Elizabeth Gresser, Individually, John Gresser and Janice Gresser Individually and as Parents and Natural Guardians of Rebekah Gresser v. Reliable Exterminators, Inc. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 25 2020, 9:35 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Roger L. Pardieck Maggie L. Smith
Karen M. Davis Darren A. Craig
The Pardieck Law Firm Frost Brown Todd LLC
Seymour, Indiana Indianapolis, Indiana
Michael J. Stapleton
Brian A. Karle
Ball Eggleston, PC
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elizabeth Gresser, Individually, September 25, 2020
John Gresser and Janice Gresser Court of Appeals Case No.
Individually and as Parents and 79A05-1711-CT-2621
Natural Guardians of Rebekah Appeal from the Tippecanoe
Gresser, Superior Court
Appellants-Plaintiffs, The Honorable Robert M. Hall,
Special Judge
v. Trial Court Cause No.
79D01-0403-CT-25
Reliable Exterminators, Inc.,
Appellee-Defendant
May, Judge.
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[1] Elizabeth Gresser, her parents John and Janice, individually and as parents and
natural guardians of Rebekah Gresser, (collectively, “the Gressers”) appeal the
trial court’s denial of their motion to correct error following a jury verdict in
favor of Reliable Exterminators, Inc. (“Reliable”). The Gressers present two
issues, which we consolidate and restate as whether the trial court abused its
discretion in denying the Gressers’ motion to correct error, which asked the
court to reconsider its denial of the Gressers’ request for a jury instruction
delineating statutes related to pesticide application. Finding no abuse of
discretion, we affirm.
Facts and Procedural History
[2] On January 31, 2000, Robert Hanstra, the owner of Reliable Exterminators,
Inc. (“Reliable”), inspected a vacant house (hereinafter “the House”) at the
request of a realty firm. On February 11, 2000, a Reliable termiticide
technician, David Neal, treated the House using a Dursban TC solution
(hereinafter “Dursban”). While Dursban was approved by the Environmental
Protection Agency (“EPA”) for residential use at the time, it contains a
neurotoxin, chlorpyrifos, and has a distinct odor to warn of chlorpyrifos in the
air. Dursban came with extensive instructions for proper usage because it
should not be allowed to seep into a house or be blown into living spaces
through air ducts. Neal, however, did not follow the instructions on the
Dursban label that required applicators to have an assistant watch for leaks
during application, seal basement wall cracks before use, turn the furnace off
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prior to application, examine ductwork and fix leaks, as necessary, and lay
down a plastic vapor barrier after spraying in crawl spaces.
[3] The Gressers bought the House in May 2001. They noticed an odor in the
House prior to purchase, but they were assured it was only because the House
had been closed up for a period of time. Elizabeth and Rebekah, who both
were under five years old at the time, exhibited “unremitting flu-like symptoms,
excessive secretions, ear infections, vomiting, diarrhea, fatigue, rashes, and
other problems” while the family lived in the house. (Br. of Appellant at 21
(citing Tr. Vol. 9 at 131-36, Vol. 3 at 141, 143, 149, 152-62, 165-68, & Vol. 11 at
199-202).) The odor in the House never subsided, and the Gressers vacated the
House in June 2002. The Gressers contacted, amongst others, the EPA and the
Indiana State Chemist’s Office (“ISC”) to determine whether the House
contained dangerous substances. Tests revealed varying levels of chlorpyrifos
throughout the House.
[4] In March 2004, the Gressers filed a complaint against Reliable for negligent
application of Dursban to the House and alleged the Reliable caused injuries to
their daughters. Reliable filed a motion for summary judgment, which the trial
court denied. On appeal following the summary judgment ruling, the Court of
Appeals held, in relevant part, that the trial court correctly denied Reliable’s
motion to exclude testimony from the Gressers’ expert witness; that the Federal
Insecticide Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. sec.
136j(a)(2)(G), did not preempt the Gressers’ claims against Reliable; that
Reliable owed the Gressers a common-law duty to warn them of the Dursban
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application; and that the Gressers’ access to punitive damages was a question of
fact for trial. Gresser v. Dow Chemical Co., Inc., 989 N.E.2d 339 (Ind. Ct. App.
2013), reh’g denied, trans. denied.
[5] On April 7, 2015, the Gressers filed an amended complaint that alleged Reliable
was negligent both in its application of Dursban and in its failure to warn the
Gressers of the “nature of the product.” (Appellants’ App. Vol. II at 71.) The
trial court scheduled a jury trial for May 15, 2017. On April 11, 2017, the
Gressers filed proposed final jury instructions that included an instruction to
inform the jury of the legal impact of violating FIFRA:
When the events in this case happened, a federal statute, 7 U.S.C
sec. 136j(a)2)(G) [sic] of the Federal Insecticide, Fungicide and
Rodenticide Act provided as follows:
Sec. 136j. Unlawful acts.
