Glynell BAKER, Appellant-Plaintiff, v. OSCO DRUG, INC. and Martin‘s Realty Company, Inc., Appellees-Defendants.
No. 71A04-9308-CV-290
Court of Appeals of Indiana, Fourth District
April 19, 1994
Transfer Denied July 29, 1994
The improper admission of polygraph evidence does not always require a mistrial. However, given the facts in this case, no remedy short of a mistrial could cure the damage. Upon hearing Toney testify he offered Houchen a polygraph, the jury had to assume one of two things: either Houchen took the test and failed it or he refused to take the test because he was being untruthful. Id. Either way, his credibility, which was crucial to his defense, was severely damaged. Houchen could not have been convicted without Toney‘s testimony, and by introducing the polygraph issue, Toney indelibly etched in the minds of the jurors that if Houchen were telling the truth, he would have taken and passed the polygraph examination.
Toney was not a naive witness who was unaware of the prohibition against polygraph evidence and inadvertently introduced the subject. To the contrary, he was an experienced police officer more than aware of the prohibition. Nor was the evidence against Houchen so оverwhelming that the improper reference could not have affected the verdict. Rather, the entire case hinged on the credibility of Houchen and Toney. Houchen was the only witness who testified on his behalf.
This court will simply not tolerate such a blatant and deliberate attempt to improperly influence the jury. Because one police officer took it upon himself to guarantee a conviction by tossing out an evidentiary harpoon that the jury could not ignore, the time and expense of this jury trial was for naught. The conviction must be reversed.
We must also address Houchen‘s challenge to the sufficiency of the evidence because if the evidenсe presented was insufficient to support his conviction, he may not be tried again for this offense. Houchen contends that the evidence failed to establish that he touched A.M. in the genital area and that therefore no molesting occurred. Our test for sufficiency of the evidence requires that we neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Chandler v. State (1991), Ind., 581 N.E.2d 1233, 1237. The record reflects that, when asked where Houchen touched her, A.M. pointed to her genitals. Houchen did not object to the prosecutor‘s characterization of A.M.‘s act, and thus we must presume she indeed pointed to her genitals. Further, Toney testified Houchen confessed to touching A.M.‘s vagina. This evidence establishes an act from which the intent to molest may be inferred and is sufficient to withstand a sufficiency challenge on appeal.
REVERSED.
NAJAM and RUCKER, JJ., concur.
Joseph Stalmack, Galvin, Stalmack & Associates, Hammond, Robert M. Edwards, Jr., Patrick D. Murрhy, Jones, Obenchain, Ford, Pankow & Lewis, South Bend, for appellees.
STATEMENT OF THE CASE
This is an appeal from an order of the St. Joseph Superior Court granting summary judgment in favor of the Defendants-Appellees and against the Plaintiff-Appellant. We reverse and remand.
ISSUE
The issue for our consideration is whether the trial court erred when it granted summary judgment for the Defendants-Appellees beсause the Plaintiff-Appellant knowingly incurred the risk of her injuries as a matter of law.
FACTS AND PROCEDURAL HISTORY
Glynell Baker (“Baker“) is appealing from an adverse judgment rendered in favor of Osco Drug, Inc. (“Osco“) and Martin‘s Realty Company, Inc. (“Martin‘s“) (hereinafter collectively referred to as “appellees“). This suit arose from a slip and fall incident that occurred on an icy sidewalk just outside the Osco Drug Store in South Bend, Indiana. The property on which Osco is located is owned by Martin‘s.
Baker lived in South Bend, Indiana about fifteen (15) blocks from an Osco Drug Store where she frequently did her shopping. On February 24, 1990, Baker accompanied her neighbor, Pauline Morton, to Osco. Baker did not have an urgent need to gо to the drug store, but simply went to ride along with her neighbor and friend. Baker‘s deposition indicates that she knew that it had been snowing intermittently on the day of the injury and in fact there was approximately two and a half to three inches of accumulation of snow on the Osco parking lot and a considerable accumulation of snow on the sidewalk near the entrance/exit. While attempting to exit the store, Baker slipped and fell on the ice sustaining injury.1
Baker filed suit against appellees. Appellees thereafter filed motions for summary judgment. Appellees contended therein that there was no genuine issue of material fact and that Baker had incurred the risk of her injury.2 The trial court entered its order on April 29, 1993, granting summary judgment in favor of appellees. Specifically, the trial court found, as a matter of law, that Baker knowingly incurred the risk of her injury.
