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Penn Harris Madison School Corp. v. Howard8/16/2005
like age, intelligence, and experience. Brief of Appellee at 31; see Honeycutt ex. rel. Phillips v. City of Wichita, 796 P.2d 549, 551 (Kan. 1990). But we are bound to follow the precedent of our supreme court as set out in Creasy. See Hatchett v. State, 740 N.E.2d 920, 926 n.13 (Ind. Ct. App. 2000), trans. denied. Finally, Howard contends that any error in the giving of instruction No. 3 was harmless. Again, we cannot agree. Whether Howard's conduct is to be compared to a reasonable adult or to a reasonable person of like age, intelligence, and experience is critical to the jury's determination of contributory negligence in this case.
We conclude that the trial court abused its discretion when it gave instruction No. 3 because it is not a correct statement of the law. We reverse and remand for a new trial and instruct the trial court to give an instruction that sets out the correct statement of the law as reflected in Creasy and in Indiana Pattern Jury Instruction No. 5.25.
Issue Two: Last Clear Chance
Penn next contends that the trial court abused its discretion when it instructed the jury on the last clear chance doctrine because that instruction was unsupported by the evidence. In particular, Penn asserts that the doctrine is not applicable here because there is no evidence that Penn had the last opportunity to avoid Howard's injury. Again, we must agree.
Instruction No. 12 provides:
Indiana has adopted the doctrine of last clear chance to allow for recovery by a plaintiff in a claim involving alleged negligence on the part of the defendant and the plaintiff. The last clear chance doctrine provides that the contributory negligence of a plaintiff does not prevent recovery by that plaintiff for the negligence and injuries caused by the defendant where it appears that the defendant by exercising reasonable care might have avoided injuring the plaintiff, notwithstanding the plaintiff's own negligence. A plaintiff may recover under the last clear chance doctrine if a plaintiff proves, by a preponderance of the evidence, the following:
1. the defendant had actual knowledge of the plaintiff;
2. the defendant knew of plaintiff's perilous position;
3. the defendant had physical control over the instrumentality and had the last opportunity through the exercise of reasonable care to avoid the injury; and
4. the plaintiff was oblivious to his own danger, notwithstanding his contributory negligence.
Appellant's App. at 12-13 (emphasis added).
Our supreme court has explained the last clear chance doctrine as follows:
For the last clear chance doctrine to be operative, the plaintiff, through his own negligence, must have placed himself in a position of peril from which he cannot extricate himself, or to which he is oblivious. In addition, the defendant must know of the plaintiff's perilous position, and must have the last clear chance to avoid the injury to the plaintiff. The defendant then must have failed to exercise due care to prevent the injury . . . . "The last clear chance contemplates a known peril which can be avoided by due care, not a peril which might have been known by the exercise of due care. In other words, it is the negligent failure to avoid a discovered peril that makes [the doctrine] applicable . . . ." However, knowledge of the plaintiff's peril is not, of itself, sufficient to impose liability.
In addition, there is implicitly an element of time involved. In order for the doctrine to apply, the peril must be known "in time to clearly afford an opportunity [for the defendant] to avoid injuring the one in peril."
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