*1 it clear that our decision to make We wish CONSTRUCTION, expressing an interpreted as HAGERMAN not be
should INC., Appellant-Defendant, question concerning the difficult opinion physical primary receive parent should merely hold child. We custody of the capacity supported as findings in her Theresa COPELAND the trial court’s they were osten- Antho- upon which of the Estate of Administrator based, i.e., testimony Appellee-Plaintiff, report ny Copeland, sibly G. ap- rapidly Mindful of the Dr. Newbauer. Crown-Corr, Inc., Appellee-Defendant. start of the 1998-99 proaching date the trial year, we further direct school 18A04-9612-CV-519. No. in this matter so that expedite hearing forty-five may within be rendered a decision Appeals of Indiana. Court of opinion. receipt of this days of the 25, 1998. June in- remanded with Judgment reversed and Rehearing Oct. Opinion on structions. J.,
KIRSCH, concurs. SULLIVAN, J., separate concurs opinion.
SULLIVAN, concurring. Judge, the trial court’s majority construes independent imply that an de- “Findings” to upon based of facts was made termination I do not testimony of Dr. Newbauer. may implication be drawn. dispute thаt such However, court’s enu- actuality, not the court’s find- “Findings” are merated They merely state what the ings of fact. “testimony” Dr. Newbauer was. testimo- adopt Dr. Newbauer’s court did not fact; nor did ny “acknowledgments” as independent determina- make an the court testimony. upon the tion of fact in reliance view, “Findings” inadequate my In are the evidence regard without to what expert opinions. in terms of have disclosed “finding” that a summary testimony A or a to thus and so is particular witness testified of the testimo finding not a that the content Steel ny v. United States fact. Perez (1981) Ind., 29; Hehr v. Corp. (1989) Ind.App., 534 N.E.2d Review Board itself, sup deficiency, in would 1122. This findings of fact. port a remand for fiilly I concur. respects, In all other *3 Threlkeld, Rocap, Witchger
W. Brent & Threlkeld, Indianapolis, Appellant-Defen- for dant. DeFur, Yoran, Murphy, D. Hanley,
Steven Reed, Muncie, Savage, Radcliff & James S. McFadden, Columbus, Savage, Winner Ohio, Appellee-Plaintiff Cope- Y. Theresa land. Reeder,
Mary Luarde, K Sharon A. R. Jay Taylor, Riley Egloff, Bennett & India- Appellee-Defendant napolis, Crown- *4 Corr, Inc.
OPINION
RATLIFF, Judge. Senior Summary1 Case Appellant-Defendant, Hagerman Con- struction, (“Hagerman”), appeals Inc. the $4,750.000.00 jury’s Cope- award of to Teresa (“Cоpeland”), land administratrix of the es- (“An- Anthony Copeland tate of her husband thony”), Anthony’s wrongful on her claim for appeals jury’s death. also finding Crown-Corr, its subcontractor part Inc. was not at fault. affirm in part. remand
Issues
Hagerman raises thirteen issues for our review which we restate as: properly I. Whether the trial court ex- deposition Copeland’s expert cluded the witness, trial; who was unavailable for II. properly Whether the trial court ad- subsequent mitted evidence of remedial by Hagerman; measures III. properly Whether the trial court ex- cluded evidence that had not regulations Depart- violated of the Indiana (“IOSHA”), ment of and ex- Labor/OSHA cluded evidence that subcon- tractor, Beasley F. John Construction Co. (“Beasley”), regula- had violated IOSHA tions; properly
IV. Whether trial court ex- Anthony’s cluded evidence of blood alcohol content; deny Hagerman’s petition argument. 1. We herewith for oral (“CTI”), also a subcontractor properly ad- trial court Whether
V. Services, Inc., by Pre-Cast and was installed industry of construction evidence mitted At time of the of CTI. a subcontractor the mean- regarding practice custom accident, installing sheet was Crown-Corr terms; ing of contract opening. vicinity of the siding in the metal ex- properly Whether VI. pay- fell opening through source of collateral cluded upper many openings on the level Copeland; one of received ments unprotected for gone had of the arena which properly re- trial court Whether VII. 29, 1991, March a considerable time. On jury instruc- Hagerman’s tendered fused work, Crown-Corr, begin its preparing to prior or- judicial notice tion openings Hagerman cover requested that ders; begin. Because it before would properly the trial court VIII. Whether provide subcontractors had told all its emer- the sudden instructed they safety themselves measures doctrine; gency refused, concerned, pro- initially it properly in- the trial court IX. Whether openings nonetheless. to cover ceeded responsibility jury regarding structed conflicting re- Although the evidence safety; were ever opеnings all garding whether in- properly trial court X. Whether *5 Anthony covered, fell opening into which the jury regarding Crown-Corr’s the structed prior to the acci- point at was covered some indemnify Hagerman; obligation to conflicting re- was also dent. properly court de- the trial XI. Whether open- particular garding who uncovered summary motion for Hagerman’s nied accident, Sater Before the ing and when. for indemnifi- on its cross-claim judgment vicinity doing in minor electrical was also the Crown-Corr; cation from prepara- in taking and measurements work installing the vertical ductwork properly de- tion of trial court XII. Whether the set-off, through openings. re- the for Hagerman’s motion nied judgment in against the a credit questing opening, Anthony through the fell When settlement with Copeland’s the amount of on a concrete beam he first landed face down Electric, Inc.; and, Sater was eighteen feet below. There fifteen to properly trial court XIII. the appeared Whether to be testimony although