(a) In general.
(2) It shall be unlawful for any person –
(G) to use any registered pesticide in a manner
inconsistent with its labeling.
If you find from the greater weight of the evidence that person or
company violated U.S.C. sec. 136j(a)(2)(G) on the occasion in
question and that the violation was not excused, then you must
decide that person or company was negligent.
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Compliance with the statute, however, does not prevent a finding
of negligence where a reasonable person or company would take
additional precautions.
(Id. at 194.) Reliable did not object to that proposed instruction before trial.
[6] The trial court conducted a jury trial from May 15, 2017, to June 15, 2017.
Elizabeth and Rebekah, who were nineteen and sixteen, respectively, at the
time, testified at trial. On June 14, 2017, as trial ended, the Gressers requested
a final jury instruction to explain the legal impact of violating Indiana’s
pesticide use statute, Indiana Code section 15-3-3.6-14:
When the events in this case happened, Indiana Code Section 15-
3-3.6-14 provided in part as follows:
It is a violation for a pest control company to do the following:
1) Recommend, use or supervise the use of any registered
pesticide in a manner inconsistent with its labeling approved by
the United States Environmental Protection Agency or Indiana
State registration for that pesticide; or
2) Operate in a careless or negligent manner; or
3) Use a restricted pesticide without having a licensed applicator
or a licensed certified operator in direct supervision.
If you decide from the greater weight of the evidence that a
company violated Indiana Code Section 15-3-3.6-14, then you
must decide that the person and/or company was negligent.
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Compliance with the statute, however, does not prevent a finding
of negligence where a reasonable company would take additional
precautions.
(Id. at 79.) Reliable objected to the Gressers’ proposed instructions. After
hearing argument, the trial court determined it would not give jury instructions
based on the statutory language, but it would permit the Gressers to argue that
Reliable’s violation of the statutory requirements demonstrated Reliable had
breached its common-law duty to the Gressers. The Gressers so argued in
closing arguments. The jury found in favor of Reliable, and the trial court
entered judgment thereon.
[7] The Gressers filed a motion to correct error and request for a new trial that
asserted the trial court erred by not giving a jury instruction based on either the
state or federal statute. The parties appeared for a hearing on the Gressers’
motion, after which the court denied the motion in an order that found: “The
court has examined the instructions as tendered and considered the totality of
the circumstances and evidence presented and finds that the pending Motion
should be denied.” (Id. at 65.)
Discussion and Decision
[8] Because a number of arguments herein are based on the parties’ divergent
understandings of “negligence per se,” we begin our analysis with clarification of
that term under Indiana law. Generally speaking, “the unexcused violation of a
statute or ordinance constitutes negligence per se if the provision (1) ‘protects the
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class of persons in which the plaintiff is included’ and (2) ‘protects against the
type of harm [that] has occurred as a result of the violation.’” Stachowski v.
Estate of Radman, 95 N.E.3d 542, 544 (Ind. Ct. App. 2018) (quoting City of Fort
Wayne v. Parrish, 32 N.E.3d 275, 277 (Ind. Ct. App. 2015), trans. denied).
[9] Be that as it may, to succeed in a negligence action, a plaintiff still must
demonstrate three elements: (1) the defendant owed a duty to the plaintiff; (2)
the defendant breached that duty; and (3) the breach proximately caused the
plaintiff’s injuries, id., and “the doctrine of negligence per se doesn’t concern the
duty element of a negligence action.” Id. (emphasis added).
“In a negligence per se action, the statute [or ordinance] supplies a
defendant’s standard of care—the second element in a tort claim.
The negligence per se defendant already owes a duty to use
reasonable care without reliance on the statute [or ordinance].”
F.D. v. Ind. Dep’t of Child Servs., 1 N.E.3d 131, 143 n.12 (Ind.
2013) (Rush, J., dissenting) (citing 1 Dan B. Dobbs et al., The
Law of Torts § 148 (2d ed. 2011) (explaining that negligence-per-
se defendant “must be under a duty to use reasonable care; if he is
not, violation of the statute cannot prove breach of duty”) and
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 38 cmt. d (2012) (explaining that negligence-
per-se defendant is subject to duty of reasonable care “even
without reliance on the statute”)). In short, a plaintiff cannot rely
on the doctrine of negligence per se to satisfy the duty element of
a negligence claim.
