evidence
just as there
the defective
negotiated
in which it
ner
not have
tire
should
man that the
blowout
con-
clearly under
roadway
[their]
her
lose control of
caused the driver to
trol.
vehicle.
omitted).1
(internal
This rea
Id.
citation
Supreme Court
observe that the
We also
consistent with Indiana's view
soning is
identical
addressed an almost
of Idaho has
namely that the existence
ipsa loquitur,
case
the one
factual scenario as
for an
causes
possible
of other
contributing
v. Boise School
us.
In Blackburn
before
negli
the defendant's
accident aside from
(1973),
Co.,
Idaho
508 P.2d
Bus
the doc
necessarily
mean
gence does
injured when the rear wheels
a child was
Even if we were
inapplicable.
trine is
a severe
of a school bus encountered
con
negligently
that the road was
assume
two
child and at least
bump, causing the
party
maintained
a third
structed or
ceiling of the
up
thrown
to the
others to be
*8
incident,
the
plaintiff
the
that
it contributed to this
bus. The court concluded
negligence on
could have inferred
jury still
against
the case
the
entitled to submit
he
in the manner
part
Person's
jury under
company to the
driver and bus
325,
Trooper
upon
the road based
negotiated
Id. at
loquitur.
theory
ipsa
the
testimony.
Burkhardt's
in the
P.2d at 556. The defendants
325-26,
proof
burn,
was no
1.
court also noted that there
P.2d at 555-56.
The
95 Idaho at
to be
precisely
the child
as to
what caused
to
Similarly,
most
favorable
consequently
ejected from her bus seat "and
road was not
this case is that the
Plaintiffs in
any certainty that the
it cannot be stated with
caused
a
that it would have
in such
condition
object
by
bus was in fact the
encountered
bus.
prudent
to lose
of the
driver
control
negligence."
product
party
Black-
of third
also
the second
specific
The court
addressed
direct evidence of
negligent acts
ipsa loquitur
of the res
test and re
part
Shull,
on
part.
Person's
477 N.E.2d
jected
argument
the defendants'
that chil
court,
therefore,
933. The trial
abused
or
frequently
dren
bounce
fall from bus
by
its discretion
tendering
Plaintiffs'
knowledge
that common
and ex
seats and
requested
Furthermore,
instruction.
pre
perience
justify
did not
the inference that
cisely because of the lack of direct evi-
the accident would not have occurred in
negligence
case,
denee of
which fact
negligence.
Id. at
absence
508 defense
during
counsel alluded to
closing
P.2d at 556.
It concluded "when it ap
arguments,2 we conclude Plaintiffs sub
injury
that the
was resultant from a
pears
rights
adversely
stantial
were
by
affected
jerk
severe
not incident
to the normal
the failure to instruct
jury
on the
operation
conveyance,
applica
doctrine of res ipsa loquitur.
It
is not
ipsa loquitur
proper."
tion of res
is
Id. possible
positively
conclude that
(quoting Straley v. Idaho Nuclear Corp., verdict in this case would have been no dif
917, 922,
94 Idaho
500 P.2d
223 ferent
jury
had
in
properly
been
(1972)). We likewise
conclude
Therefore,
structed.
we must reverse the
lurching
school bus
from one side of the
judgment
in favor of Defendants and re
again,
road to the other and back
mand this cause for further proceedings3
sufficient force to leave several children
Emergency
II. Sudden
Doctrine
seats,
under the bus
is not an event that
should be considered "incident to the nor
Because the issue may arise
Henee,
operation
conveyance."
mal
trial,
again in a new
we will address
jury
reasonably
could
infer from its com
by
whether the trial court erred
instruct
knowledge
experience
mon
that such ing
jury
the sudden
an event would not have occurred in the
defense.
with a
As
trial court's refusal to
negligence.
absence of
instruction,
give an
a claim of error based
evidence,
We hold that the
when viewed on
giving
of an instruction is reviewed
Plaintiffs,
most favorable to
discretion,.
for an
Kelley
abuse of
v. Wat
supported
giving
ipsa loquitur
of a res
son,
1056 (Ind.Ct.App.
step
analysis
instruction. The next
in our
1997). An
given
jury
is whether the substance of
proffered
law,
must
abe
correct statement of the
be
instruction was covered
other instruc-
trial,
applicable to the evidence adduced at
given.
tions
were
Res
and be relevant to the
issues the
must
very particularized
"a
theory
the law of
in reaching
decide
its verdict.