STANDARD OF REVIEW
The issue before the trial court was whether the facts presented when viewed in the light most favorable to Baker, the non-moving party, presented any genuine issue of material fact. Summary judgment is an appropriate disposition if the designated
... pleadings, depositions, answers to interrogatories, and admissions on file, together with the [designated] affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552, 553;
DISCUSSION AND DECISION
We find it significant that the definition of “fault” as used in the Indiana Comparative Fault Act (hereinafter “the Act“) specifically includes “incurred risk“.
includ[ing] any act or omission that is negligent, willful, wanton, or reckless toward the person or property of the actor or others, but does not include an intentional act. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.
Id. (emphasis added). The Act has, in effect, defined fault to inсlude incurred risk, but has not expressly abolished or retained the defense. The adoption and implementation of the Act in 1985 was intended to ameliorate the harshness of the then prevailing doctrine of contributory negligence. Under the common law rule, a slightly negligent plaintiff was precluded from recovery of any damages, even against a highly culpable tortfeasor. Kroger Co. v. Haun (1978), 177 Ind. App. 403, 379 N.E.2d 1004.
We follow the lead of our supreme court in State Through Highway Dept. v. Snyder (1992), Ind., 594 N.E.2d 783, 786, wherein the court stated that under the Act
[a] plaintiff‘s incurred risk is considered as ‘fault’ and is to be compared to other fault contributing to the accident. Thus, although at common law a plaintiff would have incurred the risk of the entire accident, under the Comparative Fault Act, the plaintiff has no longer incurred the entire risk but, theoretically, only a portion of it. Accordingly, comparing incurred risk under the Act with incurred risk at common law is a comparison of two distinct legal theories.
We are guided in part today by policy considerations in that we suggest that the legislature‘s inclusion of incurred risk in the definition of fault is indicative of their presumed intent that the defense no longer opеrate as a complete bar to recovery. Indeed, as we have alluded to previously, the adoption of the Act was intended to no longer subject the plaintiff who is partially at fault to the complete defense of contributory negligence. Under the Act, if a plaintiff‘s conduct satisfies the statutory definition of fault, he will be permitted to recover damages, but they will be reduced by his proportion of fault. Of course, recovery may still be completely barred if plaintiff‘s fault is assessed at greater than 50%. Further, the Act provides a mechanism by which the fact-finder is required to specifically determine the relative degree of the plaintiff‘s fault with respect to others. This inclusion of “incurred risk” in the definition of fault abolishes incurred risk as a complete bar to recovery and establishes that the fault of each party should be apportioned.
We decline to interpret the Act as abolishing incurred risk completely.3 We leave open the question of whether incurred risk will continue to be a viable defense in Indiana after the passage of the Act. Today we say only that, on the specific facts of this case, an incurred risk defense will trigger the apportionment principles of comparative fault. On the designated matters before us, we cannot conclude as a matter of law that incurred risk should operate as a complete bar to Baker‘s recovery.4
We conclude that the trial court erred when it granted summary judgment in favor of the appellees finding that Baker incurred the risk of her injury as a matter of law.
We reverse and remand to the trial court for further proceedings not inconsistent with this opinion.
CHEZEM, J., concurs.
FRIEDLANDER, J., concurs with separate opinion.
FRIEDLANDER, Judge, concurring.
I agree with the majority that summary judgment was erroneously granted in this case. I believe that the time has come to recognize that the defense of incurred risk was greatly diminished, if not extinguished, by the adoption of
Prior to the adoption of the Act, an Indiana tort law action was governed by the principle of contributory negligence. Contributory negligence was defined as “the failure of a person to exercise for his own safety that degree of care and caution which an ordinarily reasonable and prudent person in a similar situation would exercise.” Pugh‘s IGA v. Super Food Services, Inc. (1988), Ind.App., 531 N.E.2d 1194, 1199, trans. denied (quoting Kroger Co. v. Haun (1978), 177 Ind.App. 403, 379 N.E.2d 1004, 1007). A finding of any amount or degreе of contributory negligence on a party‘s part operated as an absolute bar to a recovery in a negligence claim. Id. Pursuant to the principle of contributory negligence, the doctrine of incurred risk was an affirmative defense which the party raising such defense had the burden to prove that the other party had аctual knowledge of the specific, injury-producing risk and understood and appreciated the risk. Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934, trans. denied.
