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Summerhill v. Klauer

Court of Appeals of Indiana

December 31, 2015

Carl Summerhill, Appellant-Plaintiff,
Craig Klauer, Appellee-Defendant

Page 176

          Appeal from the Porter Superior Court. The Honorable William E. Alexa, Judge. Trial Court Cause No. 64D02-1209-CT-9714.

         ATTORNEYS FOR APPELLANT: Benjamen W. Murphy, Law Office of Ben Murphy, Griffith, Indiana; David A. Wilson, Steven J. Alvarez, Walter J. Alvarez, Walter J. Alvarez, P.C., Crown Point, Indiana.

         ATTORNEYS FOR APPELLEE: Edward W. Hearn, Susan K. Swing, Johnson & Bell, P.C., Crown Point, Indiana.

         Baker, Judge. Bailey, J., and Mathias, J., concur.


Page 177

          Baker, Judge.

         [¶1] Carl Summerhill sued Craig Klauer for negligence following a collision between Summerhill's moped and Klauer's motorcycle. Following trial, a jury declined to find Klauer liable. Summerhill now appeals that judgment, arguing that the trial court erred in excluding certain evidence and that he was prejudiced as a result. We agree with Summerhill that the trial court erred in excluding the testimony of an accident reconstructionist that Summerhill sought to call on his behalf. Accordingly, we must remand for a new trial. We discuss Summerhill's other arguments to assist the trial court and the parties upon retrial.


         [¶2] On the evening of July 18, 2012, Carl Summerhill was riding his moped to his home in Crown Point after meeting with some friends in Valparaiso. As Summerhill headed south down route 2, it looked as though a heavy rainstorm was about to begin. Summerhill saw a building to his left and decided to turn into the parking lot and take shelter under the building's overhang.

         [¶3] Craig Klauer and two of his friends, Ryan Patrick and Parry Brown, had been following behind Summerhill on their motorcycles. Patrick was traveling faster than Summerhill and passed Summerhill on the left side. Klauer followed behind Patrick and attempted to pass Summerhill in the same manner. While Klauer was passing Summerhill, Summerhill attempted to turn left. The rear left side of Summerhill's moped collided with the front right side of Klauer's motorcycle. The collision sent Summerhill off the road and into the parking lot where he ended up on the ground.

         [¶4] Officer LaMotte arrived at the scene and spoke with Klauer while paramedics attended to Summerhill. Officer LaMotte then filled out a crash report. As to the " Primary Cause" of the accident, Officer LaMotte checked a box labelled " Improper Turning." Defendant's Ex. 1. Summerhill had fractured his hip as a result of the accident and had to be taken to the hospital. Officer LaMotte later went to the hospital to speak with Summerhill. Summerhill had plates and screws placed on his hip as a result of his injuries and needed to use a walker and crutches for several months. He amassed over $80,000 in medical bills.

         [¶5] On September 21, 2012, Summerhill filed a complaint in the trial court alleging, among other things, that Klauer had failed to maintain reasonable care and control in the operation of his motorcycle, had followed too closely, and had driven at an unsafe speed under the conditions. Klauer filed an answer denying the allegations.

         [¶6] Summerhill planned to call upon Timothy Spencer, an experienced police officer and accredited accident reconstructionist, to testify at trial. After visiting the scene of the accident, speaking to Summerhill, and reviewing photographs of the damage to the vehicles involved, Spencer wrote up a report detailing his opinion as to the cause of the accident. In this report, Spencer criticized Officer LaMotte's crash report as follows:

Page 178

Officer Lamotte's crash report indicates that Mr. Summerhill was attempting a left turn at the time of the crash. The statements of both drivers ostensibly corroborate this, as they are written in the crash report. At this point, however, the statements of the two drivers begin to differ. Mr. Summerhill is listed in the crash report as having indicated that he was traveling in the " middle of the lane, signaled to turn left" when he began his turn into the warehouse complex. Mr. Klauer is listed as having made the claim that Mr. Summerhill was " driving on the fog line and made a sudden left turn."
The Indiana Officer's Standard Crash Report lists the primary cause of this crash as " Improper Turning" and attributes this as a Driver Contributing Circumstance to Mr. Summerhill. So, in common terms, the Officer listed Mr. Summerhill as being at fault for " Improper Turning."
In my opinion, listing Mr. Summerhill as being at fault in this crash was done in error.
[T]he implication seems to be that if a left turn was made from the right side of a travel lane, that turn would be " improper." Title 9 does not support this. It would seem more appropriate to list " Improper Passing" and/or " Following Too Closely" as primary cause/causes and attribute these to Mr. Klauer.