Id.
negligence" and it is clear that the other
trial court
instructions failed to advise the
that it
instructed the
as
negligence
could infer
in the absence of
follows:
you any-
require
[sic]
"'The Plaintiff
has not showed
and the facts of this case do not
thing
any-
to determine that Earl Person did
finding
negligence. Additionally,
thing wrong.... They
proved
haven't
how it
loquitur only
question
addresses the
of wheth-
happened ....
if there are circumstances that
negligent,
pre-
er Defendants were
or more
control,
were under our
[sic]
Plaintiff
has
cisely
duty
whether
breached
their
proving
the burden of
what
it was and how
Plaintiffs;
reasonable
care to
it does not ad-
424, 426,
something wrong."
we
pp.
did
Tr.
*9
proximately
dress whether this breach
result-
439.
compensable
injuries
ed in
to Plaintiffs.
Henderson,
472-73,
A NE.2d making and his own not of emergency, ). prereq The three factual denied deliberate, trams. is time to without sufficient emer- on sudden to an instruction uisites accuracy of the same held to not to be 1) must not have the actor are: geney time to delib- had as one who
judgment emergency brought about created or not person Accordingly, erate. 2) danger negligence; his own through an such care as if he exercises negligent appear confronting the actor must peril or would exer- person ordinarily prudent for no time imminent as to leave to be so with a similar when confronted cise 3) deliberation; apprehen the actor's and emergency. reasonable. must itself be peril sion that a you If find from Id. the De- confronted emergency sudden Person, fendant, that he re- Earl and that the "sud Defendants assert person ordinarily prudent anas sponded to caused Person emergency" which den or with the same have when faced would measures, which driving take corrective not you may then emergency, similar across the the bus to fishtail turn caused negligent. find the Defendants to pulling of the bus was a sudden to leave the causing right its side right, to this challenge Plaintiffs' 446-47. pp. Tr. incident on The road road. there was sufficient is whether dirt shoulders narrow with occurred was giving it. support to evidence introduced It on either side. open that had ditches evidence only need be Again, there for Person have been reasonable would therefrom, which, inferences reasonable the mov a failure to correct perceive that light in the most favorable when viewed little or no time ing quickly, with a ver- support proponent, would deliberation, the bus to could have caused in the instruc- theory contained dict on ditch, causing ser potentially in a overturn Thus, Shull, at 927-28. tion. 477 N.E.2d The last two passengers. ious harm to his in this case now view the evidence we must in for a sudden prerequisites Defendants, or favorable to most struction, therefore, were satisfied. light than we completely in a different portion previous viewed it is whether in this case The real issue opinion. par- that this evidence there was sufficient not emergency" was ticular "sudden action is enti party Each to an negligence. Person's own brought about upon his have the instructed tled to fol- partially at trial as Person testified Barnard v. theory of the case. particular ‘ lows: Himes, (Ind.Ct.App. you were Q: happened when What 1999), denied. The sudden emer- driving? affirmative defense doctrine is an geney Well, it felt going, as I was Okay. A: duty to instruct and the trial court has going kind of right wheel was like the this defense reason, and right for some over to supports at trial the instruction. that, recog emergency doctrine fraction, Id. The sudden I went to correct just kept like the wheel innocently and seemed person that a reasonable nizes I to correct continued going, his actions of time to consider deprived sudden, all of a it seems But problem. the same accura always exercise does turn- as I went to with a fraction has had the like cy judgment as one who fraction, turn, I not to but as-with Id. at 869 it's for reflection. opportunity *10 the bus back into the clude that going rights to steer Plaintiffs' substantial was if going affected, it was like adversely given because were not the to- pavement, getting caught was on some- tality the wheel of the instructions. jury The was it, So, instructed that Defendants had