Id. at 544-45 (emphases added).
[10] Rather, to satisfy the duty element of a negligence claim, a plaintiff must
demonstrate that a defendant had a duty toward the plaintiff that arose either at
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common law or by statute. Id. at 543. If a defendant had an existing common-
law duty of reasonable care, and if a plaintiff argues the defendant’s violation of
a statute or ordinance proves the breach of that existing common-law duty, then
the plaintiff has been said to be raising a negligence-per-se claim. Id. If, instead,
the defendant had no common law duty and the plaintiff asserts a statute or
ordinance created duty enforceable by plaintiff against defendant, then the
plaintiff is said to be raising a private-right-of-action claim. 1 Id.
[11] As then-Chief Judge Vaidik noted in 2018, these two forms of tort claim are
often confused, id., and we have little doubt why this confusion arises – a single
term has evolved to have two distinct meanings within the same area of the law.
“Negligence per se” means both: (1) “the unexcused violation of a statute or
ordinance[,]” Stachowski, 95 N.E.3d at 544, which is a doctrine for proving
breach; and (2) a type of tort claim in which (a) the defendant had a common-
law duty of reasonable care toward the plaintiff, and (b) the violation of a
1
“When a plaintiff claims that the violation of a statute or ordinance gives rise to civil liability even in the
absence of a common-law duty, the issue should be framed as whether the statute or ordinance confers a
‘private right of action’[.]” Stachowski, 95 N.E.3d at 545. For a plaintiff to have a private right of action to
sue a defendant for alleged violation of a statute, the plaintiff must demonstrate the legislature that passed the
statute “intended to establish not just a standard of conduct but a duty enforceable by tort law.” Id. To
determine whether the legislature intended to create a duty enforceable by private tort action, we look first to
see if the statute creates “an express right of action.” Id. Absent an express right provided in the statute, we
consider: “(1) whether the statute or ordinance was designed to protect particular individuals or the public in
general and (2) whether it includes an independent enforcement mechanism.” Id.
A private party may not usually enforce rights under a statute designed to protect the public in
general and which contains an enforcement provision. When a statute limits a thing to be done in a
particular mode, it includes the negative of any other mode. Whether a statute creates a private
right of action is a question of law for the court.
Howard Regional Health System v. Gordon, 952 N.E.2d 182, 187 (Ind. 2011) (internal citations and quotation
omitted).
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statute or ordinance is asserted to demonstrate the defendant’s failure to use the
reasonable care required by the common-law duty. Id. at 544-45. Having these
two distinct meanings of “negligence per se” would not be a problem were it not
for the fact that “the unexcused violation of a statute or ordinance” would also
demonstrate breach of a defendant’s statutory duty in a private-right-of-action
claim. Because negligence per se can demonstrate breach of both a common-law
duty and a statutory duty, a tort action based on one of those origins of duty
ought not be called a negligence-per-se claim.
[12] To eliminate confusion throughout the remainder of this opinion, we will use
“negligence per se” only when referring to the doctrine of demonstrating breach
of duty by evidence a defendant violated a statute. We will refer to the tort
claims themselves as being either a “Statutory-Duty Claim” or a “Common-
Law-Duty Claim.” With this clarification in mind, we turn to the
disagreements between the parties herein.
Jury Instruction
[13] Instructing the jury is a matter assigned to the sound discretion of the trial
court. Burdick v. Romano, 148 N.E.3d 335, 340 (Ind. Ct. App. 2020). We
review the court’s decision only for abuse of discretion. Humphrey v. Tuck, 132
N.E.3d 512, 515 (Ind. Ct. App. 2019). In this case, we also consider that the
trial court was presented with these arguments again following trial, by way of
the Gressers’ motion to correct error and for a new trial, which the trial court
denied. We review a denial of a motion for new trial presented by a Trial Rule
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59 motion to correct error for an abuse of discretion. Otter Creek Trading Co.,
Inc. v. PCM Enviro PTY, LTD, 60 N.E.3d 217, 226 (Ind. Ct. App. 2016), reh’g
denied, trans. denied.
A trial court has abused its discretion only if its decision is clearly
against the logic and effect of the facts and circumstances before
the court or of the reasonable inferences therefrom. The trial
court’s decision comes to us cloaked in a presumption of
correctness, and the appellant has the burden of proving that the
trial court abused its discretion. In making our determination,
we may neither reweigh the evidence nor judge the credibility of
witnesses. Instead, we look at the record to determine if: “(a) the
trial court abused its judicial discretion; (b) a flagrant injustice
has been done to the appellant; or (c) a very strong case for relief
from the trial court’s order has been made by the appellant.
