Bailey, J.
Case Summary
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.
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No Sudden Emergency
In determining whether an instruction on sudden emergency is appropriate, the court must first determine exactly what the sudden emergency was. Collins v. Rambo, 831 N.E.2d 241, 246 (Ind. Ct. App. 2005). Hites’s sudden emergency defense is based entirely upon her theory that she suddenly came upon black ice that was not visible, and that driving on the black ice caused her to lose control of her vehicle. However, the record is completely devoid of evidence that Hites’s vehicle drove over black ice. Hites herself never testified that she drove over black ice. Rather, she testified that the roads were not icy that day and that she never saw any ice. And when she was asked by her lawyer whether she even experienced the sensation of hitting a patch of ice, she replied only: “I remember down – all the way up and to that point from my home until the point of the accident. And not having an issue. And then all of sudden my rear-end goes left, so.” Tr. Vol. IV at 48.
The only evidence regarding the existence of black ice is Trooper Leatherman’s testimony 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.” Tr. Vol. III at 89. However, Trooper Leatherman testified that he did not witness the accident. Moreover, he never testified that Hites did, in fact, drive over black ice, nor did he express a belief that black ice is what caused the accident. Rather, he testified that, following his investigation, he concluded that Hites had been driving at a speed too fast for the existing weather conditions that day.
While the trial court was required to interpret the evidence in the light most favorable to Hites when deciding whether to give her requested instruction on sudden emergency, Frito-Lay, Inc. v. Cloud, 569 N.E.2d 983, 987 (Ind. Ct. App. 1991), there simply was no evidence supporting the existence of a sudden emergency in this case. [Footnote omitted.] Rather, Hites’s contention that black ice created a sudden emergency is pure speculation. Cf. Compton, 561 N.E.2d 803, 807-08 (discussing cases where evidence of a sudden emergency existed). Therefore, the trial court abused its discretion when it gave the sudden emergency jury instruction.
Prejudicial Error
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…[T[he instruction in the instant case, which was the pattern jury instruction on sudden emergency, did require that the jury make a determination as to whether or not Hites’s negligent action caused the alleged emergency. [Footnote omitted.] Indiana courts have found that similarly-worded sudden emergency instructions that were erroneously given did not affect the plaintiff’s substantial rights. E.g., Baker, 242 N.E.2d at 515-16 (holding that a similarly-worded, erroneously-given instruction was not prejudicial because it required the jury to either find the instruction inapplicable if it was not supported by any evidence, or, if applicable, simply apply the normal negligence standard to an emergency situation); [Footnote omitted.] Taylor v. Todd, 439 N.E.2d 190, 193 (Ind. Ct. App. 1992) (reaching the same conclusion regarding a similarly-worded sudden emergency instruction). Thus, an erroneously given but properly worded sudden emergency instruction “has rarely been considered reversible error” in the absence of other, additional errors. [Footnote omitted.] Taylor, 439 N.E.2d at 194; see also Penn Harris, 861 N.E.2d at 1197 (citing Baker, 242 N.E.2d at 515) (emphasis added) (“[W]here an instruction presents a correct statement of law, but no evidence supports it, the objecting party is generally unharmed by the instruction.”).
Here, as in Baker and Taylor, the erroneously-given sudden emergency instruction, together with the instruction on negligence, would not have precluded the jury from considering whether Hites’s actions leading up to the alleged emergency were negligent and caused the alleged emergency; therefore, the giving of the instruction, alone, would not have been prejudicial to Yates. However, unlike in Baker and Taylor, the record here discloses that, in closing arguments, Hites’s lawyer extensively argued the application of the sudden emergency doctrine to justify Hites’s presence in Yates’s traffic lane and thereby avoid liability. Tr. Vol. IV at 148-166. Therefore, even though the jury should have found the sudden emergency instruction inapplicable due to a lack of evidence to support it and therefore disregarded that instruction, Baker, 242 N.E.2d at 515, it is much more likely that the jury did improperly consider and rely upon the sudden emergency instruction in reaching its verdict, thereby causing prejudice to Yates. See Buhring v. Tavoletti, 905 N.E.2d 1059, 1068 (Ind. Ct. App. 2009) (holding that an erroneously-given instruction was prejudicial error under either the Penn Harris or Fleetwood Enters. standards because “the matters discussed in the instructions at issue were emphasized to the jury, and the likelihood that the matters were discussed and impacted the jury’s verdict is significant.”).
Conclusion
Because there was no evidence of the existence of a sudden emergency, the trial court erred in giving the sudden emergency instruction. Moreover, because Hites’s closing argument put so much emphasis on the sudden emergency doctrine, it is likely that the jury improperly considered and relied upon the sudden emergency instruction in reaching its verdict for Hites. Therefore, we reverse and remand for a new trial. See, e.g., Collins, 831 N.E.2d at 250.
Reversed and remanded for a new trial.
Crone, J., and Brown, J., concur.