he damage jury’s award to find the up, refused tried to sevеrely injured, Anthony stood beam, excessive. down along then crouched move the falling rest of the slipping off and the before History twenty- and Procedural was way ground. Facts to the by survived a wife years age and was nine to the verdict The facts most favorable young and two sons. University con- Ball State that in show 3, 1992, Copeland filed her August Electric On and Sater Hagerman with tracted Hager- wrongful against (“Sater”) complaint for death of a new for the construction Co. Services, man, Hag- Inc. prime CTI and Pre-Cast Hagerman was a arena. basketball indemnity for filed a cross-claim general construc- erman responsible for contractor CTI filed a cross-claim tion, against re- CTI and prime contractor and Sater was a Services, Summary Inc. against Pre-Cast con- sponsible and electrical for mechanical granted in favor of CTI 24, 1991, Anthony, was later judgment an April struction. On Services, Inc. and both were Pre-Cast employed by Beas- and experienced ironworker and Crown-Corr from the suit. fell to his dismissed ley, Hagerman, a subcontractor nonpаrties and then in were named unprotected opening Sater through an death a initiated joined in suit. nearly forty-five feet above precast concrete Beasley, which was third-party against for action opening was to allow ground. The and Crown- for later trial. Sater to be severed cooling ductwork heating vertical and summary judg- for filed motions was Corr both precast concrete installed Sater. The Hager- denied. which the trial court Technology, Inc. ment manufactured Concrete deposition taking a cross-claim for ...”2 T.R. man filed indemnifica- also 32(A). Copeland Copeland Crown-Corr. settled and against tion Both Crown-Corr were trial, prior represented by during dismissed Sater counsel taking with and designated nonparty. Thus, deposition. deposition Sater Hasse’s 32(A). T.R. admissible under trial, Following day jury a four found at percent was one hundred hearsay deposition Hasse’s if offered death, Anthony’s no fault assigned fault for the truth of the assertions contained therein. Crown-Corr, found for to either Sater Nevertheless, cross-claim Crown-Corr given [testimony as a ... in a witness Copeland awarded indemnification. deposition compliance taken with law $4,750,000.00 damages. Hagerman’s mo- proceed- the same or course of another as was tion to correct errors was denied ing, party against whom the testimo- amount Hagerman’s motion for set-off of the ny ... opportunity is now offered had an Copeland. Hager- settlement Sater’s develop and similar motive the testimo- appeals entry of man the trial court’s now cross, direct, ny by or redirect examination judgment. hearsay [is not excluded rule if declarant as a is unavailable witness]. Discussion and Decision 804(b)(1). Evid.R. The trial court found that Deposition I. Hasse Crown-Corr not have a did similar motive argues Hasse, apparently cross in response examine excluding deposi- erred in evidence the argument de- Crown-Corr’s that Hasse’s witness, Quentin Copeland’s expert tion of position discovery deposition, was a (“Hasse”), present Hasse who was not deposition. The Indiana Rules of Trial deposi- testify. contends that the recognizе Procedure do such a distinc- tion was admissible under either Ind.Trial *6 tion.3 of the deposition, Our review Hasse 804(b)(1). 32(A)(3) or Rule Ind.Evidenee Rule pursuant admitted offer deposition The trial excluded the prove, extensively that indicates Crown-Corr 403], upon [Evid.R. as far as unfair “based deponent. Although the cross-examined to con- prejudice, the matter would lead [sic] may anticipated have Crown-Corr that jury my opinion, not sure fuse the and I’m testify subject at trial Hasse would and be a at the that Crown did have similar motive cross-examination, we further do not discern 6759). (R. examination.” time of cross during taking that the of its motive Hasse’s deposition question- different. The was The admission or of a de exclusion party which ing responsible focused on was position is within the sound of the discretion through opening Anthony for the fell: Tyner, Holdings, trial LKI Inc. 658 court. v. Sater, Hagerman, or Crown-Corr. We con- 111, 116 de (Ind.Ct.App.1995), N.E.2d trans. deposition un- clude that the was admissible only if nied. will reverse the trial court 804(b)(1). der Evid.R. we that an of determine abuse discretion State, 326, court, however, Kellems occurred. v. 651 N.E.2d The trial exсluded (Ind.Ct.App.1995). deposition Rule 32 it found that there a 328 Indiana Trial because prejudice governs depositions danger use of “At or at trial: of unfair confusion of n any part deposition, jury. ... or all of a Statements are admissible under may far as admissible of evi one rule be excluded another. Evi so under rules though probative were “if its applied may dence as the witness dence be excluded value present testifying, may against substantially outweighed by danger is be used issues, present or any party represented prejudice, who was or at unfair confusion of the witness, 1343, deposition Wenger, or not a 3. 572 N.E.2d 2. "The whether Osborne v. 1345 Cf. any purpose party, any party (discussing objec- be used (Ind.Ct.App.1991) waiver of (b) finds: ... witness is if the court that the depositions during taken for trial tions or 32(A)(3). parties the state.” T.R. do outside discovery purposes). Hasse, appeal dispute on a resident Illinois, was outside the state. 954 Subsequent Remedial Measures II. jury, or considerations
misleading the
presentation of cu-
delay, or needless
undue
the trial
Hagerman argues that
Although
Evid.R.