Id. (quoting Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656,
658 (Ind. Ct. App. 2001)).
[14] When we review a trial court’s refusal of a tendered instruction, we consider: 1)
whether the tendered instruction is a correct statement of the law; 2) whether
there is evidence in the record to support the instruction; and 3) whether the
substance of the instruction is covered by other instructions given by the court.
Id. Jury instructions are intended to inform the jury of the law applicable to the
facts without misleading the jury and to enable the jury to comprehend the case
clearly and arrive at a just, fair and correct verdict. Centennial Mortgage, Inc. v.
Blumenfeld, 745 N.E.2d 268, 278 (Ind. Ct. App. 2001). Accordingly, a trial
court properly rejects an instruction that would “mislead or confuse the jury.”
Burdick, 148 N.E.3d at 340.
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[15] The Gressers argue on appeal that the trial court erred by not giving at least one
of their two proposed jury instructions, which were based on a federal statute
and an Indiana statute. At the end of trial, however, as counsel argued about
proposed final jury instructions, counsel for the Gressers repeatedly indicated
she was arguing for an instruction that stated the Indiana statute “instead” of
the federal law. (Tr. Vol. 18 at 134.) (See also id. at 174 (Gressers’ counsel says,
“Plaintiffs have asked instead for our proposed final instruction No. 2 that was
filed this morning, which is just the Indiana code instead of using the federal
code.”).) Because the Gressers only argued for the Indiana Code instruction,
we will review only the trial court’s refusal to give that instruction. See Swan
Lake Holdings, LLC v. Hiles, 888 N.E.2d 265, 272-73 (Ind. Ct. App. 2008)
(holding jury instruction error waived because objection raised on appeal was
different from objection raised at trial).
[16] The Gressers tendered the following proposed jury instruction based on state
law:
When the events in this case happened, Indiana Code Section 15-
3-3.6-14 provided in part as follows:
It is a violation for a pest control company to do the following:
1) Recommend, use or supervise the use of any registered
pesticide in a manner inconsistent with its labeling approved by
the United States Environmental Protection Agency or Indiana
State registration for that pesticide; or
2) Operate in a careless or negligent manner; or
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3) Use a restricted pesticide without having a licensed applicator
or a licensed certified operator in direct supervision.
If you decide from the greater weight of the evidence that a
company violated Indiana Code Section 15-3-3.6-14, then you
must decide that the person and/or company was negligent.
Compliance with the statute, however, does not prevent a finding
of negligence where a reasonable company would take additional
precautions.
(Appellant’s App. Vol. II at 79.)2
(1) Whether the Instruction Correctly States the Law
[17] When the Gressers requested Indiana’s statutory language be presented to the
jury as a final instruction, Reliable objected because the Gressers “did not plead
a negligent per se count [and] to put a negligence per se instruction in without
pleading a statutory count, it’s not – it’s not consistent with the law.” 3 (Tr. at
2
The Gressers note their proposed instruction was based on Indiana Model Civil Jury Instruction 327, which
states:
When the events in this case happened, [Indiana Code § __________ ][ordinance number and name]
provided [in part] as follows: [here set out applicable portions of statute or ordinance].
If you decide from the greater weight of the evidence that a person violated [Indiana Code §
__________ ][ordinance number and name], and that the violation was not excused, then you must
decide that person was negligent.
327 Violation of Statutory Duty as Fault or Negligence, Ind. Model Civ. Jury Inst. 327.
3
Despite the fact that the Gressers had not pled a “statutory count” Reliable did not object when the
Gressers’ presented evidence about the statute’s requirements and about Reliable’s acts in violation of the
statute because, as trial counsel explained, “I don’t move to strike people’s evidence because they didn’t
plead it.” (Tr. at 177.) However, the failure to object to evidence that does not conform to the pleadings
implies consent to try the issues as raised by that evidence, even if the issues were not raised in the pleadings.
See Ind. Trial Rule 15(B) (“When issue not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). And see United
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179.) As we explained above in the preliminary discussion of negligence per se,
Reliable’s argument is incorrect as a matter of law. Negligence per se can be
asserted to prove that a defendant violated a common law duty of reasonable
care. See, e.g., Cook v. Whitsell-Sherman, 796 N.E.2d 271, 275 (Ind. 2003) (court
held dog owner had common-law duty of reasonable care to prevent animal
from injuring others and Indiana Code section 15-5-12-1 imposed definition of
reasonable care when victim of bite was postal carrier). Thus, the Gressers did
not need to assert a Statutory-Duty Claim – and undertake the additional
burden of demonstrating the statute provided a private right of action, see, e.g.,
Brown v. City of Valparaiso, 67 N.E.3d 652 (Ind. Ct. App. 2016), trans. denied – in
order to assert Reliable committed negligence per se that proved breach of the
common law duty.
