                                                                               FILED
                                                                          May 18 2018, 9:08 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Robert D. Brown                                           J. Patrick Schomaker
Sarah M. Cafiero                                          SMITH, ROLFES & SKAVDAHL
KENNETH J. ALLEN LAW GROUP, LLC                           COMPANY, LPA
Valparaiso, Indiana                                       Cincinnati, Ohio



                                            IN THE
    COURT OF APPEALS OF INDIANA

Calvin B. Yates,                                          May 18, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          44A03-1710-CT-2459
        v.                                                Appeal from the LaGrange
                                                          Superior Court
Rebecca Hites,                                            The Honorable Lisa M. Bowen-
Appellee-Defendant.                                       Slaven, Judge
                                                          Trial Court Cause No.
                                                          44D01-1601-CT-1



Bailey, Judge.




Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018                            Page 1 of 16
                                           Case Summary
[1]   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.


[2]   We reverse and remand for a new trial.



                             Facts and Procedural History
[3]   In the early morning of January 31, 2014, Hites, who lives in Shipshewana,

      received a phone call from her friend, Dave Smith (“Smith”). Smith asked

      Hites if she would pick him up because his car had broken down on County

      Road 43. While traveling westbound on U.S. 20 on her way to assist Smith,

      Hites suddenly lost control of her vehicle, causing her vehicle to swerve across

      the centerline of U.S. 20 and strike Yates’ eastbound vehicle. Yates sustained

      injuries as a result of the crash.


[4]   On August 10, 2015, Yates filed a complaint against Hites, alleging that she

      negligently and recklessly drove her vehicle so as to cross the centerline, crash

      into his vehicle, and cause him personal injuries. Prior to the jury trial, Hites

      requested a special jury instruction regarding “sudden emergency.” Appellant’s

      App. Vol. II at 136-139. However, Yates moved in limine to exclude testimony,

      evidence, or argument that Hites was confronted with a sudden emergency. Id.

      Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018   Page 2 of 16
      at 94. Yates also moved in limine to exclude any testimony or argument that

      Hites “drove over ‘black ice’ or that ‘black ice’ somehow caused the motor

      vehicle crash,” since Hites had stated in her deposition that she had not seen

      any black ice on the roadway and that her “contention that there was black ice

      on the road [was] just an assumption on [her] part.” Id. at 93, 117-18.1 On

      September 12, 2017, the trial court granted Yates’s motions in limine regarding

      black ice and sudden emergency. And, on September 20, the trial court rejected

      Hites’s proposed instruction regarding sudden emergency.


[5]   The case proceeded to jury trial on September 26-28. At trial, Hites testified

      that, at the time of year when she was driving (i.e., January), “there’s a

      potential for snow and ice to be on the roadway,” Tr. Vol. III at 57, and a

      “possibility that the roads could be slippery,” id. at 55. She also testified that

      the day prior to the accident, i.e., January 30, the “weather had been

      particularly bad and hard for cars.” Id. at 55. However, she testified that, while

      she was driving on January 31, 2014, it was not snowing, raining, or sleeting,

      and the roads “for the most part were clear.” Id. at 54-55. She testified that

      visibility was “fine,” id. at 54, and she had not seen any ice on the roads that

      morning, Tr. Vol. IV at 48. Hites testified she was traveling at 30 miles per




      1
        Although the Exhibit Index prepared by the trial court reporter indicates that Hites’s deposition was
      admitted into evidence as Exhibit 19 at page 51 of transcript volume III, we find no such admission; rather,
      the transcript shows only that Yates “tendered” Exhibit 19. Tr. Vol. III at 51. And, while relevant portions
      of Hites’s deposition transcript are contained in the record as exhibit attachments to Yates’ Motion In Limine,
      App. Vol. II at 93, 117-18, that document also was never entered into evidence. Therefore, we cannot
      consider Hites’s deposition on appeal. See, e.g., Cochran v. Rodenbarger, 736 N.E.2d 1279, 1283 (Ind. Ct. App.
      2000).

      Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018                           Page 3 of 16
      hour on U.S. 20, although the speed limit was 50 miles per hour. Id. at 45; Tr.

      Vol. III at 56. She also testified that, while she was driving that day, she had

      both hands on the steering wheel and her eyes on the road, and that she was not

      “doing anything at all that might have distracted [her] from driving.” Tr. Vol.

      IV at 48. She testified that the vehicle she was driving was equipped with

      “hands free or Bluetooth capabilities” for using a cellular phone. Id. at 45.


