Witte v. Mundy Ex Rel. Mundy

Attorneys for Appellants Attorneys for Appellees

Michael H. Michmerhuizen Konrad M. L. Urberg

Patrick G. Murphy Joseph Christoff

Fort Wayne, Indiana Fort Wayne, Indiana

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__

In the

Indiana Supreme Court

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No. 17S05-0406-CV-248

Monica, James, and Diane Witte,

Appellants (Defendants below),

v.

Mikayla Mundy, a minor, by her next

friend, parent and guardian, Kristin

Mundy,

Appellees (Plaintiffs below).

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Appeal from the DeKalb Superior Court, No. 17D01-0012-CT-15

The Honorable Kevin Wallace, Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 17A05-0303-

CV-147.

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January 6, 2005

Boehm, Justice.

A child and her mother sued when the child was struck by the

defendants’ car. On the eve of trial the mother moved to dismiss her

claim. The trial court granted the motion to dismiss but denied the

defendants’ motion to add the mother as a nonparty for purposes of

comparative fault. The jury then returned a verdict for the defense. We

hold that it was error to refuse to add the mother as a nonparty, but

because the plaintiffs invited the error, neither plaintiff can obtain a

new trial on that basis.

Factual and Procedural Background

Five-year-old Mikayla Mundy was riding her bicycle when she ran a

stop sign and was struck by a car driven by Monica Witte, also a minor.

Mikayla’s mother, Kristin, sued as Mikayla’s next friend and also in her

own capacity, naming Witte and her parents as defendants. The defendants

responded by asserting that Witte was not negligent and also that the

accident was due to negligence on the part of both Mikayla and Kristin.

Shortly before trial, Kristin moved to dismiss her individual claim

without prejudice. At the same time, Mikayla moved for an order precluding

the defendants from offering evidence or arguing to the jury that Kristin

contributed to the injury through negligent supervision of Mikayla. The

defendants objected to the dismissal of Kristin as a plaintiff. In the

alternative, if Kristin was to be dismissed, the defendants requested leave

to amend their answer to include Kristin as a nonparty defendant under the

comparative fault statute. The trial court granted the motion to dismiss

Kristin but denied the defendants’ motion to add Kristin as a nonparty

defendant. The trial court also granted Mikayla’s motion in limine to

preclude the defense from introducing evidence of Kristin’s negligence. At

trial, however, over Mikayla’s objection, the defense was permitted to

question Mikayla about whether her mother had taught her bicycle safety and

to examine Kristin regarding her supervision of Mikayla. In closing

argument, the defense argued that Kristin’s failure to train and supervise

Mikayla was the proximate cause of Mikayla’s injuries.

The jury returned a verdict in favor of the defendants and judgment

was entered accordingly. Mikayla then filed a motion to correct error,

alleging that the defendants’ contentions that Kristin’s failure to

supervise Mikayla was the proximate cause of Mikayla’s injuries violated

the court’s earlier rulings and was improper. The defendants responded

that the trial court erred in denying their request to add Kristin as a

nonparty and that the testimony allowed at trial merely corrected that

error. The trial court granted Mikayla’s motion and set aside the jury

verdict. The defendants appealed and the Court of Appeals affirmed the

grant of a new trial based on its conclusion that the trial court erred in

denying the defendants’ request to name Kristin as a nonparty. Witte v.

Mundy, 800 N.E.2d 185, 191 (Ind. Ct. App. 2003). This Court granted

transfer. Witte v. Mundy, 812 N.E.2d 806 (Ind. 2004).

I. Failure to Permit Adding a Nonparty

The trial court’s denial of the defendants’ motion to add Kristin as

a nonparty raises two distinct issues: 1) whether Kristin, Mikayla’s

parent, was a proper nonparty defendant in an action by her child; and 2)

if so, whether it was an abuse of discretion to deny the motion to add her

as a nonparty on the eve of trial.