[18] Reliable also argues the instruction is incorrect as a matter of law because the
instruction does not contain any mention of proximate cause or responsible
cause. In response, the Gressers note the instruction about proximate cause or
responsible cause is a separate pattern jury instruction that the trial court was
already planning to give as a final instruction. (See Appellants’ App. Vol. 2 at
205 (final instruction 7, which provides three elements of tort claim); and at 210
(final instruction 12, which provides a definition of “responsible cause”).) We
Leaseshares, Inc. v. Citizens Bank & Trust Co., 470 N.E.2d 1383, 1390-91 (Ind. Ct. App. 1984) (based on
evidence presented without objection, issue tried by consent), and Homemakers Fin. Serv., Inc. v. Ellsworth, 177
Ind. App. 640, 642, 380 N.E.2d 1285, 1287 (1978) (“the issue was properly before the court by the failure of
Homemakers to object to evidence in relation thereto”), reh’g denied. Accordingly, we evaluate the Gressers’
claims as if they pled that defendants breached their common-law duty by committing statutory violations.
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agree with the Gressers that the element of responsible cause did not need to be
included in its proposed instructions for the proposed instruction to be a correct
statement of law.
[19] Next, Reliable argues the trial court properly denied the proposed instruction
because the instruction was incomplete and would mislead the jury. Reliable
argued the jury could not understand and properly apply the requested statutory
language instruction unless it was also given instructions that included the
Dursban label, (Appellants’ App. Vol. 2 at 117-125), which counsel described as
a “long, complicated, convoluted label,” (Tr. Vol. 18 at 181), and the Indiana
Administrative Code section that explained that “direct supervision” did not
mean the supervisor had to be at the treatment location overseeing the
application. (See id. at 178 (“the code describes what direct supervision is”); and
see id. at 179 (“if the Court overrules my objection, I’m going to ask that we put
in the administrative code, which explains some of the language [in] what they
gave today”).)
[20] In a related vein, Reliable argued that giving Indiana Code section 15-3-3.6-14
in the format of pattern jury instruction, see supra n.3, is not as straight-forward
as application of other statutory duties, such as those related to driving. As
Reliable asserted at trial, instructing the jury that a chemical must be applied
consistently with the label is “not an absolute clear duty. That’s not like you
can’t run a red light. [I]t does not give the jury a clear absolute standard they
have to look at.” (Tr. Vol. 18 at 183.)
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[21] If an instruction accurately reflects a statute, the trial court still does not err by
declining to give the instruction if it is not correct as to the particular case. See
Lee v. Hamilton, 841 N.E.2d 223, 230 (Ind. Ct. App. 2006) (trial court did not err
by declining to give instruction even though instruction was an accurate
reproduction of the statute). We agree with Reliable that the tendered
instruction based on the statute would have required additional clarification
instructions and that it may have confused the jury in its proposed form. 4 “The
purpose of a jury instruction is to inform the jury of the law applicable to the
facts without misleading the jury and to enable it to comprehend the case
clearly and arrive at a just, fair, and correct verdict.” Dill v. State, 741 N.E.2d
1230, 1232 (Ind. 2001). Therefore, we find no abuse of discretion in the trial
court’s denial of the proposed instruction or in its denial of the motion for a
new trial. See, e.g., Wallace v. Rosen, 765 N.E.2d 192, 198 (Ind. Ct. App. 2002)
(instruction properly rejected where it risked confusing and misleading the
jury).
Conclusion
[22] The trial court did not abuse its discretion in denying the Gressers’ motion for a
new trial based on their Trial Rule 59 motion to correct error regarding jury
4
Our conclusion that proposed jury instruction would have been likely to confuse rather than clarify the
issues means that we need not reach the questions of whether the evidence supported the giving of the
instruction and whether the substance of the proposed instruction was covered by the other instructions. See,
e.g., Barnard v. Himes, 719 N.E.2d 862, 869 (Ind. Ct. App. 1999) (where instruction not supported by
evidence, other two elements need not be analyzed), trans. denied.
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instructions. Although the tendered instruction based on the statute was a
correct statement of that statute and the model jury instruction on negligence
per se, the tendered instruction would have created ambiguities that were not
explained by other proffered instructions. As the proposed instruction may
have confused or misled the jury, we cannot say the trial court was wrong to
reject it. Therefore, we affirm.
[23] Affirmed.
Tavitas, J., and Baker, Sr. J., concur.
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