[6]   Yates introduced into evidence the AT&T records of Hites’s cellular telephone

      calls on January 31, 2014. Plaintiff’s Ex. 26, Ex. Vol. VI. Those records

      demonstrated that Hites placed a five-minute telephone call to Smith at 8:53

      a.m.; a two-minute call to her husband, William Hites Jr. (“William”), at 9:08

      a.m.; a one-minute phone call to Suzanne Frazier (“Suzanne”), the owner of

      the car Hites was driving, at 9:10 a.m.; and a two-minute phone call to

      Suzanne’s husband, James Frazier (“James”), at 9:11 a.m. At trial, Hites

      testified that she did not remember making any telephone calls in the moments

      before the crash, Tr. Vol. III at 65, at the time of the crash, id. at 69-70, or after

      the crash, id. at 70. In fact, Hites testified she did not remember any of the

      events immediately following the crash. However, she testified that she did not

      dispute the accuracy of the AT&T records in Exhibit 26.


[7]   When Yates asked Hites at trial whether she had called her husband at 9:08

      a.m. “to let him know that [she] had stopped at the gas station and used the

      bank card to gas up,” Hites testified that, although she did not remember calling

      anyone before the crash, Tr. Vol. III at 65, it was “probably” true that she had

      called her husband for that reason, id. at 50. However, William testified that

      Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018      Page 4 of 16
      Hites had called him a “little after nine o’clock in the morning” on that day to

      tell him that she had been “in an auto accident.” Tr. Vol. IV at 35. And

      Suzanne also testified that the phone call she received from Hites that morning

      was after the crash; she stated that Hites called her to tell her about the crash,

      and that she had not talked to Hites on that day before that call. Id. at 105-06.


[8]   Hites testified she suddenly lost control of the vehicle on January 31. She stated

      that, as the rear end of the vehicle slid left, she “tried to counter-steer.” Id. at

      44. Yates also testified that, when he saw Hites’s vehicle coming toward him in

      his lane, “the driver attempted to correct by making a rapid sharp turn to the

      right,” before her vehicle “fishtailed” and struck his vehicle. Tr. Vol. III at 206.


[9]   Master Trooper Marc Leatherman of the Indiana State Police (“Trooper

      Leatherman”) did not witness the crash, but he arrived at the scene of the crash

      at 9:13 a.m. He testified that he was told by Doug VanVooren (“VanVooren”),

      an eye-witness to the crash, that it appeared to VanVooren that Hites “was

      going too fast for the existing road conditions that morning.” Id. at 81-82.

      Trooper Leatherman testified 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.” Id. at 89. Trooper

      Leatherman believed the accident happened at 9:13 a.m., but testified that “[i]t

      may very well have” happened before 9:08 a.m. Id. at 87. He testified that,

      after completing his investigation of the crash, he concluded that Hites had been

      “driving at a speed too fast for the existing weather conditions that day.” Id. at

      83-84.

      Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018      Page 5 of 16
[10]   At the close of evidence, but before closing arguments, Hites renewed her

       request that the trial court give her previously-tendered jury instruction

       regarding sudden emergency. Hites noted that Yates’s own witness, Trooper

       Leatherman, had testified that there was black ice on the roadway at the time of

       the crash, thereby providing evidence supporting a sudden emergency

       instruction. The trial court agreed. Over Yates’s objection, the trial court

       granted Hites’s request and instructed the jury as follows:


                                        FINAL INSTRUCTION #2


               Defendant claims she was not at fault because she acted with
               reasonable care in an emergency situation. Defendant was not at
               fault if she proves the following by the greater weight of the
               evidence:


                        (1) she was faced with a sudden emergency;


                        (2) she did not cause the emergency;


                        (3) she did not have enough time to consider her options;
                        and


                        (4) she acted as a reasonably careful person would act
                        when facing a similar emergency, even if a different course
                        of action might later seem to have been a better choice.


       Appellant’s App. at 40. The court also gave the following relevant portions of

       an instruction regarding negligence:


                                        FINAL INSTRUCTION #1

       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018      Page 6 of 16
                                                 ***


        Plaintiff, CALVIN B. YATES, claims Defendant, REBECCA
        HITES, was negligent. Negligence is the failure to use
        reasonable care. A person may be negligent by acting or failing
        to act. A person is negligent if he does something a reasonably
        careful person would not do in the same situation or fails to do
        something a reasonably careful person would do in the same
        situation.


        To recover on this claim, the Plaintiff must prove by a
        preponderance of the evidence that:


        1. Defendant acted or failed to act in any one or more of the
           following ways:


             a. Moved at an unreasonable speed;


             b. Did not keep a proper lookout;


             c. Failed to maintain control of her vehicle; and or


             d. Drove while distracted by the use of a cell phone;


        2. Defendant’s act or failure to act was negligent; and


        3. Defendant’s act or failure to act was a proximate cause of
           Plaintiff’s claimed injuries; and


        4. Plaintiff suffered damages as a result of the injuries.


                                                 ***

Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018    Page 7 of 16
       Id. at 39.