A. The Parent as a Nonparty in a Suit by the Child

If Kristin would not have been a proper nonparty defendant in a suit

brought by Mikayla alone, it was proper to deny the defendants’ motion,

whether or not occasioned by late breaking news from the plaintiffs. The

Court of Appeals reasoned that the trial court’s error required a retrial

and affirmed the trial court’s grant of Mikayla’s motion to correct error.

The court explained that in a comparative fault case, fault may be

allocated only to a plaintiff, a defendant, or a named nonparty. Witte,

800 N.E.2d at 191. The court pointed out that the jury was given only

general verdict forms that did not allow for the allocation of fault to

Kristin. Id. The Court of Appeals reasoned, “it is clear, from the

verdict for the Wittes and from the fact that fault could not be assigned

to Mikayla by virtue of her age, that the jury allocated fault to Kristin.

However, because Kristin was not named as a nonparty, it should not have

done so.” Id. at 191.

We do not agree that the jury necessarily allocated fault to Kristin.

That explanation excludes the very real possibility that the jury found

Witte not negligent. In that case, there would be no need to allocate

fault to Kristin. In addition, under the proximate cause instructions the

jury could have found Kristin’s actions broke the causal connection between

the injury and whatever negligence was attributable to Witte irrespective

of whether Kristin’s “intervening cause” was the result of negligence.[1]

If so, Kristin’s role in the accident would preclude liability if her

actions were not reasonably foreseeable by Witte. See Control Techniques,

Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind. 2002).

The issue remains, then, whether Kristin was a proper nonparty

defendant. The Court of Appeals held that she was, and we agree. The

courts of this state have reasoned that a child cannot be capable of

negligence when the child is “of such tender years that it is, by legal

presumption, incapable of judgment or discretion.” Terre Haute,

Indianapolis & Eastern Traction Co. v. McDermott, 82 Ind. App. 134, 140,

144 N.E. 620, 622 (1924) (quoting Elwood St. R. Co. v. Ross, 26 Ind. App.

258, 58 N.E. 535 (1900)), trans. denied. A judicially developed rule

evolved that children under the age of seven are not capable of negligence.

Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind. 2000) (quoting Bailey v. Martz,

488 N.E.2d 716, 721 (Ind. Ct. App. 1986)). Here, the trial court

instructed that: “Children . . . less than the age of seven may not be

assessed any fault for their action[s], even if those actions proximately

caused their injury or damages. Should you find that Kristin Mundy was

negligent, you cannot hold Mikayla Mundy responsible for the negligence of

her mother.” Given this instruction, it seems likely that the trial

court’s denial of the motion to add Kristin as a nonparty was based on the

view that she could not legally be a nonparty and not on an exercise of

discretion based on the timing of the motion. We think that Kristin was a

proper nonparty. It is one thing to say a child under age seven is

“incapable of judgment or discretion” and therefore, as a matter of law,

cannot be negligent. It is another thing to conclude that an adult’s

negligent supervision cannot be a contributing cause to the child’s injury

relieving a third party of some or all liability.

In a comparative fault cause, “the jury shall determine the percentage

of fault of the claimant, of the defendant, and of any person who is a

nonparty. The jury may not be informed of any immunity defense that is

available to a nonparty.” Ind. Code § 34-51-2-7 (2004). As the Court of

Appeals pointed out, until 1995, a “nonparty” was defined as “a person who

is, or may be liable to the claimant in part or in whole for the damages

claimed but who has not been joined in the action as a defendant by the

claimant.” I.C. § 34-4-33-2(a) (1995). Under that definition, it would

not have been proper to add Kristin as a nonparty because, as Mikayla’s

mother, she would not be liable to her for her injuries. See Doe v. Shults-

Lewis Child and Family Servs., Inc., 718 N.E.2d 738, 746 (Ind. 1999)

(citing Barnes v. Barnes, 603 N.E.2d 1337, 1339 (Ind. 1992)). However, the

definition of nonparty was amended in 1995 to define a “nonparty” as “a

person who caused or contributed to cause the alleged injury, death, or

damage to property but who has not been joined in the action as a

defendant.” I.C. § 34-6-2-88 (2004). This provision was presumably

chiefly designed to permit employers of injured workers to be named as

nonparties even though under workers’ compensation law they have no tort

liability to a worker injured by accident on the job. See James L.

