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Pryor v. Hoskins9/11/2002
y was that he could not remember whether it was foggy that night when he parked. He further said that even if there had been heavy fog, "I just parked it where I generally parked it," and he "wouldn't have any concern" about the fog. (Tr. 665). Ward believed "it was legal to park there, and no extra precautions were necessary." (Tr. 666). According to an expert witness, visibility that night began decreasing at 5:45 p.m., (Tr. 524), and it was "highly likely" that the fog that evening had steadily worsened from 7:45 p.m. until it peaked about 2:00 a.m. (Tr. 561). Thus, the evidence about the nature of the fog when Ward parked his trailer - according to his own testimony, possibly as late as 1:00 a.m. - is not undisputed.
The truckers' contention is that Hoskins failed to present sufficient evidence that Ward's parking the truck where he did that night was the proximate cause of her injuries. "A party's act is the proximate cause of an injury if it is the natural and probable consequence of the act and should have been reasonably foreseen and anticipated in light of the circumstances." Potts v. Williams, 746 N.E.2d 1000, 1008 (Ind. Ct. App. 2001). Based upon the evidence about the fog up to the time Ward parked his trailer, the condition of his trailer, and the particular characteristics of the roadway where he parked it, the reasonable inference can be drawn that Ward should have reasonably foreseen that his trailer could be not visible to a passing motorist and, therefore, could cause a collision resulting in injuries. Because the evidence sufficed to show the essential element of proximate cause, the trial court did not abuse its discretion in denying the truckers' motion for judgment on the evidence.
We reverse and remand for a new trial.
BAKER, J., concurs.
SULLIVAN, J., concurs with separate opinion.
SULLIVAN, Judge, concurring
I agree that the refusal of the trial court to honor the truckers' peremptory challenge of Ms. Ivy requires reversal and remand for a new trial. However, in doing so, I would proffer a slightly different analysis of the three-pronged basis for the challenge.
The challenge was made upon three grounds:
(1) Ivy's statement that because of two incidents, truck drivers " not my favorite." Tr. at 33.
(2) Ivy recalled knowing Hoskins's children who sang in Ivy's church choir and thought of them as social acquaintances.
(3) Because Ivy and Hoskins were both very active in their churches, Ivy might identify with Hoskins, causing her to favor the plaintiff.
To be sure, Ivy stated that, in spite of these factors, she could hear the evidence and judge the case "with an open mind." Tr. at 35. Nevertheless, in the context of a peremptory challenge, absent a Batson type objection, no reason need be given for the challenge. Price v. State, 725 N.E.2d 82 (Ind. 2000). The defendants were not required to accept Ivy's claim of objectivity.
In this regard it is important to note that a Batson type objection to a peremptory challenge is available in civil litigation as well as in criminal cases or other cases in which the government is involved. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S. Ct. 2077 (1991) (the Court majority, with Justices O'Connor, Scalia, and the Chief Justice dissenting, found a racially-based peremptory challenge by a private litigant involved state action sufficient to trigger federal constitutional principles).
In the case before us, Hoskins concedes that Ivy's expressed attitude toward truck drivers and her acquaintance with Hoskins's daughters were racially neutral. The majority here sta
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