evidеnce.”
mulative
imme
admitting
evidence that
court erred
proffered
that the
agree
inclined to
we are
accident, Hagerman’s
diately following the
confusing, we choose not to
deposition was
openings,
all
employees installed covers for
reasoning
behind
speculate on the
through which
including the one
error,
there was
ruling. Even if
court’s
remedial conduct subse
fell. Evidence of
of evidence is
in the admission
“[a]ny error
happening of an accident
quent
to the
evidence is
or similar
if the same
harmless
Mausness,
Dukett v.
generally inadmissible.
Homehealth,
objection.”
without
submitted
1292,
(Ind.Ct.App.1989),
1293
Co.,
Pub.
Indiana
Serv.
Inc. v. Northern
Rule 407
Indiana Evidence
trans. denied.
(Ind.Ct.App.1992).
N.E.2d
provides:
event, measures are taken
after an
When
contends; that Hasse’s tes
which,
have
previously,
if
would
taken
1)
in two areas:
timony
not cumulative
occur,
likely to
evi-
the event less
made
responsibili
only Hasse testified
Sater’s
is not
subsequent measures
dence of the
day
openings
safety
on the
ty for
arose
culpable
prove negligence or
admissible tо
2)
created;
precast concrete
in connection with the event.
conduct
had a
that Crown-Corr
only Hasse testified
require the exclusion of evi-
rule does not
employ
a hazard to other
duty to not create
of-
subsequent measures when
dence of
Brickman,
However, Morley
Hager
ees.
proving
as
purpose,
another
fered for
witness,
expert
testified
Sater’s
man’s
control,
feasibility
precau-
ownership,
or
“the
occurred from
start
responsibilities
controverted,
measures,
im-
tionary
job.”
Because
their work on the
peachment.
project prior to the
working on the
Sater was
specifically
rule
authorizes
admission
concrete,
precast
the dis
installation
subsequent
mea-
of a
remedial
responsibility when
tinction between Sater’s
purpose
other than
sure when offered for
and when
precast concrete was erected
Utley
Healy,
proving negligence.
work is immaterial.
started their
Sater
(Ind.Ct.App.1996), trans. de-
re
also testified
Sater’s
Brickman
Copeland and Crown-Corr contend
niеd.
think,
responsibility
sponsibility: “I
don’t
to show that
that the evidence is admissible
*7
openings
covered]
are
cheek that the
[to
Crown-Corr, had
Hagerman,
or
not Sater
say
To
that one
solely Hagerman’s....
day
the area on the
of the accident.
control of
responsibili
greater
has a
[prime contractor]
issue, how
need not decide this
7584).
(R.
other, you cannot.”
ty
than
It is well settled that error
admit
ever.
Crown-Corr, Brickman stated
Regarding
not available on
ting
at the trial is
evidence
responsi-
had a
opinion
his
that Crown-Corr
complaining party submits
appeal where the
leave it
a condition and
bility “not to create
substantially
effect.
to
the same
evidence
doing
or
some-
informing Hagerman
without
Rogers,
City
Lake
v.
Station
it,
protect
to not allow that
thing positive
pre
to
(Ind.Ct.App.1986). During the
(R. 7579).
defense,
In
Hagerman
created hazard to continue.”
read into
sentation of its
addition,
Copeland’s expert
Taylor,
deposition of ironworker Wil
J. Robert
evidence
following
witness,
may have
statements
that Crown-Corr
liam Tomich.
testified
jury:
provide safety measures to
read before the
responsibility
to
they
an
“if
created
another subcontractor
After the
Q.