Petersen, Tort Reform, Act No. 1741 Res Gestae Sept. 1995, at 24, 28. As

the Court of Appeals has held, the comparative fault statute “no longer

requires that the nonparty be liable to the plaintiff, but only that he or

she have caused or contributed to the cause of the plaintiff’s injury.”

Bulldog Battery Corp. v. Pica Invs., 736 N.E.2d 333, 338 (Ind. Ct. App.

2000). This reasoning applies to parent-child immunity just as it does to

workers’ compensation. The basic point of the statute is that a defendant

should be required to compensate an injured party only in proportion to the

defendant’s fault. See Estate of Hunter v. General Motors Corp., 729 So.

2d 1264, 1274 (Miss. 1999); Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn.

2000); Kirby Bldg. Sys. v. Mineral Explorations Co., 704 P.2d 1266, 1272

(Wyo. 1985). Despite her immunity from suit by her child, the defense

should have been permitted to name Kristin as a nonparty to permit the jury

to determine whether her negligence contributed to the accident. This case

was tried with no nonparty defendant. The trial court’s instruction that

the parent’s negligence is not attributable to the child would have been

proper in that procedural posture. City of Evansville v. Senhenn, 151 Ind.

42, 48, 47 N.E. 634, 635 (1897). For the reasons given, however, it was

error to deny the defendants’ motion to add Kristin as a nonparty

defendant.

The trial court’s refusal to add Kristin as a nonparty and instruct

the jury on comparative fault is nevertheless no ground for a new trial

because Mikayla invited the error. The doctrine of invited error is

grounded in estoppel. Covert v. Boicourt, 93 Ind. App. 355, 361, 168 N.E.

198, 200 (1929). Under this doctrine, “a party may not take advantage of

an error that she commits, invites, or which is the natural consequence of

her own neglect or misconduct.” Evans v. Evans, 766 N.E.2d 1240, 1245

(Ind. Ct. App. 2002) (citing Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind.

Ct. App. 1994)); Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App.

2002). For example, in Rollins Protective Services Co. v. Wright, 493

N.E.2d 811 (Ind. Ct. App. 1986), the Wrights filed a small claims action

against Rollins Protective Services. Id. at 811. At trial, Rollins was

represented by one of the company’s branch managers, and not by legal

counsel. Id. Rollins lost the case and argued on appeal that the trial

court exceeded its jurisdiction in proceeding with a trial when Rollins, a

corporation, was not represented by an attorney licensed to practice law in

Indiana, as required by the Indiana Rules for Small Claims. Id. at 812.

The Court of Appeals affirmed the trial court, reasoning that Rollins

cannot take advantage of an error it invited the court to commit. Id.

In this case, at trial and on appeal, Mikayla opposed the defendants’

effort to name Kristin a nonparty. Mikayla thus induced the trial court to

err as it did when it failed to treat Kristin as a nonparty defendant.

This in turn made it impossible to allocate fault between Witte and

Kristin. The defendants’ only alternative was to present evidence that, by

reason of Kristin’s actions, Witte’s acts were not the proximate cause of

the injury. Because Mikayla created this situation by inviting the initial

error, she cannot take advantage of that error. Stolberg v. Stolberg, 538

N.E.2d 1, 5 (Ind. Ct. App. 1989). See also State v. Payne, 185 S.E.2d 101,

102 (N.C. 1971) (“Ordinarily one who causes (or we think joins in causing)

the court to commit error is not in a position to repudiate his action and

assign it as ground for a new trial.”); State v. Campbell, 738 N.E.2d 1178,

1188 (Ohio 2000).

