*1 testimony Hen note the of Chief We also testimony is allowable Non-expert
derson. competence and the mental
on the issue of experts pre does
opinion of medical considering from and trier of fact
clude the evidence, reaching a
weighing such the conclusion of the opposite to
conclusion Guardianship Carrico v. expert. In re
Bennett evidence, reason 625. From all (though reason people may conclude able people disagree) that Dowler
able emotionally sufficiently unsta had become policeman as a to be unreliable
ble as
stress situations. reasons, is re- this cause
For the above the trial court is ordered to
versed and review. petition judicial
deny Dowler's
Judgment reversed.
ROBERTSON, P.J., RATLIFF, J.,
concur. PEAVLER,
Richey Wayne Appellant,
BOARD OF COMMISSIONERS OF COUNTY, Appellee.
MONROE
No. 1-185A15. Appeals
Court of
First District.
May 1986.
Rehearing July Denied *2 in the failure to or maintain a curve
warning sign, and/or speed reduced limit or advisory speed limit on portion a a county road. We reverse and remand.
FACTS On July 1982, Richey Wayne Peavier (Peavier) and various friends attended a party at the residence of Brad (Brad) Owen in Bloomington, Indiana. Most people in attendance drank several beers. In the early morning hours of July 1982, some of the revelers traveled to Griffey Reser- voir to swim. Peavier rode in Brent (Brent) Owen's car, intending to return with two other friends, Jeff and Dave. Pe- avier testified he did not feel intoxicated nor did anyone have any apparent trouble driving to the reservoir.
There were other groups of young people swimming at the reservoir that morning. Sometime before their departure, an alter- cation arose between Brent and young a man named Donald LeGroux (LeGrouz). Brent apparently received several blows to the head during the scuffle. However, evi- dence at trial conflicted as to whether Pe- avier was aware fight or the injuries Brent Upon sustained. returning to the parking area, Peavler discovered that Jeff and Dave already departed had and so Pe- avier climbed into the front passenger seat of Brent's car. put Brent his gear car in and backed into LeGroux's vehicle. Brent then quickly headed north on Road, Hinkle with pursuit. LeGroux in Hinkle Road is a Fisher, James R. Clemens, Robert B. Ice, winding, hilly, curving road lacking a clear Miller, Donadio Ryan, & Indianapolis, for zone. Peavler and Brad both asked Brent appellant. to slow down as he drove. Brent testified that he went through a series of curves Cook, Michael C. Dale W. Eikenberry, Wooden, McLaughlin Sterner, & Indianapo- and was aware of sharp a curve still ahead lis, Lantz, Thomas J. Montgomery, Elsner because he had traveled Hinkle Road on six Pardieck, & Seymour, appellee. eight prior occasions over the preceding years. two As the car went into the curve
RATLIFF, Judge.
question,
in
Brent remembered hitting his
brakes and not removing his foot from the
STATEMENT OF THE CASE
pedal.
brake
The car left
the road and
Richey Wayne
appeals
nega-
a
erashed in the surrounding trees and foli-
judgment
tive
entered on jury
verdict in
age. At the time of the accident Brent had
his
against
suit
the Board of Commission- a blood alcohol level of
.186% Peavler's
ers of Monroe County alleging negligence
blood alcohol level was .105%. Peavler suf-
and,
rehearing
result
neck
a broken
fered
note,
accident,
quadriplegic.
denied. We must
is now
an erroneous
suit
Peavier
filed
April
On
influenced the result
presumed to have
Board of
against the
Circuit Court
Monroe
appears that
verdict
trial unless it
(the
of Monroe
Commissioners
proper in
been different
not have
County failed to
alleging that
County)
*3
(1982),
v. Moore
Zimmerman
structions.
signs, re-
warning
curve
or maintain
690,
dif
N.E.2d
693. Stated
Ind.App., 441
advisory
signs and/or
limit
speed
duced
that an instruction
ferently, it is assumed
particular portion
signs on the
limit
speed
has influenced the
that misstates the law
cause was venued
The
Hinkle Road.
of
or record
at
unless the evidence
result
trial
trial, there was con-
County. At
Jackson
verdict,
the
under
demonstrates that
Brent had
testimony
to whether
flicting
as
instruction,
dif
could not
been
proper
have
occasions, a curve
seen,
previous
ever
on
Zimmerman,
at 693. Further
ferent.
question or
curve in
sign near the
warning
cured
more, giving
is not
a bad instruction
Evidence
Hinkle Road.
anywhere else on
The
giving
instruction.
Id.
by
a correct
sign
warning
a curve
was
indicated there
is
giving
an erroneous
of
sign posted on
per hour
thirty
mile
only
jury's
where the
grounds for reversal
Hinkle Road but
side of
the southbound
based
the
could have been
verdict
question.
section
northbound
on the
if
will look to see
and this court
conflicting testimony re-
There was also
Id.
appellant has demonstrated harm.
the
placing
policy in
County's
garding the
jury
mis
determining whether the
was
In
post
common to
it was
signs and whether
the
and record
led we examine
evidence
of a road but
one side
speed
on
limit
the
proper instructions
if under
determine
was also testimo-
There
not the other side.
Spratt
have been different.
verdict could
unreasonably
dan-
ny that
the curve was
1059,
(1984),Ind.App., 468 N.E.2d
Alsup
v.
unmarked, com-
an
it was
gerous because
denied; Zimmerman,
1063,
at 693.
trans.
banking in the
improper
pound curve with
22,
On October
lane of travel.
northbound
state
is well settled that
the
It
the
verdict for
1984,
returned a
jury
general duty to exercise reasonable
has a
Thereafter,
perfected this
County.
construction, mainte
design,
care in the
appeal.
nance,
highways for the
repair of its
Magnuson
v.
safety
public.