Hagerman].
[Counsel
away from it.”
unsafe condition and walked
holes covered?
accident were the
(R. 5888-89).
the sub-
We conclude
Yes.
A.
[Tomich].
deposition was the same
stance of the Hasse
them?
Q.
you know who covered
Do
and was cumula-
or similar to other evidence
sure,
believe,
I think it
by the
I
I’m not
prejudiced
A.
Hagerman
tive.
was not
Hagerman.
deposition.
trial court’s exclusion
(R. 7415).
[Rjecords,
statements,
testimony
reports,
was not
Because this
or data
form,
compilations
public
of a
explain improperly
or
admit-
office
offered
rebut
Goetz,
evidence,
agency, setting
forth ...
151 Ind.
matters ob-
ted
see Leuck v.
(1972),
pursuant
duty imposed
by
served
law
Hagerman
App.
Hagerman excluding regulations. Tay- evidence of Beas erred in tion IOSHA J. Robert Generally, lor, architect, ev ley’s deputy with IOSHA. settlement coroner and testified attempting that, or to “compromising IOSHA, comply Hager- idence of in order ... is not admissible to compromise a claim openings man have could either covered the Hagerman prove liability.” Evid.R. Hager- them. If barricaded Beasley was not that because contends testimony man considered this to be a state- trial, excluding rule offers of party at Hagerman regula- that violated ment IOSHA apply. Although compromise not we do does tions, limine, contrary to the order in it evidence is admissible that such decide objected should have at trial. party, one who is not a against offered when testimony The trial court from excluded Beasley in that is involved this law we note county Beasley, that coroner he told third-party complaint Hagerman’s suit. Hagerman, get compliance in with IO- Beasley separated for later trial. against SHA; Taylor from that was not aware of he separating trial trial court’s order stat violations; any and from Randall IOSHA in presented the trial on ed: “The evidence Horstman, CFO, Hagerman Hagerman that Complaint incorporat Copeland shall be any was not cited IOSHA for conditions in that occur on ed Having related to the accident. excluded the Third-Party Complaint against Beasley so as safety actual worksheets IOSHA orders presenting to relieve from evidence, it was not unreasonable for (R. any subsequent at trial.” same evidence testimony opinion the trial court to exclude 1728). Any here evidence admitted would be about such violations. The trial court did not Beasley. Hagerman also against admitted excluding its in this evi- abuse discretion that excludes evi asserts Evid.R. dence. underlying on the claim. dence offered deciding the truth of this Again, without IV. Blood Test Evidence assertion, we note that offered underlying prove Hagerman argues the claim the trial court the evidence settlement, Beasley excluding Anthony’s violated in IOSHA erred evidence of safety regulations. sample The trial court did not blood alcohol content from a taken at excluding evidence of autopsy.8 Copeland abuse its discretion time contends Beasley’s settlement with IOSHA. sample that because the was not fro- blood zen, added, preservatives no and the witness testi- The trial court also excluded blood test was not done until sixteen months Beasley, Hager- mony at trial that but not later, the results are unreliable. safety regulations. man had violated IOSHA proffered by both counters the evidence by the mo- testimony was not covered expert parties qualified was attested to limine, but the trial court tion or order been witnesses and the should have apparently expanded the order to cover IO- testimony. weigh conflicting allowed Hagerman ar- compliance generally. SHA gues abused its discretion that the trial court provide that Our evidence rules allowing excluding testimony, oth- “[e]xpert testimony scientific is admissible testimony had violated er only if the court is satisfied that the scientific regulations. IOSHA principles upon expert testimony which the 702(b). closing rehable.” Evid.R. In addi Copeland’s opening and ar rests are tion, regula “[e]xperts may testify opinions based guments at trial mentioned IOSHA evidence, provided that it is testimony regarding tions and there on inadmissible *9 Contrary type reasonably upon by experts regulations.7 content of of the relied these Thus, assertion, in 703. the results there was no testimo- the field.” Evid.R. pre- percent 8. results indicated a 0.02 blood deterniine whether the IOSHA records were The test pared advocacy purposes anticipation or in for alcohol content. litigation. § 7. 29C.F.R. 1926.500.