B. Discretion to Deny Adding a Nonparty

A grant of a new trial will be reversed only for an abuse of discretion.

Centennial Mortgage, Inc. v. Blumenfeld, 745 N.E.2d 268, 273 (Ind. Ct. App.

2001). The Court of Appeals held that the trial court abused its

discretion in denying the defendants’ request to add Kristin as a nonparty.

Witte, 800 N.E.2d at 191. Because an error of law is an “abuse of

discretion” for this purpose, even on a point of law with no clear

precedent, we agree. For the reasons explained above, Kristin would have

been properly named as a nonparty defendant if the suit had been brought by

Mikayla alone. Because Kristin was initially a plaintiff, the defendants

had pleaded Kristin’s negligence as an affirmative defense in their answer

to the initial complaint. Two years later, and two days before trial,

Kristin moved for dismissal. In response, the defendants objected to the

dismissal and alternatively moved to add Kristin as a nonparty.

Kristin’s attempt to dismiss her claim on the eve of trial raised for

the first time the possibility to add her as a nonparty. See Owens Corning

Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 915 (Ind. 2001). It was clear

from the defendants’ answer that they asserted that Kristin was negligent

in permitting her five-year-old daughter to venture onto city streets and

that that negligence contributed to the accident. Under these

circumstances, if a plaintiff is to be dismissed on her own motion, it is

an abuse of discretion to deny leave to amend the answer to add her as a

nonparty. If that had been done, the jury would have been required to

allocate fault between Witte and Kristin as would have been the case if

Mikayla had been the only plaintiff from the outset. The plaintiffs alone

created the situation where only on the eve of trial was the case in a

posture of a single plaintiff, Mikayla, against the defendants. The

plaintiffs should not be permitted to gain an advantage and deprive the

defendants of the nonparty defense by this maneuver.

II. Testimony by Investigating Officer

At trial, the defendants called Officer Christopher McCarty, who

investigated the accident scene. McCarty testified that Witte’s version of

the accident as reported to him shortly after the accident was “consistent

with” Witte having less than one second to react. He also expressed his

conclusion that Witte was not at fault. Mikayla objected to this

testimony, arguing that McCarty was not an eyewitness and was not qualified

to testify as an expert. Specifically, Mikayla argued that McCarty should

not be permitted to give his opinion on fault. The trial court overruled

the objection and Mikayla asserts that as error on appeal.

The defendants do not claim that Officer McCarty qualified as an

expert. Rather, they first assert that it is possible that further

testimony could have been elicited from Officer McCarty that would have

qualified him as an expert. The defendants do not point to any evidence

that was offered to shore up McCarty’s expertise. Nor do they cite any

legal authority in support of the proposition that the possibility that

further evidence might qualify an expert is sufficient to permit

unqualified testimony. The defendants had the burden of establishing the

ability of their witness to give the proffered testimony. Lytle v. Ford

Motor Co., 814 N.E.2d 301, 308 (Ind. Ct. App. 2004). In view of their

failure, the trial court erred in admitting McCarty’s opinion on fault and

his conclusion on the reaction time available to Witte.

The defendants next argue that admission of McCarty’s testimony was

harmless because it was cumulative of testimony provided by Mikayla herself

and also by John Wiechel, a biomechanical engineer. Mikayla was asked on

cross-examination whether she thought the person driving the car that hit

her did anything wrong and she answered “No.” Mikayla objected to this

exchange at trial, but does not raise it as error on appeal. John Weichel,

a mechanical engineer called by the defense, also testified that according

to his reconstruction of the accident, Witte could not have avoided the

accident.

We think admission of Officer McCarty’s testimony cannot be sustained

as cumulative. Error in the admission of evidence may be harmless when the

evidence is merely cumulative of other properly admitted evidence. Ind.

