Eddie Wilkerson v. Robert R. Carr and Lawyer Transport, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Aug 20 2015, 9:37 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald L. Poynter Donald G. Orzeske
Poynter & Bucheri, LLC Beth L. Riga
Indianapolis, Indiana Goodin Orzeske & Blackwell, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eddie Wilkerson, August 20, 2015
Appellant-Plaintiff, Court of Appeals Case No.
29A05-1410-CT-490
v. Appeal from the Hamilton
Superior Court
Robert R. Carr and Lawyer The Honorable William J.
Transport, Inc., Hughes, Judge
Appellees-Defendants. Trial Court Cause No.
29D03-0909-CT-1236
Mathias, Judge.
[1]! Eddie Wilkerson (“Wilkerson”) sued Robert Carr (“Carr”) and Lawyer
Transport, Inc., (“Lawyer Transport”) (collectively “the defendants”), alleging
that Carr and Lawyer Transport were liable for damages suffered by Wilkerson
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after the vehicle Wilkerson was driving collided with the truck operated by
Carr. A jury found in favor of the defendants, and Wilkerson now appeals,
raising six issues on appeal, which we consolidate and restate as:
1) Whether the trial court abused its discretion in excluding testimony
from one of Wilkerson’s expert witnesses;
2) Whether the trial court abused its discretion in refusing to give the jury
two of Wilkerson’s proffered instructions;
3) Whether the trial court abused its discretion by giving the jury two of
the instructions tendered by Carr and Lawyer Transport; and
4) Whether the trial court erred in failing to give the jury the verdict form
tendered by Wilkerson.
[2]! We affirm.
Facts and Procedural History
[3]! On October 1, 2007, Carr, who was a commercial truck driver employed by
Lawyer Transport, was driving a flatbed truck transporting a forage harvester1
southbound on Interstate 69 when he noticed that the discharge spout of the
harvester had come loose from its binding and swung out to the side of the unit.
Carr stopped his truck at the edge of the paved portion of the highway, then
exited the truck cab to secure the discharge spout back into place. As he was
doing so, Wilkerson, who was driving a box truck in the right-hand lane of the
highway, veered outside of his lane and collided with the back of Carr’s flatbed.
Wilkerson was injured as a result of the collision.
1
A forage harvester is a large piece of farm machinery also known as a “silage chopper.” Appellant’s App.
p. 151.
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[4]! On September 30, 2009, Wilkerson filed a complaint against Carr and Lawyer
Transport, alleging that Carr was negligent in failing to ensure that the forage
harvester was properly secured, in stopping on the side of the highway, and in
failing to use warning devices to notify other drivers that he was stopped on the
side of the road. Wilkerson also alleged that Lawyer Transport was negligent in
entrusting the vehicle to Carr.
[5]! A jury trial was held from September 30, 2014 to October 2, 2014. Wilkerson
sought to admit the report and testimony of his expert witness, Jay Nogan
(“Nogan”), an engineer. Concluding that the report consisted largely of a mere
recitation of federal regulations and that only small sections of the report were
actually based on Nogan’s expertise, the trial court excluded most of the report,
as well as Nogan’s testimony related to the excluded portions of the report.
Wilkerson attempted to make an offer of proof on the report and testimony, but
the trial court asked him to wait until the end of the trial to do so. At the end of
the trial, Wilkerson failed to renew his request to make an offer of proof.
[6]! On October 3, 2014, the jury found in favor of the defendants, concluding that
Wilkerson was sixty percent at fault for the collision and the defendants were
forty percent at fault.
[7]! Wilkerson now appeals. Additional facts will be provided.
I. Nogan’s Expert Testimony
[8]! Wilkerson first argues that the trial court erred in excluding portions of Nogan’s
report and testimony. Generally, we review a trial court’s decision to admit or
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exclude evidence for an abuse of discretion. This standard also applies to
decisions to admit or exclude expert testimony. We reverse a trial court’s
decision to admit or exclude evidence only if that decision is clearly against the
logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Norfolk S.
Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100-01 (Ind. Ct. App. 2005) (citations
omitted).
[9]! Rule 702 of the Indiana Rules of Evidence provides as follows with regards to
the admissibility of expert witness testimony:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific
principles.
[10]! The party seeking to admit expert testimony bears the burden of establishing the
foundation and reliability of the scientific principles and tests upon which the
expert’s testimony is based. Tucker v. Harrison, 973 N.E.2d 46, 49 (Ind. Ct. App.
