OmniSource Corporation v. Linda K. Fuller and Greg Fuller (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Dec 29 2015, 8:25 am
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 APPELLANT ATTORNEYS FOR APPELLEE
Jason A. Scheele Dean J. Arnold
Andrew L. Palmison Ken Nunn Law Office
Fort Wayne, Indiana Bloomington, Indiana
Bryan H. Babb
Bose McKinney & Evans, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
OmniSource Corporation, December 29, 2015
Appellant-Defendant, Court of Appeals Case No.
27A02-1407-CT-476
v. Appeal from the Grant Circuit Court
Trial Court Cause No.
Linda K. Fuller and Greg Fuller, 27C01-1203-CT-220
The Honorable Mark E. Spitzer,
Appellees-Plaintiffs.
Judge
Pyle, Judge.
[1] OmniSource Corporation (“OmniSource”) appeals the denial of its motion for
judgment on the evidence during the trial of Linda and Greg Fuller’s
(collectively “the Fullers”) negligence claim. On appeal, OmniSource argues
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that the Fullers’ evidence supporting their claim was speculative and therefore
insufficient to survive its motion for judgment on the evidence. Finding that the
evidence was reasonably open to more than one interpretation, we conclude
that the trial court did not err in denying the motion and sending the case to the
jury.
[2] We affirm.
Issue
Whether the trial court erred in denying OmniSource’s
motion for judgment on the evidence.
Facts
[3] OmniSource is a processor of scrap and secondary metals and operates a metal
scrapyard in Grant County, Indiana. Kenny Merritt (“Merritt”) is an
OmniSource employee and works as a certified crane operator. Merritt was
operating a crane at the scrapyard on March 29, 2011, and the Fullers brought
metal to OmniSource that day, as they regularly gather scrap metal as a means
of supporting themselves.
[4] The Fullers parked their truck in the area of Merritt’s crane and began
unloading their materials. Greg was in the bed of the truck passing materials to
Linda, who then placed them in a pile behind the truck. Meanwhile, Merritt
had finished unloading materials for another customer. When he swung the
boom of his crane around, he saw the Fullers and the pile of materials they had
unloaded from their truck.
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[5] Merritt began moving items from the Fullers’ pile. Merritt picked up a bumper
with the boom and began dragging it away from the pile. While Merritt was
moving the bumper, it came into contact with Linda, and she fell to the ground.
Greg yelled to Merritt that he had hit Linda, and Merritt exited the cab of the
crane to check on her. Linda stated that her knee hurt but that she felt okay.
Merritt asked her if she needed an ambulance, and she said no.
[6] The next day, the pain in Linda’s knee worsened, and she and Greg went to the
emergency room. Linda eventually sought treatment from Dr. Salil Rajmaira
(“Dr. Rajmaira”), and he diagnosed her with a meniscus tear in her right knee.
While tests revealed pre-existing degenerative changes in the knee, Dr.
Rajmaira found that the tear was consistent with trauma to the knee.
[7] On March 30, 2012, the Fullers, by counsel, filed a complaint alleging that
Linda had suffered injury and that Greg had suffered loss of services,
companionship, society, and consortium due to OmniSource’s negligence. The
case was tried to a jury on June 9 and 10, 2014.
[8] At trial, Merritt acknowledged that the Fullers were within ten feet of the boom
of his crane and that part of the load he was moving came into contact with
Linda. He also said that he should have had the Fullers move out of the area
where the boom of his crane was operating. Mike McIntire (“McIntire”), the
OmniSource plant manager, acknowledged during a deposition that if a
customer were within twenty-five feet of the crane, the operator should set the
magnet on the boom down “and motion for the person to remove themselves
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from that area.” (Tr. 106). Linda testified that there was a loud noise, the truck
moved, and she fell to the ground. While she stated that she did not know what
had happened, Greg testified that he saw the metal on the crane’s boom hit
Linda’s arm, causing her to fall to the ground.
[9] At the close of the Fullers’ case-in-chief, OmniSource moved for judgment on
the evidence, arguing that the Fullers had not established what had caused
Linda to fall and suffer an injury. After hearing arguments and considering
cases cited by the parties, the trial court ruled on the motion as follows:
We have the testimony of Mr. Merritt[,] who indicated that he
did, in some form or fashion, come [into] contact with the
Plaintiff. Now, he testified he didn’t see the Plaintiff fall[.]
[H]owever, the Plaintiffs testified that . . . Mrs. Fuller did fall as a
result of some contact that occurred. Certainly, there’s going to
be a need for the jury to reconcile the testimony of the[]different
witnesses. Somebody [has] either perceived something . . .
differently or frankly somebody’s not telling the truth. However,
given the evidence, the jury could conclude that there was a
contact with Mrs. Fuller from the testimony of Mr. Merritt. [The
jury] [c]ould conclude from the testimony of the Fullers that that
contact caused Mrs. Fuller to fall. [The jury] [c]ould conclude
from the testimony of Mrs. Fuller that that fall resulted in the
injury to the[]knee [and resulted] in damages and so, using the
standard that the Court is required to apply, which is[]there
[being] some evidence[]where the jury could draw a conclusion
that there was negligence here. Looking at the elements of the
case, looking at the evidence here, notwithstanding the fact that it
could certainly be and probably will be argued a different way by
counsel and could ultimately, a different decision could be made
by the jury. The question is whether they could draw those
inferences in favor of Mrs. Fuller and Mr. Fuller and find that the
Defendant was negligent and there were damages resulting from
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that negligence[.] The Court is finding that that could happen no
matter how, sort of, no matter how we might argue as to whether
the jury would have to sort of selectively stretch things from one
testimony to the other in order to reach that conclusion. There
certainly is evidence in the record which if the proper inferences
are drawn could result in a finding of negligence. Not saying that
it necessarily will [will happen], but could they do it, they
certainly could. So Court finds this is a case that should go to the
jury and so denies the motion for judgment on the evidence.