957 possibility of only preserved raises more than a if the test here is admissible of the blood upon testing, irregu- not a minor error and is test de- principles upon which the scientific Hayes. in larity procedure in as addressed is of the and the evidence pends are rehable error, subject to While scientific test is upon by experts in the reasonably relied type Hayes extend so far that cannot evidence “recog- reliability requirement field. where even the laborato- becomes admissible ‘gatekeep- trial court as the role of the nizes conducting provides testimony ry the test expert scien- admission of concerning the er’ reliability. questioning the test’s Geary, Weinberg v. 686 testimony.” tific (Ind.Ct.App.1997). The 1301 State, Hopkins v. Hagerman also cites has the of the scientific evidence proponent (Ind.1991), proposition for the N.E.2d 1297 reliability scienti- prove the burden experts ... or qualified that a “battle of State, 682 N.E.2d fic test. McGrew reliability of other conflict as to the (Ind.1997). The decision of the trier of Id. at is to be resolved fact.” reliability will be reviewed court as to However, supreme our court re 1303. has Id. abuse of discretion. point. In cently Hopkins on this clarified (Ind. State, N.E.2d 1243 Harrison v. parties that the do not Initially, we note 1995), proposi reiterated the above the court rеliability testing gener- of blood dispute the Hopkins, emphasized tion from proper procedures were ally, or whether the qualification expert witnesses and the reli the test itself. The performing utilized in ability principles underlying the of scientific reliability on the of the test argument focuses testimony questions threshold for the are unfrozen, unpreserved an performed when on “Expert testimony court. scientific is admis Hayes v. sample. Hagerman cites blood in if the court is satisfied sible Indiana State, (Ind.Ct.App.1987), N.E.2d 332 upon principles that the scientific which the denied, test where evidence of a blood trans. testimony Id. at expert rests are reliable.”9 unrefriger- hours after the performed several 1251. (indicating a serum sample was taken ated 0.254) held admissible. level of alcohol determining In whether “the scienti clotted, sample Hayes, had In because principles upon expert fic which the testimo was unable determine the technician rehable,” 702(b), ny are Evid.R. rests level but was able to test whole blood alcohol proffered trial court lоok to whether the Hayes court alcohol level. The the serum reasonably upon “type relied evidence is of a the “fact that a scientific test concluded that Cope 703. by experts in the field.” Evid.R. subject properly if not conducted to error testimony that it presented expert land rejecting the evidence is not a reason for assign any degree of “impossible be would In a test.” Id. at 338. adduced level,” alcohol reliability to the test for blood persuasiveness Hayes, we held (r. 3382), and that the test results “obtained jury. to be determined the test was completely unreliable.” on such blood are testimony that other Given the rely upon in this experts the field would Hayes, performed Like the test the test evidence, say that the trial court we cannot Anthony’s was of the serum alcohol on blood excluding it. abused its discretion affidavit, However, in an the assistant level. laboratory performed supervisor of the Industry Custom V. Evidence of Anthony’s blood stated the test and Practice “[wjhenever laboratory our receives blood Hagеrman argues preserve it it so it testing, later we freeze (R. 3381) (em- testimony admitting reliably court erred can tested later.” be added). practice industry custom and Through no fault of the labo- construction phasis testimony regarding meaning expert Blood and ratory, protocol was not followed. Hagerman as- unfrozen un- of various contract terms. for sixteen months stored J., (Dickson, admissibility bility prerequisite to the Hopkins, at 1305 factor as a Cf. added). supreme concurring) (observing expert opinion”) (emphasis that our "rejected previously relia- had court-determined *10 958 by extrinsic evidence is Copeland’s following
serts that such ceived An- survivors ambiguous. the contract is thony’s admissible where Anthony’s spouse death. received however, not, a breach of contract This is annuity payments and life insurance from his work, In a contract for there is an case. union, weekly payments from In- the Ohio implied duty skillfully, the work care to do Commission, dustrial and other life insurance fully, and in a workmanlike manner. St. proceeds. payments from the industrial Paul Marine Ins. Co. v. Pearson Fire & commission are identified as “death benefits.” Co., 853, (Ind.Ct.App. 547 N.E.2d 857 Constr. annuity payments are identi- 1989), Negligent trans. denied. failure to do “preretirement annuity,” fied as a survivor tort, so is a as well as a breach of contract. apparently Anthony’s from union retirement (R. 2776). Hagerman account. also claims Hagerman objects The evidence to which Security payments that evidence of Social expert consisted of two witnesses and three wrongfully excluded. expert construction workers. The two wit- payments Evidence of collateral source is regarding Hagerman’s con- nesses testified prevent prevailing party admissible to in a responsibility safety, tractual for as well as personal injury wrongful or death action practice custom and in the construction in- recovering more than once from all dustry concerning covering openings. of applicable § sources. See Ind.Code 34-4- The three construction workers testified re- payments 36-1. such