[11]   The jury returned a verdict in favor of Hites. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[12]   Yates contends that the trial court erred when it gave the jury a final instruction

       regarding sudden emergency.


               The manner of instructing a jury is left to the sound discretion of
               the trial court. Callaway v. Callaway, 932 N.E.2d 215, 222 (Ind.
               Ct. App. 2010). Its ruling will not be reversed unless the
               instructional error is such that the [instruction] misstates the law
               or otherwise misleads the jury. Id. Jury instructions must be
               considered as a whole and in reference to each other. Id. at 222–
               23. In reviewing a trial court’s decision to give or refuse a
               tendered instruction, we consider: (1) whether the instruction
               correctly states the law; (2) whether there is evidence in the
               record to support giving the instruction; and (3) whether the
               substance of the tendered instruction is covered by the other
               instructions that are given. Id. at 223. To determine whether
               sufficient evidence exists to support an instruction, we will only
               look to that evidence most favorable to the appellee and any
               reasonable inferences to be drawn therefrom. Foddrill v. Crane,
               894 N.E.2d 1070, 1078 (Ind. Ct. App. 2008), trans. denied.
               Finally, “when a jury is given an incorrect instruction on the law,
               we will not reverse the judgment unless the party seeking a new
               trial shows ‘a reasonable probability that substantial rights of the
               complaining party have been adversely affected.’” Id. (citations
               omitted).




       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018    Page 8 of 16
       Kimbrough v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016), trans. denied. If

       there is any evidence to support the instruction, it was properly given. E.g.,

       Faulk v. Northwest Radiologists, P.C., 751 N.E.2d 233, 241 (Ind. Ct. App. 2001),

       trans. denied.


                                 Sudden Emergency Doctrine
[13]   Our Supreme Court has summarized the law regarding the “sudden

       emergency” doctrine:


               In a negligence cause of action, the sudden emergency doctrine is
               an application of the general requirement that one’s conduct
               conform to the standard of a reasonable person. The emergency
               is simply one of the circumstances to be considered in forming a
               judgment about an actor’s fault. The doctrine was developed by
               the 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. The 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. In Indiana, a defendant seeking a sudden
               emergency instruction must show 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.

       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018   Page 9 of 16
       Willis v. Westerfield, 839 N.E.2d 1179, 1184 (Ind. 2006) (quotations and citations

       omitted). A trial court “has a duty to instruct the jury concerning [the sudden

       emergency] defense if there is any evidence to support its application.” Compton

       v. Pletch, 561 N.E.2d 803, 807 (Ind. Ct. App. 1990), adopted on transfer, 580

       N.E.2d 664 (Ind. 1991).


[14]   Yates maintains that the evidence did not support giving the sudden emergency

       instruction,2 and we agree. Moreover, we find that the erroneous giving of the

       instruction was prejudicial to Yates.


                                             No Sudden Emergency

[15]   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




       2
         Yates does not dispute that the sudden emergency instruction correctly stated the law, nor does he contend
       the instruction was covered by other instructions. Kimbrough, 55 N.E.3d at 339.

       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018                        Page 10 of 16
       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.


[16]   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.


[17]   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.3 Rather, Hites’s contention that black ice created a

       sudden emergency is pure speculation. Cf. Compton, 561 N.E.2d 803, 807-08




       3
         Moreover, as we noted in Collins, a sudden emergency cannot exist for a defendant motorist who did not
       perceive the emergency until after the collision. 831 N.E.2d at 246; see also Taylor v. Todd, 439 N.E.2d 190,
       193 (Ind. Ct. App. 1982) (citing Baker v. Mason, 242 N.E.2d 513, 515 (Ind. 1968)) (“Without the perception of
       sudden danger, there is no impairment of judgment and no need for the sudden emergency instruction.”).
       The evidence established that Hites was not aware of the existence of black ice prior to the collision.

       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018                        Page 11 of 16
       (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

[18]   The giving of an erroneous instruction on sudden emergency does not

       necessarily constitute reversible error. Baker v. Mason, 242 N.E.2d 513, 516

       (Ind. 1968). Rather, as our Supreme Court has most recently stated, such an

       error is reversible only where the party seeking a new trial shows a reasonable

       probability that his or her substantial rights have been adversely affected. Penn

       Harris Madison School Corp. v. Howard, 861 N.E.2d 1190, 1195 (Ind. 2007); see

       also Kimbrough, 55 N.E.3d at 339. And “where an instruction presents a correct

       statement of law, but no evidence supports it, the objecting party is generally

       unharmed by the instruction.” Id. at 1197 (citing Baker, 242 N.E.2d at 515).