With the advent of comparative fault, the fact finder is assigned the task of considering the alleged injury-producing episode and assigning percentages of fault for the occurrence among the claimant, the defendant, and any non-parties, as that term is defined in the Act.
There is a sрlit of authority on this question among the jurisdictions which have adopted comparative fault. See Annotation, Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700 (1982 & Supp.1993). The arguments proffered on both sides of the question have been thoroughly explored (see id. and cases cited therein) and will not be reviewed here. I believe the better line of reasoning is exemplified by the Arkansas Supreme Court‘s statement in Simmons v. Frazier (1982), 277 Ark. 452, 642 S.W.2d 314, 316:
“Because Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault.”
I acknowledge that in states which have determined that the cоmparative fault scheme in some degree diminishes the defense of assumption of the risk, there is a divergence of opinion upon the questions of how much, and in what way, the defense is eroded. Some states recognize a distinction between “primary” and “secondary” assumption of the risk and have held that the former retains vitality under comparative fault, while the latter does not.1 See, e.g., Swagger v. City of Crystal (1985), Minn.App., 379 N.W.2d 183, rev. denied. Of those, some courts have held that primary assumption of the risk is applicable only when the necessary consent on the plaintiff‘s part was express, as opposed to implied. See e.g., Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 518 N.E.2d 1226. Others have held that primary assumption of the risk survives under comparative fault in toto, without regard to whether the plaintiff‘s consent was express or implied. See King v. Magnolia Homeowners Ass‘n (1988), 205 Cal.App.3d 1312, 253 Cal.Rptr. 140. Still others have held that the defense is completely obviated under comparative fault, and that arguments that would have supported the now obsolete incurred risk defense instead become relevant in allocating fault under a comparative fault system. See, e.g., Brown v. Kreuser (1977), 38 Colo.App. 554, 560 P.2d 105. The latter position has much to recommend it.
In any event, this is not the appropriate case in which to explore in detail the relative merits of each view. It is sufficient for now to register my belief that the defense of incurred risk (or assumption of the risk) has been greatly diminished, if not entirely abolished, by the fault-allocation scheme of our comparative fault system. Cf. Bob Schwartz Ford, Inc. v. Dunham (1994), Ind.App., 631 N.E.2d 953. This is especially true when, as noted by the majority, Indiana‘s Comparative Fault Act includes “incurred risk” in the definition of “fault“.
Subject to the foregoing comments, I concur in the result reached by the majority.
Jesse Claude NEWMAN and Jane Newman, Appellants-Plaintiffs, v. David Harreld HUFF, Thelma June Palmer, Cleis Perry, Laura Roberts, The Estate of Alta M. Henderson, Deceased, and Donald Alfred Jefferson as Executor of The Estate of Alta Marie Henderson, Deceased, Appellees-Defendants.
No. 12A02-9210-CV-464.
Court of Appeals of Indiana, Second District.
April 19, 1994.
Rehearing Denied May 27, 1994.
Notes
Secondary assumption of the risk is applicable when a plaintiff has encountered an appreciated risk created by the defendant without manifesting consent to relieve the defendant of his duty. Some courts have held that secondary assumption of the risk is extinguished under comparative fault, and becomes merely “a question of comparative negligence.” Swagger, supra, 379 N.W.2d at 185 (quoting Armstrong v. Mailand (1979), Minn., 284 N.W.2d 343, 348).“Primary assumption of the risk, express or implied, relates to the initial issue of whether a defendant had any duty to protect the plaintiff from a risk of harm.” Swagger, supra, 379 N.W.2d at 185 (quoting Springrose v. Willmore (1971), 292 Minn. 23, 192 N.W.2d 826, 827).