Proof of is admissible garding projects general that other exceptions: with three typically openings. Hager- contractor covers man contends that evidence other (A) payments of life insurance or other projects unfairly prejudicial. is irrelevant and benefits; death Copeland argues evidence is rele- (B) plain- insurance benefits for which the incorpo- vant because contract paid directly; tiff ... or practice: rates custom and “The General includes ... other Construction Contract ac- (C) payments by made the state or the recognized traditionally general tivities as ... United States that have been made 4462). (R. construction.” plaintiff compensation before trial to a as injury for the loss or for which the action persons The conduct other brought; substantially similar conditions be rele reasonableness, vant to the under the cir 34-4-36-2(1). § Ind.Code cumstances, particular of a individual’s acts payments, The life in insurance Foley, or Kellam and omissions. Walters v. benefits, dustrial commission death (1977). 199, Ind.App. Security payments clearly Social are exclud proper It to receive is therefore evidence by Highland ed statute. See Town jury may others’ conduct from which the Zerkel, 1117 (Ind.Ct.App. determine that the conduct under consider 1995), unclear, however, trans. denied. It is light ation was or of all was not reasonable object annuity payments whether the were a the circumstances. Id. The evidence result benefit, employer provided ed to an here was relevant to establish the or were accompanied Hager paid directly Anthony. standard care which This court “[ajbsent duty safety. man’s The trial recently contractual showing held that admitting did err testimon injured party] neither nor her husband [the y.10 paid directly, say for her benefits we cannot that the trial court abused its discretion in
VI. Evidence Collateral Here, excluding the evidence.” Id. there is Payments Source pay no did not for this directly, payroll benefit either deduction argues that the trial court payments in excluding erred evidence of re- reason of his labor.11 (Kirsch, J., testimony concurring 10. We do not Id. at address whether in re- Cf. 702(a). sult) (stating payment admissible under either Evid.R. 701 or for collateral source
959 order, portion tions of the which included the Instruction Judicial Notice VII. instruction, in above. quoted the tendered challenges sever Hagerman next jury trial court stated to the that the The instructing court al of the trial decisions judicial taken notice of certain court “has deny a give The decision to jury. the matters, they’re in which means that evi- to the jury largely instruction is left tendered essentially, I’ve asked the Bailiff dence and Taylor v. of the trial court. sound discretion distribute those.” The trial State, 852, (Ind.Ct.App.1994). 629 N.E.2d gave court later Instruction No. 34 as fol- court’s decision review the trial judicial has taken notice of lows: “The Court evaluating In of that discretion. abuse prior accept in this ease. You shall Orders erroneously refused a a trial court whether fact that these Orders were made as (1) instruction, whether we consider 3860). tendered (R. conclusively proved.” correctly states the the tendered instruction Hagerman argues July that because (2) law, in the whether there is evidence case, 14, the law of the 1994 order was instruction, support giving record give the tenderеd trial court was bound (3) whether the substance of the instruction portion contained a of that instruction which covered other instructions. Cliver 201(g) Rule states: order. Indiana Evidence 59, (Ind.1996). State, proceeding, “In a civil action or the court 66-67 accept jury shall instruct the as conclusive First, Hagerman argues that the tri judicially fact noticed.” con- refusing following ten al court erred comply that the trial court failed to tends dered instruction: with this rule when it refused the tendered that the Court has You are instructed instruction. law, determined, that it is as a matter refusing The not err in did through which undisputed that the hole proposed jury The Hagerman’s instruction. Copeland by Hager- Mr. fell was covered accept July was instructed to Corporation approxi- man Construction provided copies order as conclusive and was prior mately three to four weeks to the portions The trial pertinent order. has also determined accident. Court in not in- court did not abuse its discretion Corporation jury precise structing Construction in the manner by Hagerman.12 desired suffiсiently employees opening covered the plywood approximately to four three Emergency Sudden Instruction VIII. before the incident and have been weeks argues next that the trial court determine who have re- unable to gave erred when it an instruction sudden covering opening prior from the moved emergency: Copeland’s fall. to Mr. a sud- person is confronted with When This means these facts have been estab- emergency making not of his own den your lished as a matter of law for delibera- time to determine with without sufficient tion. certainty pursue, the best course 3799). (R. proposed based degree to the same person is held July instruction on the trial court’s him if judgment required as be he would summary grant judgment favor Con- Accordingly, if had time deliberation. Inc., Copeland’s Technology, both on crete care as an ordi- person exercises such complaint cross-claim. person exercise when narily prudent would trial, Hagerman requested that the During emergency, he is confronted with a similar judicial take notice of three earlier trial court negligent.