2012) (citing McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997)).
In determining whether expert testimony is reliable, the trial
court acts as a “gatekeeper” to ensure that the expert’s testimony
rests on a sufficiently reliable foundation and is relevant to the
issue at hand so that it will assist the trier of fact. When faced
with a proffer of expert scientific testimony, the court must make
a preliminary assessment of whether the reasoning or
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methodology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be applied
to the facts in issue.
Id. (citations and quotations omitted). To be admissible, an expert’s opinion
that an event caused a particular injury must be based on more than
coincidence and supported by evidence in the record, establishing a standard of
evidentiary reliability. Norfolk, 833 N.E.2d at 103.
[11]! The trial court here issued an order granting in part the defendants’ motion to
exclude the testimony and report of Jay Nogan, concluding that (1) the report
consisted largely of a recitation of relevant federal regulations and his opinion
regarding the ways in which the defendants failed to comply with those
regulations; (2) the only part of the report based on Nogan’s expertise were the
sections in which he outlined the procedures required to secure the machinery’s
discharge spout; (3) the report would not be admitted unless redacted; and (4)
Nogan would be permitted to testify about those things already in the record
before the court, but not about the excluded portions of the report. Appellant’s
App. p. 107.
[12]! While Nogan may have a degree of knowledge of federal regulations related to
the commercial transport of large machinery somewhat beyond that of ordinary
lay jurors, his opinion regarding whether Carr and Lawyer Transport complied
with those regulations was not necessarily helpful to the trier of fact. This is not
a case where expert testimony was required to assist the jury in understanding a
complex technical or scientific matter. Here, the jury was just as capable as
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Nogan of reviewing the regulations and weighing the evidence presented to
determine whether the defendants acted negligently, especially since the trial
court allowed Nogan to testify about the steps necessary to secure the discharge
spout.
[13]! Therefore, we conclude that the trial court did not abuse its discretion in
excluding in part Nogan’s report and the related testimony. See Roach v. State,
695 N.E.2d 934, 940 (Ind. 1998) (“Considering that the substance of the offer to
prove dealt with why a frightened individual might act and speak irrationally,
the court may have felt that this evidence was within the jury’s understanding
and, thus, an expert witness would not assist the jury as is required by Rule
702”); Hoffman v. Caterpillar, Inc., 368 F.3d 709, 714 (7th Cir. 2004) (the district
court did not abuse its discretion by excluding portions of expert testimony
regarding employee’s ability to operate machinery; videotape could be played
for jury and entered into evidence, thus allowing them to make determination
for themselves with respect to employee’s ability to run machine and, based
upon this independent assessment, draw inferences regarding her ability to meet
production levels.). Cf. WESCO Distribution, Inc. v. ArcelorMittal Indiana Harbor
LLC, 23 N.E.3d 682 (Ind. Ct. App. 2014) trans. dismissed, 29 N.E.3d 1273 (Ind.
2015) (trial court did not abuse its discretion in admitting mill operator’s expert
testimony from mechanical engineer and electrical engineer as to whether
fractured blowout coils caused braking system failure in crane while it was
hoisting ladle of molten iron, which unexpectedly descended from its hoisted
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position and tipped, igniting fire that caused extensive damage to mill;
testimony was helpful in explaining to jury how incident could have happened).
II. Wilkerson’s Tendered Jury Instructions
[14]! Wilkerson next argues that the trial court erred in instructing the jury. The
purpose of an 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.” Joyner-Wentland v. Waggoner, 890
N.E.2d 730, 733 (Ind. Ct. App. 2008) (quoting Estate of Dyer v. Doyle, 870
N.E.2d 573, 581 (Ind. Ct. App. 2007)). We review a trial court’s decision to
give or refuse a tendered instruction for an abuse of discretion. Id. Upon review
of a trial court’s decision to give or refuse a tendered instruction, we consider
whether the instruction (1) correctly states the law, (2) is supported by evidence
in the record, and (3) is covered in substance by other instructions. Id. at 734.
[15]! Erroneous jury instructions need not result in reversal of a judgment. Armstrong
v. Federated Mut. Ins. Co., 785 N.E.2d 284, 287 (Ind. Ct. App. 2003), reh’g denied,
trans. denied 804 N.E.2d 750 (Ind. 2003). Reversal is warranted only “upon an
affirmative showing that the instructional error prejudiced the party’s
substantial rights.” Id. at 289. If the verdict would not have been different, any
error was harmless. Id. at 287.