State
ISSUE
743, 747,
(1986), Ind.App., 488 N.E.2d
re-
fifteen issues for
presents
Appellant
(1981),
v. Willian
pending;
State
trans.
However,
of one of
our resolution
view.
668, 670;
v.
State
Ind.App., 423 N.E.2d
appeal:
this
dispositive of
these issues
227, 235,
(1979),
Ind.App.
179
Thompson
denied;
198, 205,
Elliott
N.E.2d
trans.
giv-
385
erred in
trial court
Whether
213,
2,
210,
342
(1976),
Ind.App.
mod-
No.
168
County's Instruction
v.
ing the
State
677,
denied;
duty
674,
Board
jury
any
that
ified,
N.E.2d
trans.
which directed
of
County
Briggs
Delaware
Comm'rs of
post
a curve
part
on the
of
130,
96,
N.E.2d
(1975),
Ind.App.
on
337
sign for
traffic
167
warning
northbound
acci-
where the
(1976),
Ind.App.
at the curve
852, 873,
Hinkle Road
167
rehearing
on
discretionary.
96,
373,
Coun
wholly
denied.
was
340 N.E.2d
dent occurred
duty
the same
municipalities have
ties and
AND DECISION
DISCUSSION
control.
their
care over roads within
of
96, 337 N.E.2d
(1975),
Ind.App.
rule,
Briggs
167
instructions
general
As a
county is held to
or
852. The state
Grad v.
as a whole.
construed
must be
614,
would be exercised
611,
of care which
395 standard
(1979),
Ind.App.
182
Cross
under the
ordinary prudent person
873;
an
870,
Comm'rs
Board
747, El
at
(1975),
Magnuson,
167 cireumstances.
Briggs
County v.
Delaware
N.E.2d at
liott,
Ind.App. at
342
852, 866,
168
on
course,
677. Of
before liability can be im County (1981), Ind.App., 416
N.E.
posed, the state must have actual or con
1300; Briggs,
at
warning signs where sioners Appellee, Brief for exist. conditions construction, road re- in the care reasonable 11. its at roads within maintenance pair and in a condi- keep them as to so jurisdiction trial Hence, that find we for use reasonably safe that tion any instructing jury in erred court This -duty-is-not-a-discretion- motorists. place a County to part of duty on the near the area Road sign on Hinkle warning which missioners-is-statutorily-immune-from discretionary. As noted was question of Commissioners Hability. The Board circumstances above, certain of this if the breach may held liable be may minis warning signs be placement Plaintiff's cause of proximate duty is a in trial court's Consequently, terial. jury. injuries." province invaded struction as to whether suggestion no make Record, We at County here was discretion decision modified given as was This for the That is an issue ary ministerial. or might While the court. the trial However, find that we decide. jury to manner, it a better drafted have been based could have been jury's verdict and was of law statement a correct was Moreover, instruction. erroneous tendered, error sufficient, preserve *5 rendered may have instruction correct Therefore, County's assertions appeal. Therefore, Peavlier has verdict. different any error preserve failed that Peavler warrant, necessary harm demonstrated the erroneous regard to with ing reversal. merit. is without by the court given argues that County further The for a remand and reverse We therefore any error with preserve failed Peavler . opinion. with this in accordance new trial issue because instruction at regard the in object to properly did not P.J., ROBERTSON, concurs. instruc proper or tender a at trial struction County correct theAs the matter. tion on opinion. separate NEAL, J., dissents with instructions out, objections ly points dissenting. NEAL, Judge, v. Sumner specific. Dettman must be Indi N.E.2d (1985),Ind.App., City 474 In Tell dissent. respectfully I 51(C). Procedure, Trial Rule (1986), Ind.App., ana Rules 489 Noble City v. Instruc objection to find that Peavler's We from city is immune held that 958 we the error sufficiently preserved tion No. 34-4- IND.CODE tort under Hability for review. for for (7) Act 16.5-3(6) Tort Claims and sign at an intersec- to erect STOP failure par on a an instruction to tender Failure discretionary act is such an tion because object to right to point waives ticular opinion was based legislative. Our and v. Anderson being covered. not point contained statutory scheme Ind.App. (1972), 154 Taylor regulating 9-4, act the uniform court Conversely, a trial IND.CODE 781, 785. act, traffic In that highways. refuses to it error when reversible commits signs of all correct consist that is a devices control give a tendered by au- or erected marking placed devices law, to the applicable statement officials body, or other public thority of a adequately case, and is facts of reg- purpose having jurisdiction, are which other instructions by the covered traffic. guiding ulating, warning & Electric Gas Indiana given. Southern de- control erect traffic authority to 96, Such (1977), 177 v. Steinmetz Co. body public be exercised vices denied. or the only commissioners by ordinance
after traffic surveys and studies are con- cluded. Because grant power to the legislative
local body preceded by the "may",
word the exercise thereof was dis-
eretionary.
The majority attempts to distinguish be-
tween regulatory signs, i.e., stop signs, and
warning signs. power to erect any kind of a traffic control device, including warning signs, upon public highway must
be exercised legislative local body by ordinance, which is a discretionary act.
No such distinction exists.
I would affirm the trial court's judgment. TAYLOR,
Edward Appellant
(Petitioner, Below),
STATE of Appellee
(Respondent Below).
No. 4-1185A323.
Court of Appeals
Fourth District.
May20,1986.
Susan K. Carpenter, Public Defender, Yaser, Vickie Deputy Defender, Public Indianapolis, appellant. Linley E. Pearson, Atty. Gen., Jay
Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
MILLER, Judge. Edward Taylor appeals the denial of his post-conviction relief petition, alleging the