orders, including July 14 order. case, you find fi-om the evi- In this judicial Hager- notice and allowed Tony Copeland court took was confronted dence pur- emergency and that he por- with sudden man to distribute to the redacted order, pre-trial re- employee’s tion which was based on reason of labor does not benefits payment). direct gardless constitute of whether the order was law case. Therefore, whether the we need not address supported admitted at trial an instruc- *12 ordinarily of action that an safety anyone sued a course assumed duties to else who may by be affected their work. On the prudent person pursued would have when accident, day through the hole of with the same or similar emer- confronted Copeland solely Mr. was either fell gency, you may negligence then assess responsibility Hagerman or also of to him. responsibility nonparty Sater. You are nonparty further instructed that also (R. 3851). Sater that An- Hagerman asserts when contractually-assumed safety owed its thony landed on the concrete beam after Copeland through duties to Mr. if the hole falling through opening, attempt floor his Copeland part which Mr. fell was of its up or move across the beam stand day work area on the of the accident. making, his own the instruction and should (R. 3852) added). (emphasis This instruction apply. 19, January was based on the trial court’s granting Copeland’s 1995 order motion for given by The instruction partial summary judgment. That order de- court is a correct statement of the law. See Hagerman termined owed a contractual- Durbin, Stepanek v. ly-assumed safety duty Anthony on the trains, (Ind.Ct.App.1994), denied. That the day of the accident. The trial court also supported instruction is the record dowe summary judgment denied Sater’s motion for seriously questioned. not think can be An in the same order: thony through opening nearly fell a floor reasonably [T]he trier of fact could con- forty-five ground feet above the and landed through clude the hole which Mr. spread-eagle on a concrete beam some fifteen Copeland part fell was of Sater’s work emergen prime day feet below. If this is not a sudden under its contract on the of the concludes, accident. If the trier of fact so cy, we are at a loss to know what one is. No jointly Hagerman Sater and their owed topic. other instruction covered this contractually-assumed safety duties to Mr. trial court did not abuse its discretion in Copeland day on the of the accident. instructing jury emergency. on sudden determined, as a law, Hagerman definitely matter Responsibility IX. Sole Instruction Anthony duty safety, owed a and that might Sater have duty owed a Hagerman argues that the trial court safety, day on the of the accident. There- gave erred when it Instruction No. 27: fore, only prime as the two contractors in- volved, Hagerman jointly, either Sater and negligence You are instructed that alone, Hagerman duty Anthony. owed a case, duty may of care arise contract. judgment appealed. was not (2) prime The two contracts state certain Hagerman argues jury that this in by Hagerman nonpar- duties assumed jury finding Hag struction forbade the Electric, ty, safеty. Sater Inc. Fault, however, percent erman zero at fault. nonparty Sater owed these subject was not the Fault instruction. safety employees duties to each of their causation, duty, involves breach and while employee every and to each one of their only duty. the instruction addressed Based case, you subcontractors. In this are in- order, January on the trial court’s that, law, Hager- structed a matter of as the instruction which challenges contractually-assumed man all owed its correctly states the law of the case. The Copeland “solely” duties to Mr. logical on the date of the addition of the word is a combination of the trial court’s orders on accident. You are further instructed that partial summary judgment. The trial court was not relieved of of these giving did not abuse its discretion in contractually-assumed safety duties en- instruction. tering Cope- into a subcontract with Mr. employer Beasley land’s F. John Co. X. Instruction Indemnification In addition employees to their and the challenge fourth to the trial subcontractors, employees Hager- of their court’s instructions concerns Instruction man contractually- and Sater owed their No. 33: you pendently if from Crown-Corr. Crown-Corr’s Plaintiff and you find for the
If
required
indemnify Hagerman
it to
Hagerman and Crown Corr
contract
find that both
may
negligent
any degree,
whether
you
consider
if
negligent,
Crown-Corr
percent, regardless
Hager-
to indemnification.
whether
Hagerman is entitled
even one
is entitled to
ninety-nine
negligent,
find
also
even
You
man was
Hag-
you
find that
indemnification
percent.
conclude that
the trial court
negligence
for the
responsible
erman
giving
an erroneous
abused its discretion
*13
negli-
you
that the
Corr.
Crown
jury instruction.
find
If
negligence
Hagerman and the
gence
of
of
however,
conclude,
that this
We also
independent
one anoth-
are
Corr
Crown
of
jury
The
found that
error was harmless.
er,
for
Corr on
you should find
Crown
percent
was zero
at fault. Giv
Crown-Corr
for Indemnifica-
Hagerman’s Cross-Claim
can
no indemnifica
finding,
en this
there
be
tion.
the loss
not caused even
tion where
was
this in-
Hagerman argues
part by any negligent act or omission оf
misstates the law.
struction
Hagerman
that be
Crown-Corr.
asserts
Hagerman and
subcontract between
jury
first returned from delibera
cause
Crown-Corr,
upon American Institute
based
completing
form for
tion without
the verdict
edition,
A401,
Architects Document
of
Hagerman’s cross-claim for indemnification
clause,
following
included the
indemnification
Crown-Corr,
must have
from
pertinent part:
been
about
this issue. We dis
confused
law,
permitted by
To the fullest extent
probable
jury neglected
agree.