A.! Tendered Instruction Number 3
[16]! Wilkerson submitted to the trial court final instruction number 3, which
contained 12 paragraphs quoting various redacted portions of the Code of
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Federal Regulations (“CFR”) related to motor carrier companies, the drivers
they employ, and the operation of commercial motor vehicles. The final
paragraph of the instruction stated, “[i]f you decide from the greater weight of
the evidence that a person or entity violated any of these laws and that the
violation was not excused, then you must decide that person was negligent.”
Appellant’s App. p. 111. Wilkerson withdrew several paragraphs of the
tendered instruction. The defendants objected to the remaining paragraphs
contained in the instruction, arguing that they contained incomplete statements
of the law and were redacted in a way that caused them to be misleading to the
jury. The trial court agreed with the defendants and determined that the
modified instruction tendered by Wilkerson contained incorrect and
intentionally misleading statements of law.
[17]! Wilkerson contends that proposed instruction number 3 was a correct statement
of law, in that the language came directly from the Code of Federal
Regulations; that the evidence supports the giving of the instruction; and that
the substance of the instruction is not covered by any other instruction. We
agree with the trial court, however, that the instruction tendered by Wilkerson
was redacted in a way that could reasonably be viewed as misleading to the
jury. Specifically, it quoted a CFR requiring commercial vehicle drivers to
periodically inspect their cargo and securement devices but omitted the section
of the regulation that stated that the requirement did not apply in certain
circumstances; it quoted language that cargo must be secured on the truck but
omitted the rest of the sentence that read “to prevent the cargo from leaking,
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spilling, blowing, or falling from the motor vehicle”; it included the quote
“[c]argo must be contained, immobilized or secured” against shifting, but
omitted the rest of the sentence, which read, “in accordance with this subpart to
prevent shifting upon or within vehicle to such an extent that the vehicle’s
stability or maneuverability is adversely affected”; and it included references to
other sections of code without providing any language from those sections.
Appellant’s App. pp. 110-11, 130-36. The trial court reasonably concluded that
the instructions placed undue emphasis on the particular language of the
regulations that are helpful to Wilkerson’s case, while omitting less helpful
language in a way that could be misleading to the jury. Therefore, the trial court
did not err in refusing the instruction as an incorrect statement of the law. See
Hartford Steam Boiler Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1141-42
(Ind. Ct. App. 2002) (affirming trial court’s refusal of tendered instructions
where instructions included selected portions of the Code of Federal
Regulations and placed excessive emphasis on particular sections to the
exclusion of the remainder of the sections which were also applicable to the
case).
[18]! Wilkerson also argues that the trial court should have allowed him to “modify
and retender this instruction” after rejecting it. Appellant’s Br. at 16. Upon
review of the record, however, we could not find any request by Wilkerson to
modify and re-tender jury instruction number 3 subsequent to the trial court’s
refusal to give the instruction. In his reply brief, Wilkerson argues that the trial
court “made it clear that it was unwilling to entertain further arguments”
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regarding the tendered instruction and that Wilkerson made his “intention to
submit a retendered instruction with the complete CFR’s clear.” Appellant’s
Reply Brief at 6. We disagree. The record reveals that, after the trial court
rejected Wilkerson’s instruction number 3 as an incorrect statement of the law,
Wilkerson’s counsel attempted to convince the trial court that the instruction
was a correct statement of the law. However, nothing in the record indicates
that Wilkerson’s counsel directly requested an opportunity to modify and re-
tender the rejected instruction. Wilkerson essentially argues, then, that the trial
court should have sua sponte provided him the opportunity to re-tender the
instruction when he made no specific request to do so. The law has no such
requirement, and such an argument is unavailing on appeal.
B. Tendered Instruction Number 7
[19]! Wilkerson also argues that the trial court erred in refusing his tendered
instruction number 7 as a mandatory instruction.
[20]! The instruction stated:
When the events in this case happened, the following Indiana
laws provided, in part, as follows:
1. (a) This section does not apply to a person who drives a
vehicle that is disabled while on the paved, improved, or main
traveled part of the highway in manner and to the extent that it is
impossible to avoid stopping and temporarily leaving the disabled
vehicle on the highway.
