holding giving of sudden emergency instruction reversible error where trial court also erroneously allowed evidence of "faked left syndrome" upon which alleged emergency was based
How later courts described this case
- holding giving of sudden emergency instruction reversible error where trial court also erroneously allowed evidence of "faked left syndrome" upon which alleged emergency was based
- noting waiver of review of the issue where the appellant fails to comply with the rule, but the issue was considered on the merits, acknowledging that the defect was remedied in the reply brief
- the appellant challenged the admission of expert testimony regarding the faked left syndrome,3 arguing that there was no evidence that the factual scenario occurred in which the syndrome would be applicable; the court reversed upon observing that the plaintiff “admitted during cross-examination that there was no evidence that [the decedent] was ever in [the defendant’s] lane” and that “there must be some evidence other than the opinion itself that there was a ‘faked left’ occurrence for the opinion to pass muster”
- defendant’s expert’s testimony about the “faked left syndrome” was unsupported by the physical evidence or testimony and trial court abused its discretion in admitting it
Written by the judges who cited it.
The opinion
SHARPNACK, Judge,
concurring and dissenting in part.
I respectfully concur in part and dissent in part. I agree with the majority’s conclusions in Issues I, II, III, and IV; however, I disagree with the majority’s ultimate conclusion that the judgment should be reversed and remanded for a new trial.
As the majority notes, we will affirm a general verdict if the evidence is sufficient to sustain any theory of liability. Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind.1988). The Indiana Supreme Court applied this principle in the context of multiple theories of liability presented by a plaintiff in PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 950 (Ind.2005), abrogated on other grounds by Helms v. Carmel High School Vocational Building Trades Corp., 854 N.E.2d 345 (Ind.2006). There, the court noted that “a general verdict will be sustained if the evidence is sufficient to sustain any theory of liability.” The plaintiff had pursued vicarious liability and premises liability theories. 829 N.E.2d at 948 . The court held that PSI was not vicariously liable. Id. at 957 . Under the premises liability theory, the court held that the instructions were erroneous. Id. at 962 . However, PSI did not object to the instructions and raised no issue regarding them on appeal. Id. Rather, PSI argued that the evidence was insufficient to support liability under the premises liability theory. Id. The court also noted that “[e]ven erroneous instructions require affirmance if there is no objection at trial and the facts support recovery under the *585 instructions.” Id. (citing Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind.1988); Ind. Trial Rule 51(C)). Even though PSI was not liable under the vicarious liability theory and the premises liability instructions were erroneous, the court affirmed the judgment against PSI because the evidence was sufficient under the premises liability instructions to sustain the jury’s verdict. Id.; see also PSI Energy, Inc. v. Roberts, 834 N.E.2d 665, 668-669 (Ind.2005) (clarifying on rehearing that “in a civil case the only issue preserved by a motion challenging the sufficiency of the evidence ... is the sufficiency of the evidence under the instructions” and that “a claim of sufficiency of the evidence is judged against the instructions”).
Similarly, here, the Defendants argued both that Dyer’s speed was a proximate cause of his death and that Doyle was confronted with a sudden emergency, which resulted in a faked left syndrome accident. The jury’s verdict for the Defendants could have been based upon either defense theory. Although we have con-eluded that the trial court abused its discretion by admitting evidence regarding the faked left syndrome and by instructing the jury regarding sudden emergency, the Estate waived any argument concerning Dyer’s speed as a proximate cause of his death. As a result of the Estate’s waiver, the jury could have found that Dyer was greater than fifty percent at fault for his death due to his speed, and the verdict is sustainable on this basis. As in PSI, regardless of the errors in the admission of evidence and jury instructions, we can affirm the general verdict if the evidence is sufficient to sustain any theory of liability. Consequently, despite the errors in the trial, I would affirm judgment for the Defendants.