It is
that the
indemnify and hold
shall
[Crown-Corr]
fill out
verdict form be
the cross-claim
[Hagerman]
...
from and
harmless
cause,
fault, it
finding
not at
Crown-Corr
claims, damages,
ex-
against
losses and
thought
unnecessary
it
to do so.
arising
resulting
...
out of or
penses
un-
performance of
Work
[Crown-Corr’s]
Summary Judgment
XI. Denial of
only
...
to the
this Subcontract
der
on Cross-Claim
part by negli-
in whole or in
extent caused
Hagerman argues that
the trial court
gent
[Crown-Corr]
acts or omissions
motion for
denying Hagerman’s
erred in
regardless
...
whether or not
in-
cross-claim for
summary judgment
its
claim, damage,
expense is caused
loss or
Hagerman
demnity against Crown-Corr.
part by party
hereunder.
indemnified
indemnity
a matter of law
contends that
is
added).13
(R. 7028) (emphasis
not have been sub-
for the court and should
erroneously
the instruction
contends
argues that
jury.
to the
Crown-Corr
mitted
1)
jury that
indemnification:
told the
clearly
unequivocally
the contract did not
2)
being
optional;
depended upon Hagerman
indemnify Hagerman
Hager-
for
require it to
responsible
negligence,
for Crown-Corr’s
negligence.
man’s own
3)
any;
depended upon Hagerman’s and
grant or
of a
Upon review of the
denial
being independent
negligence
Crown-Corr’s
motion,
summary judgment
apply
we
of each other.
legal
as the trial court: sum-
same
standard
agree
Hagerman that
mary
appropriate
when
judgment
is
instruction was incorrect. While
fact
genuine
are no
issues of material
there
contractually
responsible
perfor
for the
judgment
moving party is entitled
and the
subcontractors,
immaterial
mance of its
it is
56(C);
Rule
as a matter of law.
Ind.Trial
“responsible”
is
for
whether
Hamilton, 657
Bay, Inc. v.
North Snow
negligence.
the word
Crown-Corr’s
Because
par-
(Ind.Ct.App.1995).
N.E.2d
may imply a
“responsible” as used here
de
ty appealing
grant
court’s
or denial
fault,
confusing.
the instruction is
gree of
summary judgment has the burden
indemnity
importantly,
clause
More
trial court’s
court that
persuading this
require
not
the contract does
negligent
decision was erroneous.
negligent, let alone
inde-
be found
indemnify Hagerman
quire
provision
that Crown-Corr
does not run afoul
13. We note that this
negligence.
§
sole
26-3-5-1 in that it does not re-
of Ind.Code
ambiguous
a contract
Whether
is
XII. Denial Motion
'of
for Setr-Off
question
is a
of law for the court.
Indiana
trial,
Following
Hagerman filed a motion
Erectors, Inc. v. Trustees
Indiana Univer
set-off, seeking
against
judg-
a credit
sity,
(Ind.Ct.App.1997).
did because the same evidence was contained the de Tomich, position of William a co-worker of Anthony’s. Although deposition the entire was contained in the record as submitted MADDEN, Appellant-Petitioner, Melvin Hagerman, with some lines struck v. court, portion we referred to was actually jury. read to the We now ad Indiana, Appellee-Respondent. STATE of dress issue on the merits. No. 40A05-9711-PC-489. Indiana specifically Evidence Rule 407 au thorizes the admission of a of evidence subse Appeals Court of Indiana. quent remedial measure offerеd when 26, June 1998. purpose negligence. other than proving Ut (Ind.Ct. Healy, v. ley Sept. Transfer Denied App.1996), trans. denied. evidence is Such ownership admissible show the defendant’s control premises that issue when genuine dispute. Welch Railroad *16 (Ind.Ct. Inc., Crossing,
App.1986). question entity of which had control opening through
over fell a principal litigation. issue This dispute was central to the court’s order
denying Sater Electric Co.’s motion for sum- order, mary judgment. In that “[ujnder separate court found that their BSU, prime contracts with respective Sater retained control over their (R. 2234). portions of the work.” The trial court then concluded: “The work area sur- rounding through Cope- the hole which Mr. fell responsi-
land was either the contractual bility Hagerman day or of Sater on the the accident.” It was this “mate- question rial of fact that require[d] denial” of summary judgment for Sater. question was no less contested at statement, During opening trial. their Hag- alleged “opened erman that Sater Electric holes, the holes [sic]. were there’s Once covered, holes belonged the holes (R.4115). Sater.” indicating The evidence openings covered the after the accident was offered show not had (‘nnt.rnl p nnprnn crq wtipn wpvp í>vp- thpv nf th