(Tr. 237-238). OmniSource presented no other evidence, and the jury found in
favor of Linda for her negligence claim, assigning eighty percent (80%) fault to
OmniSource and twenty percent (20%) fault to the Fullers. The jury found in
favor of OmniSource for Greg’s claims. OmniSource now appeals.
Decision
[10] OmniSource appeals the denial of its motion for judgment on the evidence
during the trial of the Fullers’ complaint.
[11] On appeal, we apply the following standard of review to a trial court’s ruling on
a motion for judgment on the evidence:
It is axiomatic that in reviewing the trial court’s ruling on a
motion for judgment of the evidence[,] the reviewing court must
consider only the evidence and reasonable inferences most favorable to the
nonmoving party. Judgment on the evidence in favor of the
defendant is proper when there is an absence of evidence or
reasonable inferences in favor of the plaintiff upon an issue in
question. The evidence must support without conflict only one
inference which is in favor of [the] defendant. If there is any
probative evidence or reasonable inference to be drawn from the
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evidence or if there is evidence allowing reasonable people to
differ as to the result, judgment on the evidence is improper.
Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1051 (Ind. 2003)
(emphasis in original) (internal citations omitted).
[12] OmniSource argues that its motion for judgment on the evidence should have
been granted because there was no proof that any act or omission on its part
caused Linda to fall. A negligent act is said to be the proximate cause of an
injury “if the injury is a natural and probable consequence, which in light of the
circumstances, should have been foreseen or anticipated.” Id. at 1055 (quoting
Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000)). At a minimum,
proximate cause requires that the injury would not have occurred but for the
defendant’s conduct. Id.
[13] Here, the evidence most favorable to the Fullers was that Greg saw the metal
on the crane’s boom hit Linda’s arm, and she fell. Merritt testified that a
bumper he was dragging on the crane’s magnet hit Linda. He then exited the
crane to see if she was okay. Finally, both Merritt and McIntire acknowledged
that the magnet on the boom of the crane should have been set down until the
Fullers cleared the area.
[14] Nevertheless, OmniSource argues that it is unreasonable to infer from the
above-mentioned evidence that any act on its part caused Linda to fall.
OmniSource relies on the facts in our decision in Hayden v. Paragon Steakhouse,
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731 N.E.2d 456 (Ind. Ct. App. 2000) to essentially argue that Greg’s testimony
was speculation as to what had occurred instead of evidence to be weighed by
the jury. However, we distinguish the facts in Hayden from those before us
now.
[15] In Hayden, we recognized that an inference is not reasonable when it rests on no
more than speculation or conjecture, and we affirmed the trial court’s grant of
summary judgment because the designated evidence “clearly revealed that [the
plaintiff] did not know what caused his fall.” Hayden, 731 N.E.2d at 458.
Although the plaintiff’s complaint alleged that he fell on snow and ice, the
plaintiff testified in his deposition that he did not see any snow where he fell
and did not know whether there was ice in the area. Id. Plaintiff also testified
to his “belief” that he slipped on ice and that he suspected he slipped on
something. Id. There were no witnesses to the plaintiff’s fall, and he stated that
he did not recall the pavement being slippery prior to his fall. We reasoned that
“without any evidence on how or why [the plaintiff] fell, the [plaintiff] was
relying on speculation and conjecture to explain the proximate cause of his
injuries.” Id. at 458-59.
[16] Here, Greg testified that metal connected to the crane’s boom struck Linda.
OmniSource argues that Greg’s “testimony and vantage point make clear that
he was not in a position to see whether any contact with the crane or any
portion thereof is what caused [Linda] to fall.” (OmniSource’s Br. 19).
However, considering the evidence most favorable to the Fullers, when
OmniSource’s attorney directly confronted Greg with this point on cross-
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examination, he again stated that he saw metal come into contact with his wife.
(Tr. 193). Greg was adamant that his wife fell after being struck by the metal;
there was no reservation in his testimony. We find that any dispute about
Greg’s testimony is a question of weighing credibility, which is a matter
reserved for the fact-finder and not appropriate for judgment on the evidence.
Hartford Steam Boiler Inspection and Ins. Co. v. White, 775 N.E.2d 1128, 1143 (Ind.
Ct. App. 2002), trans. denied.
[17] Moreover, even if we were to treat Greg’s testimony as we treated the evidence
in Hayden, there was other evidence presented, namely the testimony of Merritt
and McIntire, that allowed for the reasonable inference that Linda would have
never been struck by metal on the crane’s boom but for Merritt operating the
crane in the area of the Fullers. See Bartolini, 799 N.E.2d at 1055. Thus, the
evidence met the minimum for showing proximate cause. See, e.g., id.
[18] The trial court properly recognized that reasonable jurors could come to
different conclusions regarding the evidence. Indeed, the jury apportioned
some fault to the Fullers and found for OmniSource on Greg’s claims.
Accordingly, the trial court did not err in denying OmniSource’s motion for
judgment on the evidence.
[19] Affirmed.
Crone, J., and Brown, J., concur.
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