Reversal: COA finds key evidence excluded in fatal crash case involving motorcyclist, state police

The estate of a motorcyclist who was killed after colliding with an Indiana State Police vehicle while exiting an Indiana tollbooth faced a reversal after the Court of Appeals of Indiana concluded evidence of his high-speed chase with police just before the fatal accident was wrongly excluded from trial.

While driving his motorcycle on Interstate 90, 28-year-old Michael Damore crashed into an ISP patrol car after exiting the Portage Toll Plaza in July 2016.

The ISP trooper was making a U-turn into westbound traffic after conducting a stop in the eastbound lane when his vehicle struck the motorcyclist, who had accelerated between two cars once he left the tollbooth. Damore was thrown from his bike and sustained fatal injuries, prompting his estate to sue under the General Wrongful Death Statute.

Accounts of what happened differed between accident reconstruction experts for Damore’s estate and law enforcement. The estate’s expert argued that Damore’s maximum speed after exiting the tollbooth was only 43 miles per hour, that based on the timing of trooper’s U-turn, the motorcyclist had insufficient perception-reaction time to avoid the collision, and that Damore’s speed was, therefore, not a contributing factor to the accident.

The defendants’ expert, Kevin Johnson, opined that Damore had been following the car ahead of him too closely and that the motorcyclist was driving nearly 80 mph at the moment of the collision.

Evidence regarding Damore’s driving behavior in the minutes prior to the accident, including his act of fleeing from the police at high speeds before reaching the Portage tollbooth, was not introduced after the Lake Superior Court granted the estate’s related motion in limine.

A jury found in favor of the estate and awarded $4 million in damages, and the trial court entered judgment accordingly. It later denied in part and granted in part the defendants’ subsequent motion to correct error, reducing the judgment to $700,000 under the Indiana Tort Claims Act, plus costs.

In reversing in Indiana State Police and State of Indiana v. The Estate of Michael M. Damore, 21A-CT-2536, the COA found that the trial court abused its discretion to the extent that it concluded Indiana Evidence Rule 403 required exclusion of evidence regarding how Damore was driving in the minutes prior to the accident.

Evidence showing that Damore had recently been in a high-speed chase with the police and drove significantly over the speed limit before reaching the Portage tollbooth was relevant, the court explained.

“That is, evidence that Michael was fleeing from police and was driving unsafely in the minutes prior to the collision tends to make it more probable that he drove his motorcycle in an unsafe manner to allude police after he exited the Portage tollbooth. And Michael’s driving was clearly of consequence in the action, because any negligence on his part that contributed even slightly to the accident would bar recovery by the Estate,” Judge Elizabeth Tavitas wrote.

Citing its previous decision in Wages v. State, 863 N.E.2d 408 (Ind. Ct. App. 2007), the appellate court concluded that evidence of a motorist’s driving behavior immediately before the accident is relevant to the issue of whether the driver acted recklessly — or, in the present case, merely negligently.

“The contrary position, taken to its logical conclusion, would mean that only the driver’s final driving maneuver was relevant to whether the driver contributed to the accident,” Tavitas wrote. “We rejected this reasoning in Wages and see no reason to deviate from our holding in Wages now.”

Judges further disagreed with the estate’s assertion that the evidence of Damore’s driving before he approached the Portage tollbooth, even if relevant, was unfairly prejudicial.

Addressing the trial court’s sanction and striking of the defendants’ only expert testimony, the COA noted that although the expert violated the order granting the estate’s motion in limine, it failed to see how the estate was harmed by “this brief, one-time mention” of the motion “with no discussion of the prohibited evidence.”

“At most, Johnson’s violation of the motion in limine was brief and harmless. Under these facts and circumstances, excluding the entirety of Johnson’s testimony was overly severe,” Tavitas wrote, noting that Johnson was the defendants’ only witness and the trial court’s sanction essentially deprived them of their defense.

The COA also found that the trial court abused its discretion by failing to give two of the defendants’ proposed jury instructions: one about Damore following too closely to the vehicle in front of him, contrary to Indiana Code § 9-21-8-14, and the other concerning the substance of passing on the right under I.C. 9-21-8-6.

“Under these facts and circumstances, we cannot say that the failure to give these instructions was harmless, i.e., that the verdict would have been the same under the proper instructions,” Tavitas wrote.

Finally, the appellate court wrote that the estate did not provide sufficient evidence to prove that Damore’s mother was his dependent. It noted that although he made $100 to $200 monthly payments to his mother while living in her home, those payments were a “mere fraction of his monthly income of $5,833.”

“Because Denise was not a dependent next of kin, she cannot recover under the GWDS, and the Estate’s recovery must be limited to reasonable medical, hospital, funeral and burial expenses, plus no more than $300,000 for loss of love and companionship pursuant to the AWDS,” the court concluded. “Accordingly, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.”