A trial court did not err in denying a pedestrian’s motion to compel cellphone evidence in his suit against the woman who struck him with her car, the Court of Appeals of Indiana affirmed.
In December 2019, Jessica Smiley was driving on Westfield Boulevard near Wood Valley Drive in Carmel when she struck Charles Jennings, who was walking across Westfield Boulevard. Smiley claimed she was unable to see Jennings because he stepped out from behind a box truck, which blocked her view.
In February 2020, Jennings sued Smiley, alleging she was negligent when she failed to use due care while driving, maintain a proper lookout, yield the right of way to pedestrians, and control her vehicle to avoid striking a pedestrian.
Smiley in response claimed Jennings had been contributorily negligent.
In February 2021, Jennings requested production of Smiley’s phone for inspection. A month later, Jennings moved to compel discovery of Smiley’s phone data to determine whether the navigation application Waze had been running at the time of the incident.
Jennings explained that the request arose after an accident reconstructionist generated a report that found “Smiley was inattentive and/or distracted” while driving. Also, Smiley testified that she had been using Waze earlier in the day, but not while she was driving.
The Hamilton Superior Court granted Jennings’ motion to compel.
But Smiley filed a petition to reconsider, citing privacy concerns, and the trial court subsequently denied Jennings’ motion to compel because “it had drastically misconstrued a piece of evidence which was central to its decision to grant [Jennings]’s motion.”
At an ensuing jury trial, investigating officers testified that Jennings had not crossed at an intersection, nor was there a crosswalk, yield sign, stop sign or pedestrian crossing sign, and the accident happened at rush hour on a busy road. The officers also testified there was no evidence that Smiley was distracted, speeding or driving recklessly.
Additionally, Jennings’ accident reconstruction expert admitted that Smiley could not have seen Jennings before the oncoming truck had passed him because she would have been too far down the road.
The jury ultimately found Jennings had been 90% at fault and Smiley at 10% at fault, and the trial court entered judgment in favor of Smiley.
On appeal, Jennings argued the trial court’s refusal to allow telephone inspection constituted reversible error. However, the appellate court disagreed.
“Based on the record before us, we conclude that the burden of Jennings’s proposed telephone inspection outweighs its likely benefit in light of Smiley’s significant privacy concerns,” Judge Cale Bradford wrote.
Bradford noted that in the past, the COA has ruled that searching the data of a modern cellphone is intrusive, so Jennings would’ve had to provide strong indicators that Smiley had been using her phone at the time of the accident.
“Without sufficient indicators that Smiley was using her cellular telephone at the time of the accident, we cannot say that the trial court abused its discretion in denying Jennings’s discovery request,” Bradford wrote.
The case is Charles Jennings v. Jessica A. Smiley and Progressive Southeastern Insurance Company, 23A-CT-303.
This article was first published in The Indiana Lawyer.