(b) A person may not stop, park, or leave standing an attended or
unattended vehicle upon the paved or main traveled part of a
highway outside of a business or residence district, if it is
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practical to stop, park, or leave the vehicle off the highway. I.C.
§ 9-21-16-41(b)
2. “Highway” or “street” means the entire width between the
boundary lines of every publicly maintained way when any part
of the way is open to the use of the public for purposes of
vehicular travel. The term includes an alley in a city or town.
I.C. § 9-13-2-73.
The location of a vehicle on the paved portion of a highway,
including the paved shoulder of a highway, poses a threat or
harm to the community. Indiana Code § 9-21-16-1 prohibits an
individual from stopping, parking, or leaving a vehicle on a
paved portion of the highway unless the vehicle is disabled or he
or she is doing so at the direction of a police officer.
Appellee’s Br. at 19.
[21]! A mandatory instruction charges the jury that if it finds that a certain set of facts
exists, it must render a verdict for a particular party. Skaggs v. Davis, 424 N.E.2d
137, 141 (Ind. Ct. App. 1981). Mandatory instructions are generally disfavored,
and this court has cautioned that they not be used. Northrop Corp. v. General
Motors Corp., 807 N.E.2d 70, 103 (Ind. Ct. App. 2004). Here, the erroneous
instruction was not a mandatory instruction because it neither set forth a factual
scenario nor used mandatory language. Instead, it set forth general statements
of law.
[22]! However, the instruction was properly rejected as an incorrect statement of the
law. Specifically, the portion of the instruction that states “[t]he location of a
vehicle on the paved portion of a highway, including the paved shoulder of a
highway, poses a threat or harm to the community” is misleading to the jury
and an impermissible editorial comment. The case on which Wilkerson bases
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the statement, Jones v. State, 856 N.E.2d 758 (Ind. Ct. App. 2006), trans. denied,
does not, as Wilkerson would have the jury believe, stand for the proposition
that any vehicle located on the paved portion of the highway, under any
circumstances, poses a threat or harm to the community. The facts of Jones are
distinguishable from this case; in Jones, this court held that the impoundment
and inventory search of a car abandoned on the side of a highway was
permissible under the Fourth Amendment of the United States Constitution
and Article I, Section 11 of the Indiana Constitution. Here, Carr quickly pulled
his truck to the side of the highway so that he could exit the truck and re-secure
part of his cargo that had swung loose.
[23]! Furthermore, the jury in this case heard evidence regarding the relative safety of
the location in which Carr pulled over and whether the location was marked as
a shoulder or not. Wilkerson’s counsel argued extensively during closing
statements that it was not reasonable or safe for Carr to stop his truck where he
did. Other instructions given by the trial court informed the jury that they were
to find for the defendants if they decided that Wilkerson’s fault for his injury
was greater than fifty percent, that “a person using a road . . . is entitled to
assume that others using the road will use reasonable care,” and on the
meaning of negligence, foreseeability, and reasonable care. Tr. p. 891. The jury
was well aware of the theory Wilkerson sought to present through the
instruction—that Carr was negligent in stopping his truck on the side of the
highway—and still attributed the greater proportion of fault to Wilkerson.
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Therefore, the trial court’s refusal to give the proposed instruction was not an
abuse of discretion.
II. Defendants’ Tendered Instructions
A.! Instruction Number 16
[24]! Wilkerson next argues that the trial court improperly tendered the defendants’
final instruction number 16, over Wilkerson’s objection:
16. When the events of this case happened, Indiana Code 9-21-8-
14 provided as follows:
“A person who drives a motor vehicle may not follow
another more closely than is reasonable and prudent,
having due regard to the speed of both vehicles, the time
interval between the vehicles, and the condition of the
highway.”
If you decide from the greater weight of the evidence that one of
the parties violated Indiana Code 9-21-8-14, and that the
violation was not excused, then you must decide that person was
negligent.
Appellant’s Br. at 22-23.
[25]! Wilkerson argues that “there was no evidence in the record to indicate that [he]
was following another vehicle more closely than was reasonable and prudent,”
Appellant’s Br. at 23, and, therefore, it was error for the trial court to give an
instruction based on this theory.
