 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS:                           ATTORNEY FOR APPELLEE:

ALEXANDER P. PINEGAR                                JASON L. HORN
SAMUEL R. ROBINSON                                  State Farm Litigation Counsel
Church, Church, Hittle, & Antrim                    Crown Point, Indiana
Noblesville, Indiana


                                                                            Apr 14 2014, 9:29 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

JAY DARLAND and KATHLEEN DARLAND,                   )
                                                    )
       Appellants-Plaintiffs,                       )
                                                    )
               vs.                                  )      No. 06A04-1308-PL-403
                                                    )
ELIZABETH RUPP,                                     )
                                                    )
       Appellee-Defendant.                          )


                      APPEAL FROM THE BOONE SUPERIOR COURT
                         The Honorable Matthew C. Kincaid, Judge
                              Cause No. 06D01-1102-PL-104


                                          April 14, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       Jay Darland and Kathleen Darland (the “Darlands”) appeal the trial court’s judgment

in favor of Elizabeth Rupp, following a jury trial, on the Darlands’ complaint seeking

damages arising from a car accident. The sole issue presented for our review is whether the

trial court abused its discretion and committed reversible error in giving the jury a sudden

emergency instruction. Finding no abuse of discretion, we affirm.

                               Facts and Procedural History

       The facts most favorable to Rupp indicate that on December 23, 2008, the Darlands

were traveling by car from Columbus, Ohio, to Davenport, Iowa. In doing so, they drove on

Interstate 74 (“I-74”) westbound through Boone County. On the same day, Rupp began a

trip driving from Bloomington, Indiana, to Aurora, Illinois. When Rupp left Bloomington, it

was sunny and warm enough outside for her to wear just a sweatshirt. It started raining by

the time Rupp reached I-465 in Indianapolis, and it was still raining when she exited onto I-

74 westbound. Rupp was driving approximately ten miles per hour below the posted seventy

mile per hour speed limit because she knew the roads were wet. While driving, Rupp

suddenly observed the brake lights of stopped traffic ahead of her. She attempted to slow

and stop her vehicle by repeatedly pressing her brakes, but her attempts were unsuccessful

due to icy road conditions. Rupp’s vehicle crashed into the back of the Darlands’ vehicle.

Rupp did not realize that it was sleeting outside until after the collision because she felt sleet

hitting her face when she exited her vehicle.




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        The Darlands subsequently filed a complaint for negligence against Rupp. A jury trial

was held on July 15 and 16, 2013. At the close of the evidence, the parties submitted their

proposed final jury instructions which included Rupp’s proposed instruction regarding the

sudden emergency doctrine. The Darlands objected to that instruction arguing that there was

insufficient evidence to support a sudden emergency instruction. The court overruled the

objection and gave the sudden emergency instruction to the jury. Thereafter, the jury

returned its verdict in favor of Rupp. The trial court entered judgment on the jury’s verdict

on August 13, 2013. This appeal ensued.

                                        Discussion and Decision

        The Darlands assert that the trial court abused its discretion and committed reversible

error in giving the jury a sudden emergency instruction.1 As a general matter, a trial court has

broad discretion when it comes to instructing the jury. Fechtman v. U.S. Steel Corp., 994

N.E.2d 1243, 1247 (Ind. Ct. App. 2013), trans. denied (2014). Upon appellate review of a

trial court’s decision to give or to refuse a tendered jury instruction we consider: (1) whether

the instruction correctly states the law; (2) whether there was evidence in the record to

support the instruction; and (3) whether the substance of the instruction is covered by other

instructions. Piatek v. Beale, 994 N.E.2d 1140, 1147 (Ind. Ct. App. 2013), trans. denied.

When reviewing the sufficiency of the evidence supporting an instruction, we look only to

the evidence most favorable to the appellee and any reasonable inferences to be drawn


        1
           In their reply brief, the Darlands assert that Rupp’s appellee’s brief was untimely filed and that we
should therefore disregard it. While we are unaware of the specific circumstances, this Court’s docket
indicates that our chief judge issued an order deeming the appellee’s brief properly filed. Accordingly, we will
consider all briefs as timely submitted for our review.

                                                       3
therefrom. Green River Motel Mgmt. of Dale, LLC v. State, 957 N.E.2d 640, 645 (Ind. Ct.

App. 2011), trans. denied. We will reverse the trial court’s decision to give or refuse an

instruction for an abuse of discretion. Id. A party seeking a new trial on the basis of an

instructional error must demonstrate a reasonable probability that his or her substantial rights

have been adversely affected. Piatek, 994 N.E.2d at 1147.

       The sudden emergency doctrine was developed by courts “to recognize that a person

confronted with sudden or unexpected circumstances calling for immediate action is not

expected to exercise the judgment of one acting under normal circumstances.” Willis v.

