Preview:

ATTORNEYS FOR APPELLANTS Robert E. Lehman Indianapolis, Indiana Jeffrey A. Cooke Lafayette, Indiana

ATTORNEY FOR APPELLEE Thomas D. Collignon Indianapolis, Indiana

_____________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S02-0512-CV-692 ANN WILLIS AND JEFF WILLIS, Appellants (Plaintiffs below), v. CHRISTOPHER WESTERFIELD, Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49D03-9901-CT-000013 The Honorable Patrick L. McCarty, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0211-CV-930 _________________________________ January 5, 2006 Boehm, Justice. We hold that the common law sudden emergency doctrine is not an affirmative defense within the meaning of Indiana Trial Rule 8(C) that requires affirmative defenses to be pleaded in a defendant's answer. We also hold that in cases where the defendant seeks a failure to mitigate damages instruction based on a plaintiff's failure to follow a treating doctor's recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis.

Factual and Procedural Background On May 8, 1996, Christopher Westerfield rear-ended Ann Willis' van as it was stopped at a red light. Westerfield told the officer taking the accident report that he was unable to stop in time to avoid striking Willis' vehicle. Two and one-half years after the collision, Westerfield testified in a deposition that Ann Willis suddenly and without warning changed lanes and applied her brakes at the intersection and that he was unable to stop his vehicle before it struck Willis' vehicle because of wet pavement and Willis' quick lane change. In December 1997, Ann and Jeff Willis filed their complaint for damages against Westerfield. Westerfield initially filed an answer in which he pleaded contributory negligence as an affirmative defense. He later amended his answer to replace his contributory negligence defense with a request for allocation of fault pursuant to Indiana's Comparative Fault Act. Neither the answer nor the amended answer mentioned the sudden emergency doctrine. At trial, the court admitted the entire video-taped deposition of Ann Willis's treating physician, Dr. Robert K. Silbert, after denying Willis' motion to strike the portions of Westerfield's cross-examination of Dr. Silbert that referred to Ann's pre-existing conditions, subsequent conditions, or conditions unrelated to her collision injuries. On direct-examination, Dr. Silbert's deposition included his opinion that Ann did nothing after the collision to aggravate or worsen her injuries. On cross-examination, Dr. Silbert testified that Ann had failed to pursue recommended physical therapy and "in that particular condition she didn't help herself." Westerfield relied on his cross-examination of Dr. Silbert and did not call his own medical expert. At the close of evidence, Westerfield tendered jury instructions on the sudden emergency doctrine, the affirmative defense of failure to mitigate damages, and allocation of fault under Indiana's Comparative Fault Act. The Willises objected to the sudden emergency instruction on the ground that Westerfield had waived that defense by failing to raise it in his responsive pleadings. The trial court overruled the objection and gave all three instructions. Following a three day trial, the jury returned a verdict in favor of the Willises, awarding them $5,000 in compensatory damages without regard to fault. Based on a finding that Ann was

2

fifty percent at fault, the $5,000 verdict was reduced to $2,500 in accordance with Indiana's Comparative Fault Act. The Willises appealed seeking a new trial as to damages only. They raised four grounds. First, they asserted the trial court erred in instructing the jury on the sudden emergency doctrine because Westerfield failed to raise the doctrine in his pleadings. Second, they asserted the trial court erred in instructing the jury on failure to mitigate damages because Westerfield failed to present medical expert testimony supporting that defense. Third, they asserted the trial court erred in denying their motion to strike portions of Westerfield's cross-examination of Dr. Silbert. Fourth, they alleged the trial court erred in giving an instruction on allocation of fault under Indiana's Comparative Fault Act. They contended that Westerfield's amended answer removing contributory negligence as a defense withdrew contributory negligence as an issue in the case and thereby eliminated any issue of fault by Willis. The Court of Appeals initially affirmed the trial court. Willis v. Westerfield, 803 N.E.2d 1147, 1149 (Ind. Ct. App. 2004). It held that the trial court had erred in instructing on the sudden emergency doctrine because sudden emergency is an affirmative defense that Westerfield had waived by failing to include it in his pleadings. Id. at 1153. However, the Court of Appeals found that the instruction had no effect on the verdict and therefore the error was harmless. 1 Additionally, the Court of Appeals found that expert testimony was not required to establish failure to mitigate damages and therefore the trial court did not err by instructing the jury on that defense even though Westerfield had presented no expert testimony supporting it. Id. at 1155. The Court of Appeals further held that the Willises had waived any claim based on failure to redact portions of Dr. Silbert's deposition by failing to include the deposition in the record. Id. Finally, the Court of Appeals found no error in giving an instruction on allocation of fault because Westerfield had not conceded complete responsibility for the collision by withdrawing contributory negligence. Id. at 1151.

The trial court's sudden emergency instruction directed the jury that it "may not find the Defendant negligent" if it found Westerfield was confronted with a sudden emergency and responded as an ordinarily prudent person. Because the jury found Westerfield negligent, the Court of Appeals concluded "that the jury did not predicate its verdict on the erroneous instruction." Willis, 803 N.E.2d at 1154.

1

3

On rehearing, the Court of Appeals reconsidered its view of the need for expert medical opinion testimony on the defense of failure to mitigate damages and held that an instruction on that issue was error. Willis v. Westerfield, 817 N.E.2d 672, 673 (Ind. Ct. App. 2004). The Court of Appeals vacated the trial court's damages award and remanded for a new trial on the issue of damages only. Id. The Court of Appeals affirmed its initial decision in all other respects, and also provided additional guidance on the scope of cross-examination of the Willises' expert. Id. at 673-75. I. Sudden Emergency Doctrine In a negligence cause of action, the sudden emergency doctrine is an application of the general requirement that one's conduct conform to the standard of a reasonable person. The emergency is simply one of the circumstances to be considered in forming a judgment about an actor's fault. 2 The doctrine was developed by the courts to recognize that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal circumstances. See W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts

Download Ann Willis and Jeff Willis v. Christopher Westerfield.pdf

Indiana Law