[26]! We note that a trial court may be justified in giving an instruction if any
evidence supports the instruction. R.R. Donnelley & Sons Co. v. N. Texas Steel Co.,
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752 N.E.2d 112, 139 (Ind. Ct. App. 2001). “If there exists any facts or
circumstances in the case although quite meager, to which the instructions
might, upon any view, be pertinent, it would not be error to give them,
although they were so given to the jury over the objection of the complaining
party.” R.R. Donnelley & Sons Co. v. N. Texas Steel Co., 752 N.E.2d 112, 139 (Ind.
Ct. App. 2001)
[27]! While Wilkerson argues that no evidence in the record indicates that he was
following too closely behind Carr’s truck or any other vehicle, he testified that
his view of Carr’s truck was blocked by another vehicle until just before
Wilkerson collided with Carr’s truck. He also stated that the collision occurred
after he looked away from the road for a moment to reach for his Mountain
Dew soda. This evidence alone supports an inference that Wilkerson was
following the vehicle in front of him too closely because a reasonable juror
could conclude that, had Wilkerson been following at a safer distance, he
would have seen Carr’s truck pulled over at the side of the road, have seen that
he had veered off of the traveled portions of the highway, and had sufficient
time to avoid the collision. Under these facts and circumstances, the jury could,
and did, conclude that Wilkerson was partially to blame for his injury by
following too closely behind another vehicle. The trial court did not err in
giving final instruction number 16.
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B. Instruction Number 18
[28]! Wilkerson also argues that the trial court erred in giving final instruction
number 18, tendered by the defendants. The instruction stated:
You are instructed under the laws of the State of Indiana in
determining whether an act or omission is negligent, the question
must depend on whether or not an injury of some kind to some
person could have been reasonably expected to result from such
act or omission; reasonable care requires a person to anticipate
and guard against what usually happens or is likely to happen,
and a failure to do this may be negligence; but reasonable care
does not require a person to foresee and guard against that which
is not likely to occur, and a failure to do this is not negligence.
Appellee’s Br. at 24.
[29]! Wilkerson contends that the instruction “is an incorrect statement of law
because it is not based upon the model instructions and relies upon inapplicable
case law.” Appellant’s Br. at 26. He argues that the facts in Evans v. Schenk Cattle
Co., 558 N.E.2d 892 (Ind. Ct. App. 1990), a case in which use of a similar
instruction was affirmed by this court, are distinguishable from the facts of the
present case because in Evans the injury to the plaintiff occurred on a farm as a
result of a bulldozer becoming stuck in the mud, rather than as a result of a
traffic accident on a highway. He maintains that because, in Evans, the
defendants argued that the plaintiff’s injury was foreseeable to the plaintiff since
the plaintiff had encountered a similar experience in the past, the issue of
foreseeability was different in Evans than it is here, and since in this case, “there
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is no evidence in the record about breach of reasonable care in prior occasions,”
the instruction was given in error. Appellant’s Br. at 28.
[30]! We disagree. In Evans, this court affirmed the use of the instruction, noting that
it “correctly informed the jury that the theory of negligence includes an element
of foreseeability.” Evans, 558 N.E.2d at 894. Importantly, this court also stated:
We note the Evanses’ argument that the instruction was
irrelevant because it was based on Alfano, supra, which involved a
dog bite and not the removal of a bulldozer from mud. We find
no merit in this argument because the case was cited for the
general proposition of law regarding foreseeability. No attempt
was made to analogize the particular facts in Alfano with the facts
in the present case.
Id.
[31]! Here, as in Evans, the trial court used the instruction to generally inform the
jury of the foreseeability element of the theory of negligence. Also, as in Evans,
the trial court here did not analogize the facts in Evans with the facts in this
case. Therefore, we conclude that the trial court did not abuse its discretion in
delivering final instruction number 18.
IV. Jury Verdict Form
[32]! The final issue raised by Wilkerson is whether the trial court erred by giving the
jury a verdict form that included two spaces for apportioning fault between
Wilkerson and the defendants, rather than three spaces for apportioning fault
between Wilkerson, Carr, and Lawyer Transport individually.
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[33]! Indiana Code section 34-51-2-11 provides: “The court shall furnish to the jury
forms of verdicts that require only the disclosure of (1) the percentage of fault
charged against each party and nonparty; and (2) the amount of the verdict
against each defendant.”2 Wilkerson tendered a jury verdict form that included
a space to allocate fault to Wilkerson, a space to allocate fault to Carr, and a
space to allocate fault to Lawyer Transport. The verdict form given by the trial
court, however, included only two spaces for allocating fault, one for Wilkerson
and one for Carr and Lawyer Transport collectively. Wilkerson argues that he
“should have been allowed to use a jury verdict form to attribute fault between
Defendants Robert Carr and Lawyer Transport, Inc., similar to the verdict form
utilized in [Indian Trucking v. Harber, 752 N.E.2d 168, 177 (Ind. Ct. App.
