Calvin B. Yates, Appellant-Plaintiff,
Rebecca Hites, Appellee-Defendant.
from the LaGrange Superior Court Trial Court Cause No.
44D01-1601-CT-1 The Honorable Lisa M. Bowen-Slaven, Judge
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
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.
We reverse and remand for a new trial.
and Procedural History
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.
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. 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.
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.
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.
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.
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.
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.
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:
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
(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 ...