       However, as we noted in Simmons v. Erie Ins. Exchange, 891 N.E.2d 1059, 1070-

       73 (Ind. Ct. App. 2008), the Supreme Court has also held that “[a]n erroneous

       instruction merits reversal if it could have formed the basis for the jury’s

       verdict.” Id. at 1071 (quoting Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749

       N.E.2d 492, 495 (Ind. 2001)). As in Simmons, “we need not resolve the conflict

       as to the proper standard under which we analyze whether an improper

       instruction necessitates reversal, as we conclude that the giving of the

       instruction in this case is prejudicial and requires reversal under any of the

       standards identified above.” 891 N.E.2d at 1072.



       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018     Page 12 of 16
[19]   This court has found prejudice from the erroneous giving of sudden emergency

       instructions in several cases. See, e.g., Collins, 831 N.E.2d at 244-45; Lovings v.

       Cleary, 799 N.E.2d 76, 78-79 (Ind. Ct. App. 2004), trans. denied. However, in

       those cases, the sudden emergency instruction read, in relevant part, as follows:


                  In this case, if you find from the evidence that the defendant was
                  confronted with a sudden emergency in the sliding of the vehicle
                  and that the defendant then pursued a course of action that an
                  ordinarily prudent person would have pursued when confronted
                  with the same or similar emergency, then you may not assess
                  negligence to the defendant.


       Lovings, 799 N.E.2d at 78. In both cases, we held that instruction to be

       prejudicial to the substantial rights of the plaintiff because it precluded the jury

       from assessing fault to the defendant regardless of his/her possible negligence

       leading up to the alleged emergency, and it did not inform the jury that the

       defendant had the burden of proving a sudden emergency. Collins, 831 N.E.2d

       at 250; Lovings, 799 N.E.2d at 79.


[20]   Unlike the instructions in Collins and Lovings, the instruction in the instant case,

       which was the pattern jury instruction on sudden emergency, 4 did require that




       4
           Ind. Model Civ. Jury Inst. 931 states:

       [Plaintiff][Defendant] claims [he][she] was not at fault because [he][she] acted with reasonable care in an
       emergency situation. [Plaintiff][Defendant] was not at fault if [he][she] proves the following by the greater
       weight of the evidence:
       (1) [he][she] was faced with a sudden emergency;
       (2) [he][she] did not cause the emergency;
       (3) [he][she] did not have enough time to consider [his][her] options; and

       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018                            Page 13 of 16
the jury make a determination as to whether or not Hites’s negligent action

caused the alleged emergency. 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); 5 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.6 Taylor, 439 N.E.2d




(4) [he][she] acted as a reasonably careful person would act when facing a similar emergency, even if a
different course of action might later seem to have been a better choice.
5
  Given the overlap between a sudden emergency instruction and standard negligence instructions, it is
difficult to ascertain the usefulness and necessity of the sudden emergency instruction. We note that,
although our Supreme Court has so far declined to express an opinion regarding the desirability of the
instruction, Willis, 839 N.E.2d at 1186 n.4, other states have abolished the instruction on grounds that may
be applicable here. See, e.g., Bedor v. Johnson, 292 P.3d 924, 928-30 (Colo. 2013) (abolishing the instruction
due to its minimal utility and potential to mislead the jury). We believe that Indiana’s pattern sudden
emergency instruction, while an accurate statement of the law that requires the jury to consider the
defendant’s actions leading up to the alleged emergency, nevertheless suffers from the potential to mislead the
jury into applying a reduced standard of care and/or unduly focusing its attention on the defendant’s actions
during and after the emergency rather than on the totality of the circumstances. Id. And we believe that the
sudden emergency instruction is unnecessary as the “rule requiring reasonable care is sufficient to take into
consideration the excitement and confusion which normally accompany the emergency situation.” Knapp v.
Stanford, 392 So.2d 196, 199 (Miss. 1980) (citation and quotation omitted). However, pursuant to the
doctrine of stare decisis, the sudden emergency doctrine is still applicable in Indiana. See Willis, 839 N.E.2d at
1186; Compton, 561 N.E.2d at 807.
6
  See, e.g., Estate of Dyer v. Doyle, 870 N.E.2d 573, 584 (Ind. Ct. App. 2007) (holding giving of sudden
emergency instruction reversible error where trial court also erroneously allowed evidence of “faked left
syndrome” upon which alleged emergency was based), trans. denied.

Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018                             Page 14 of 16
       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.”).


[21]   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.”).


       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018   Page 15 of 16
                                                Conclusion
[22]   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.


[23]   Reversed and remanded for a new trial.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 44A03-1710-CT-2459 | May 18, 2018   Page 16 of 16
