Attorneys for Appellants Attorneys for Appellees
Michael H. Michmerhuizen Konrad M. L. Urberg
Patrick G. Murphy Joseph Christoff
Fort Wayne, Indiana Fort Wayne, Indiana
Indiana Supreme Court
Monica, James, and Diane Witte,
Appellants (Defendants below),
Mikayla Mundy, a minor, by her next
friend, parent and guardian, Kristin
Appellees (Plaintiffs below).
Appeal from the DeKalb Superior Court, No. 17D01-0012-CT-15
The Honorable Kevin Wallace, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 17A05-0303-CV-147.
January 6, 2005
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.
Mikaylas mother, Kristin, sued as Mikaylas 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 Mikaylas motion in
limine to preclude the defense from introducing evidence of Kristins negligence. At
trial, however, over Mikaylas 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 Kristins
failure to train and supervise Mikayla was the proximate cause of Mikaylas 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 Kristins failure to supervise Mikayla was the proximate cause
of Mikaylas injuries violated the courts 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 Mikaylas 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 courts denial of the defendants motion to add Kristin as a
nonparty raises two distinct issues: 1) whether Kristin, Mikaylas 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 courts error required a retrial and affirmed
the trial courts grant of Mikaylas 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 Kristins actions broke the causal connection between the injury and whatever
negligence was attributable to Witte irrespective of whether Kristins intervening cause was the
result of negligence.
See footnote If so, Kristins role in the accident would preclude
liability if her actions were not reasonably foreseeable by Witte.
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 courts 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 adults negligent supervision cannot be a contributing cause to the childs 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 Mikaylas 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 plaintiffs 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 defendants 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 courts instruction that the parents 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 courts 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 companys 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 Kristins actions, Wittes 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
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 Kristins 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.
Kristins 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 Wittes 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
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 McCartys 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 McCartys
opinion on fault and his conclusion on the reaction time available to Witte.
The defendants next argue that admission of McCartys 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 McCartys 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). Blacks 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 childs 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, McCartys evidence
was not merely cumulative of Weichels 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 officers 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 McCartys 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
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
A. It was, uh, north to south. Be from right to left.
As youre going to the west.
Q. And, you dont 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 Mikaylas 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. Im not a reconstructionist. We think it clear that
McCartys 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 McCartys brief testimony
The trial courts 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.
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 defendants 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 Plaintiffs