Hockema v. J.S.

832 N.E.2d 537 (2005)

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Nature of the Case

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Facts

D was driving and eight-year-old P darted out into the road and collided with D's vehicle. P's nine-year-old sister, Erica Secrest, witnessed the collision, and Jacob's mother, Merri Secrest, came running out of her parents' house to assist Jacob immediately after the collision. P was transported to the hospital by ambulance with his mother accompanying him. As a result of the impact, P broke his right elbow and collarbone, which required him to undergo surgery and attend physical therapy. Ps sued Ds seeking recovery for medical expenses; permanent injuries; emotional distress; loss of services; and pain and suffering. The parties stipulated that P's medical expenses totaled $38,708.44. The judge instructed the jury: ...If however, you find there is fault on behalf of D, you are required to apportion the fault on a percentage basis between P and D to determine whether the Plaintiffs are entitled to recover damages, and if so, the amount of such recovery. You may not apportion fault to any other person or entity. First, you must determine the percentage of fault, if any, of P in the proximate causation of the Ps' injuries and damages. These percentages must total 100 percent. If you find D is at fault and P's fault is greater than 50 percent, then you must return your verdict for D and against P. No further deliberation is required. If you find that P's fault is 50 percent or less, then you must determine the total amount of damages P is entitled to recover, if any, without regard to fault. Then you must multiply Jacob Secrest's total damages by D's percentage of fault and return your verdict for P and against Ds in the amount of the product of that multiplication. If you find that P is at fault at all, [then] you must also determine the total amount of damages Ps are each entitled to recover, if any, without regard to fault. Then you must multiply P's total damages by D's percentage of fault and return your verdicts for each of Ps and against Ds in the amount of the product of that multiplication. D objected to the verdict instructions for the purely derivative claims of Eric, Merri, and Erica Secrest, to survive, even though the jury would determine that P was fifty-one percent [or] more at fault. The trial court overruled the objection. The jury found P to be 66.75% at fault, D to be 33.25% at fault, and awarded the P $0 in damages. On Ps' motion, the trial court entered judgment in favor of Ps for $12,780.56, which is 33.25% of the stipulated amount of medical expenses. The Court had previously instructed the Jury that the parent's right to recovery for their medical expenses was not contingent on the child's right to recovery for his injuries. Ds appealed.