the burden I to turn the bus thing. as went just jumped. of proving the existence of a sudden emer- geney. -Itwas also instructed: Q: your right wheel off the road- Was way and into the dirt? A sudden not does relieve a emergency Well-well, right A: the wheel was duty motorist of his to maintain a proper dirt, caught like-it was like into the lookout while operating a vehicle as a like it seem-it seems when wheel reasonably prudent person would do in on the up get pavement, carmre-came to the same or similar circumstances. The just the bus took off. duty to keep imposed upon lookout is p. Tr. 262. may motorist so that he become aware dangerous of situations and conditions to in undeniably dispute It is a matter of enable him to take appropriate precau- alleged case whether the initial drift of this tionary injury. measures avoid road, of right the bus off the shoulder the corrective action precipitated which p. Additionally, Tr. 447. jury was bus, tossed the children about instructed, "A highway motorist on the has resulted from Person's own carelessness or duty to maintain his automobile under from a condition of the road that he could p. Jury reasonable control." Tr. in- reasonably anticipated. not have structions must be considered not individu- concerning facts are unclear at best this ally, but as a whole. Kostidis v. General however, highlights, why That issue. Indiana, Corp. Cinema by trial court did not abuse its discretion demied jury instructing the sudden emer- (2002). These three instructions suffi- prov- doctrine. It is the exclusive geney ciently any unduly prejudicial removed im- evidence, jury through ince of the to sift pact emergency that an sudden improper might cases where such evidence had, might in that have permit yet conflicting several reasonable jury clearly was advised Defendants inferences, to decide inference is the advantage could not take of the sudden Here, most reasonable. could emergency prove defense if failed to reasonably par- have inferred that the bus emergency that such an existed or if Per- tially leaving through the road occurred no keep son failed to an lookout for adequate Person's, fault of but because the condi- holes and ruts hazards on such as inequitable tion of the road. It would be already If we had not this case. re- hold, did, previously as we that Plain- case, judgment in versed the this we would in- tiffs were entitled to have the giving not find reversible error negligence structed that could be inferred emergency the sudden instruction because case, preclude this but Defendants from totality of arguing possibility opposite of an infer- given in case. and instructions ence, emergency or the existence of an not resulting negligence. from Person's Conclusion The trial court committed reversible er-
Even we were to assume sup instructing that the evidence insufficient to ror on the port giving theory of an instruction on the because there doctrine, an support sudden we would con- was sufficient evidence to such *11 1212 viewing the evidence when COMMISSIONER, DEPARTMENT OF However, the Plaintiffs. favorably to
most Department and State REVENUE by instructing not err court did trial Revenue, Appellants-Respondents, doctrine, jury on the sudden in a new trial. again arise the issue should v. PARTLOW, Appellee and remanded. Mark J.
Reversed
Petitioner.
-
KIRSCH, J., concurs. No. 49A02-0110-CV-659. Indiana. Appeals Court MATHIAS, J., separate concurs opinion. 19, 2002. June
MATHIAS, Judge, concurring. and result reasoning
I concur with majority, sepa but I write by the reached application rately emphasize in cases in ipsa loquitur doctrine of res from motor vehicle volving injury arising and will continue to be has been accidents cases. In those only in unusual proper in which the doctrine vehicle cases motor raised, has been our it held that does generally courts have Egolf, v. 430 eg. Haidri apply. See (Ind.Ct.App.1982); Dim N.E.2d 706-07, Follis, Ind.App. mick (1953). However, unique single vehi- under the issue, present- cle incident reasonably any ed at trial revealed alleged cause of the proximate probable, control of the bus injuries was under the Therefore, I am constrained driver. trial court abused its discre- agree that the jury on it to instruct the tion when refused the doctrine of res