Trial Rule 61; Crawford v. State, 770 N.E.2d 775, 779 (Ind. 2002). Black’s

Law Dictionary 596 (8th ed. 2004) defines cumulative evidence as

“additional evidence that supports a fact established by the existing

evidence (especially that which does not need further support).” We think

it is obvious that the admission by an eight-year-old child on cross-

examination that someone did not do “anything wrong” in an accident that

occurred three years earlier is not very persuasive. The child’s admission

surely requires “further support.” Similarly, because the opposing parties

presented accident reconstruction experts who rendered opposing

conclusions, and thus turned on disputed factual inferences, McCarty’s

evidence was not merely cumulative of Weichel’s testimony. Newell v.

Walker, 478 N.E.2d 1246, 1250 (Ind. Ct. App. 1985). The ultimate question

in evaluating cumulative evidence is essentially the same as for harmless

error: was the admission of the improper evidence a serious candidate to

influence the trier of fact?

Although not cumulative, we think the officer’s testimony was harmless

under these circumstances. Harmlessness is ultimately a question of the

likely impact of the evidence on the jury. Boatright v. State, 759 N.E.2d

1038, 1042 (Ind. 2001). Officer McCarty was asked whether he determined

after his investigation whether Witte was at fault for the accident and

answered simply, “she was not.” The entire body of Officer McCarty’s

challenged testimony was as follows:

Q. But if you could tell the jury what you found based on your

investigation. Based on talking to [Witte]. Based on looking at the

scene. Everything.

A. That the vehicle, the car was traveling west on Ninth Street when a

child on a bike came through the intersection and into her path of

travel.

Q. Do you know which way the bike came? In other words, did it come

north to south, was it going south to north, or do you know?

A. It was, uh, north to south. Be from right to left. As you’re

going to the west.

Q. And, you don’t have to tell us exactly what was said but, was . . .

Monica Witte at the scene was she calm or was she shaken up?

A. Shaken up.

Q. Okay, Did she know exactly where the bike came from, where it was

going? How it got into the intersection?

A. No; she did not.

Q. Would that be consistent with having less than one second to react?

A. Yes; it would.

At this point, Mikayla objected, arguing that there was no “foundation

laid for Mr. McCarty to be able to determine whether or not she had one

second to react.” This objection was overruled. Officer McCarty was then

asked over Mikayla’s objection whether he concluded if Monica was at fault:

Q. After your investigation, did you make a determination whether

Monica Witte was at fault for this accident?

A. Yes; I did.

Q. And what was that determination?

A. That she was not.

On cross-examination. McCarty was asked how he determined what

direction Mikayla was traveling and answered “Through statements, uh, from

the driver of the vehicle.” Mikayla pointed out that other testimony and

evidence indicated that Mikayla was riding south to north rather north to

south as Officer McCarty had concluded. McCarty was also asked whether he

performed any calculations or speed formulae and answered, “No. I’m not a

reconstructionist.” We think it clear that McCarty’s opinion was based

solely on what Witte told him, and he did not claim expertise in accident

reconstruction. It therefore had minimal impact on the jury. We hold that

the erroneous admission of McCarty’s brief testimony was harmless.

Conclusion

The trial court’s granting a new trial is reversed. This case is

remanded with instructions to enter judgment based on the jury verdict.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

-----------------------

[1] The trial court instructed the jury on proximate cause:

Proximate cause is that cause which produces the injury complained of

and without which the result would not have occurred. That cause must

lead in a natural and continuous sequence to the resulting injury

unbroken by any intervening cause. An[] intervening cause is an

action by a third party or agency that breaks the causal connection

between the defendant’s alleged negligence and the injury. If you

decide that the injury to the Plaintiff could not have occurred

without the action of the third party or agency, then the Plaintiff

cannot recover from the Defendant. However, if you find that the

Defendant acted negligently and could have reasonably foreseen the

actions of the third party or agency, then the Defendant can still be

liable for the Plaintiff’s injuries.