Westerfield, 839 N.E.2d 1179, 1184 (Ind. 2006) (citing W.P. Keeton, D. Dobbs, R. Keeton &

D. Owen, Prosser and Keeton on the Law of Torts § 33 at 196 (5th ed. 1984)). Specifically,

       [t]he basis of the doctrine is that the actor is left no time for adequate thought,
       or is reasonably so disturbed or excited that the actor cannot weigh alternative
       courses of action, and must make a speedy decision, based very largely upon
       impulse or guess. Under such conditions, the actor cannot reasonably be held
       to the same accuracy of judgment or conduct as one who has had full
       opportunity to reflect, even though it later appears that the actor made the
       wrong decision, one which no reasonable person could possibly have made
       after due deliberation.

Id. (quotation marks omitted). A defendant requesting a sudden emergency jury instruction

must demonstrate that three factual prerequisites have been satisfied: (1) the defendant must

not have created or brought about the emergency through his own negligence; (2) the danger

or peril confronting the defendant must appear to be so imminent as to leave no time for

deliberation; and (3) the defendant’s apprehension of the peril must itself be reasonable. Id.

at 1184-85. The sudden emergency doctrine is not considered an affirmative defense, but

rather, “[t]he emergency is merely one of the circumstances to be considered in determining

                                               4
whether the actor’s conduct was reasonable under all of the circumstances.” Id. at 1186

(citation omitted).

       In analyzing the evidence in a sudden emergency case, we must first define what the

sudden emergency was. See Collins v. Rambo, 831 N.E.2d 241, 246 (Ind. Ct. App. 2005).

Here, the emergency, if there was one facing Rupp, was the sudden onset of icy road

conditions coupled with stopped traffic on I-74. The Darlands concede that this emergency

was not brought about by Rupp’s own negligence and that her apprehension of the peril itself

was reasonable. Instead, according to the Darlands, Rupp failed to demonstrate that the

danger or peril confronting her was so imminent as to leave her no time for deliberation.

Therefore, they argue, the evidence did not support the giving of a sudden emergency

instruction.

       The evidence indicates that Rupp began her trip in fairly warm and sunny weather.

Rupp testified that it was raining when she reached I-465 in Indianapolis and it was still

raining when she exited onto I-74. Rupp testified that she was traveling approximately ten

miles per hour below the speed limit because she knew that the roads were wet.        Rupp

testified that when she suddenly observed the stopped traffic ahead of her, she tried

repeatedly to press her brakes. However, her car would not stop on what had become an icy

road, causing her to crash into the Darlands’ vehicle. Based upon Rupp’s testimony, there is

support for the fact that the peril confronting Rupp was so imminent as to leave her no time

for deliberation. In other words, due to the nature of the emergency, Rupp was unable to

consider slowing down sooner, or driving even further below the speed limit to prevent the


                                             5
accident from occurring. See id. at 248 (evidence must show that defendant faced choices

and/or had alternatives but insufficient time to deliberate).

       The Darlands direct us to Lovings v. Cleary, 799 N.E.2d 76 (Ind. Ct. App. 2003),

trans. denied (2004), and Barnard v. Himes, 719 N.E.2d 862 (Ind. Ct. App. 1999), trans.

denied (2000), in support of their argument that the icy road conditions would have been

apparent to Rupp prior to the collision, and thus Rupp faced nothing sudden or unexpected.

In those cases, we concluded that a sudden emergency instruction was inappropriate under

circumstances in which the record indicated that snowy and icy road conditions were

apparent or known to the defendant, and therefore it could not be said that the defendant was

confronted with a danger so imminent as to leave no time for deliberation. See Lovings, 799

N.E.2d at 78-79 (evidence indicated that dangerous road conditions were apparent to

defendant who was driving on curvy, hilly roads as snow and freezing rain fell); Barnard,

719 N.E.2d at 869 (evidence indicated that snowy and icy road conditions were known to

defendant prior to collision as defendant testified that she left early from work due to weather

conditions). However, unlike in those cases, Rupp specifically stated that she perceived no

hazardous road conditions prior to the collision other than rain. Indeed, Rupp stated that she

did not notice that the rain was actually sleet until after the collision when she stood outside

her vehicle and felt sleet hitting her face.

        As long as some evidence supports the giving of the sudden emergency instruction,

the instruction may properly be given to a jury. Brooks v. Friedman, 769 N.E.2d 696, 700-01

(Ind. Ct. App. 2002), trans. denied. It is then the jury’s role to weigh the evidence and


                                               6
determine whether the sudden emergency doctrine applies and whether the defendant acted

reasonably under the circumstances. Id. On the record as presented, there is some evidence

to support the fact that the danger confronting Rupp was so imminent as to leave her

insufficient time for deliberation. Accordingly, we cannot say that the trial court abused its

discretion in giving the jury a sudden emergency instruction.

       Affirmed.

BAKER, J., and NAJAM, J., concur.




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