2001).]” Appellant’s Br. at 29.
[34]! Wilkerson’s reliance on Indian Trucking is misplaced. In Indian Trucking, the
plaintiffs filed a complaint against several defendants, including the driver of
the car in which the decedent was a passenger, the driver, and the owner of the
commercial truck that collided with the car in which the decedent rode, as well
as the motor carrier that employed the commercial truck driver. The complaint
named each of the defendants individually. On appeal, the defendants-
appellants argued that the trial court erred in submitting jury verdict forms that
provided only one space for an aggregate percentage of fault for all of the
defendants. This court agreed, concluding that the record contained sufficient
2
The Comparative Fault Act, Indiana Code section 34-51-2-1, provides for proportional allocation of fault,
whereby each person whose fault contributed to the injury bears his proportionate share of the total fault.
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evidence to support separate jury verdicts against each of the defendants
individually.
[35]! Here, however, were only two defendants, rather than several, and Wilkerson
admitted that the jury could not find against Carr without also finding against
Lawyer Transport:
Court: Have you made any claim that I’m not aware of or I’m
not thinking right now about where you claim that Robert Carr
was negligent in this case in a manner or at fault in this case in a
manner which would not result in Lawyer Transport being
responsible under the admissions that have been made in this
case? Is there any way that this jury could find against Robert?
Counsel: Individually?
Court: And not find against Lawyer Transport?
Counsel: No.
Court: Then I’m going to give the instructions that we’ve
discussed and I’m not going to give separate ones for Lawyer
Transport and Robert Carr. And this is my reason. I don’t think
it makes a difference unless it sets up the jury for error because
the ultimate result is exactly the same either way we do it in this
circumstance as it applies in this case.
Tr. p. 815.
[36]! Wilkerson’s counsel also agreed that, since they were proceeding under a theory
of respondeat superior, regardless of how the jury might apportion fault between
Carr and Lawyer Transport, the result would be the same for Wilkerson:
Court: I understand that, that if this jury were to find, if this jury
were to find, just as an example, 50 percent negligence by Mr.
Wilkerson and 25 by Lawyer and 25 by Carr, 50/50, do you
agree that you get money?
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Counsel: Yes.
Court: Okay. Does the amount of money you get change . . . if it
becomes 30/20?
Counsel: No.
Court: 40/10?
Counsel: No.
Tr. p. 813.
[37]! Moreover, the trial court instructed the jury, without objection from Wilkerson,
that “[i]f you find Robert Carr to have been negligent, you’re instructed that as
a matter of law the carrier and codefendent Lawyer Transport, Inc., . . . is liable
as a matter of law for any wrongful conduct of the driver, Robert Carr.” Tr. p.
892.
[38]! Under these facts and circumstances, the verdict form given by the trial court
was not improper, since all parties agreed that Carr could not be found liable
without also finding Lawyer Transport vicariously liable, and once the jury
decided the extent to which the defendants were jointly liable, any
apportionment of fault between the defendants under these facts and
circumstances would be immaterial and would only serve to waste time and
confuse the jury. See Utley v. Healy, 663 N.E.2d 229 (Ind. Ct. App. 1996); Evans,
558 N.E.2d at 896.
[39]! To the extent that Wilkerson claims that the jury’s ultimate allocation of sixty
percent fault to himself would have been different had the trial court included
separate spaced for Carr and Lawyer Transport, we reject this argument as well.
Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015 Page 19 of 20
No basis exists to believe that the jury would have found Wilkerson to be less
negligent had it had the opportunity to allocate fault between Carr and Lawyer
Transport. We therefore conclude that the trial court did not err in submitting
the jury verdict forms.
Conclusion
[40]! For all of these reasons, we conclude that the trial court did not abuse its
discretion in excluding testimony from Nogan, in refusing to give the jury two
of the instructions tendered by Wilkerson, in giving the jury two instructions
tendered by the defendants, or in failing to give the jury the verdict form
tendered by Wilkerson.
Affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015 Page 20 of 20