Appellant's App. p. 47-49. Spencer had also produced an animation of the crash, which Summerhill planned to present as well.

         [¶7] On April 14, 2014, Klauer filed a motion to exclude Spencer from testifying at trial. Klauer argued that Spencer's testimony was inadmissible under Indiana Evidence Rule 702 because his opinions were not based on scientifically sound analysis. On July 17, 2014, the trial court granted Klauer's motion, reasoning as follows:

[T]he record indicates that Mr. Spencer merely took Plaintiff's testimony, observations from a short amount of time at the approximate location of the accident, and a couple of photographs of one of the vehicles into account when reaching his opinion that, not only is Defendant at fault for the accident, but also what exactly occurred between the two parties leading up to the crash, in order to create his animation. Mr. Spencer has not explained in his expert report how he can be so sure that Defendant was at a certain position in his lane, how fast the parties were going, how closely one party was to the other, etc.--all of these being issues that Mr. Spencer cites as factors leading to the cause of the crash. There is a significant gap between the inputs used by Mr. Spencer and the opinion he reached as evidenced in his expert report and animation video. Therefore, Mr. Spencer has not exhibited the reliability of his expert opinion evidenced in both his Expert Report and animation.

Id. at 66. Accordingly, the trial court determined that Spencer's testimony and animation were inadmissible under Indiana Evidence Rule 702.

         [¶8] A jury trial commenced on March 2, 2015. The testimony of several witnesses to the accident differed significantly. Summerhill testified that he was in the center of the lane and had his left turn signal on before he attempted his turn. Another witness, Lindsay Sopcich, who claimed to have been following behind Summerhill in her car when she witnessed the accident, largely corroborated Summerhill's version of events. On the other hand, Klauer testified that Summerhill was on the right side of the lane and had his

Page 179

right turn signal on before he attempted to turn left. Klauer also called Sopcich's testimony into question, claiming that there was no car between him and Summerhill when he attempted his pass. Patrick and Brown both testified, largely corroborating Klauer's version of events.

         [¶9] During trial, Officer LaMotte's crash report was entered into evidence without objection. Tr. p. 362. Klauer also presented the testimony of Steven Neese, an accident reconstructionist. Neese used the testimony of different witnesses, as well as pictures of damage to the vehicles, to produce diagrams and animations showing how the accident could have happened. The diagrams and animations differed according to whose testimony Neese had used to produce them. All animations showed Klauer attempting to pass Summerhill, Summerhill turning left, and Klauer hitting the rear left side of Summerhill's moped. They differed only as to Klauer and Summerhill's initial positioning within the lane. Summerhill did not object to the introduction of Neese's testimony. Id. at 394.

         [¶10] Klauer also called upon Officer LaMotte to testify at trial. During his testimony, the parties held a sidebar with the trial court regarding whether Officer LaMotte should be allowed to testify as to his opinion regarding the cause of the accident. Id. at 369-79. Summerhill objected, arguing that Officer LaMotte was not an accident reconstructionist and any opinion he gave would not be based upon scientifically sound principles. The trial court sustained Summerhill's objection and Officer LaMotte was not allowed to testify as to what he believed the cause of the accident to be. Id. at 379.

         [¶11] The trial court made three more evidentiary rulings that were adverse to Summerhill. First, in an attempt to impeach Klauer's credibility, Summerhill sought to introduce evidence that Klauer had been convicted of check deception in 1993. The trial court ruled that this evidence was inadmissible under Indiana Evidence Rule 609, as Klauer's conviction was well over ten years old. Summerhill also sought to introduce the testimony of Dr. Erika Mitchell that, because Summerhill had fractured his hip, " [h]e is more likely to have post traumatic arthritis of that hip than someone who has never had a fracture of the hip socket." Appellant's Br. p. 20. The trial court determined that this evidence was speculative and, therefore, inadmissible.

         [¶12] Finally, Summerhill sought to introduce evidence that Sopcich called the police to report the accident the following morning. Summerhill believed evidence was necessary to rebut Klauer's implicit assertion that Sopcich had not witnessed the accident. The trial court ruled that such ...

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