*1 G3 HANAS, Appellant Walter
(Defendant Below),
Ronald RASMUSSEN and Linda Ras- (Plaintiffs
mussen, Below). Appellees
No. 3-185A19.
Court of Appeals Indiana,
Third District.
Oct. *2 Bradley, Gary, hppellees.
Hilbert L. for STATON, Presiding Judge. appeals jury Walter Hanas from a ver- dict rendered favor of Ronald Rasmus- appeal: sen. He raises four issues on (1) Whether the trial court erred in re- fusing grant Hanas's motion for evidence; judgment on the (2) jury's Whether verdict was weight of the evidence law; (8) properly Whether the trial court re- fused certain of in- Hanas's tendered structions; and, (4) damages Whether the award of outrageous improperly moti- vated.
Affirmed. Rasmussen, firefighter Ronald
Private Hammond, Indiana, city for the suffered injury a head as a result of a fall from the fire truck he back as and his unit responded emergency Engineer to an call. O'pinker driving Ronald Captain Walter Hanas was seated beside him in the cab. brought against O'pink-
Rasmussen er, Hanas, mayor Hammond, and the city city mayor of Hammond. The were dismissed as defendants. After the trial, jury conclusion of a a verdict was rendered Rasmussen and Ha- nas, O'pinker and for Rasmus- appeals. sen. Hanas I.
Judgment of the Evidence
reviewing
the denial of a motion
judgment
on the evidence
look
we
to the evidence and reasonable
inferences
drawn therefrom most
favorable
to the
non-moving party. Farm Bureau Ins. Co.
v. Crabtree
1220, 1225;
Searcy
Manganhas
143. Hanas
Kirschner,
Galvin, Jr.,
Frank J.
Eric L.
Galvin,
Kirschner, Hammond,
claims the
showed that
there
Stalmack &
appellant.
duty
no
on his
to look out for Rasmus
sen.
in Hanas's own testimony Rozwarski, because he occasionally drove
he
having
admitted to
under the
trucks,
fire
would have known whether the
regulations
rules and
privates
watch for
training was adequate.
boarding the rear of the truck. The trial
There is no allegation of
court did
incom
not err in denying his motion for
petence of
here,
the driver
nor
there
evidence on
ground.
*3
allegation of a defect in the fire truck.
argues
Hanas further
that Rasmus
is,
There
fact,
nothing which can be
sen was contributorily negligent and as
considered an open and obvious defect.
sumed the risk of his injury as a matter of
argument
Hanas's
goes
straight
to
contrib
law.
opines that,
Hanas
according to the
utory negligence-that Rasmussen acted
testimony of
eyewitness,
Rasmussen at
unreasonably in attempting to board a mov
tempted to board the fire
pulled
truck as it
ing fire truck. The evidence was in conflict
away. However, Rasmussen testified that
point,
on this
above,
as noted
pulled
the truck
away just as he boarded it.
on the evidence would not have
prop
been
Where there is conflicting evidence, judg
'
er.
ment on the evidence is inappropriate.
Also,
Farm Bureau Ins.
Crabtree,
points
Co. v.
Hanas
id.
to
evidence in the
record that
it was raining and the fire
goes
Hanas
on to assert
truck
sitting
outside in the rain. How-
risk of injury was assumed because the
ever,
there is no evidence on how the rain
open
hazard was
and obvious. See Law v.
had
affected the fire
or whether
Delta,
Inc., (1984),
Yukon
677,
458 N.E.2d
there was
risk
slipping
off the back
679, reh. denied. A defect must be hidden
as a
rain,
result of the
or whether
such
and unobservable,
not
obvious,
condition was
Therefore,
observable.
there
for recovery to be
Co.,
allowed. Bemis
was no evidence supporting
argument
(1981),
Inc. v.
Ind.,
Rubush
427 N.E.2d
ground
as a
for granting judgment on the
1058, 1061. Otherwise there
duty
is no
to
evidence.
warn if the defect
is observable.
Therefore, the danger Hanas claims to be
addition,
cites Estes v.
open and obvious must be observable. Ha- Hancock County
(1972),
Bank
259 Ind.
nas also cites City
South Bend v. Estate
542,
728,
proposition
Rozwarski
App.,
Ind.
that, as the driver had not been found
19, as precluding a
one fireman
liable for
injury,
Rasmussen's
Hanas can
against another
alleged
negligence dur- not be
Estes, however,
found liable.
only
img an emergency run
based on the
holds this to be true if the sole basis for
rule.
liability of
employer
is the action of the
Rogswarski
inapplicable.
employee.
545,
for these properly judgment on the evidence was
granted. II. Instructions
IL. Hanas also contends that the trial Jury's Verdict refusing give court erred three of his jury's Hanas contends that the ver tendered instructions.2 On review of a tri contrary to law and the dict was al court's refusal a tendered in reviewing trial. as adduced at When struction, we must determine: whether claim that a verdict was correctly tendered instruction states law, set aside the verdict if it is we law; whether there was evidence on the *4 evidence, against the if there is a total lack instruction; support giving record to the contrary if it of or is to uncontra- evidence, and, the whether substance of the instruc dicted evidence. Johnston v. Brown adequately by tion was covered other in (1984), Ind.App., N.E.2d 468 601. We given. structions which were Stein reweigh judge not the or will ered- (1985), 52, 58, Yung Ind.App., 475 N.E.2d witnesses, ibility only of but determine if reh. denied. the verdict is sustained substantial evi following Hanas tendered the in probative dence of value. contributory negligence: struction on point on Hanas's contentions you "If proximate find that the cause essentially are the same as those raised plaintiff's injuries negli- of the was his jury above. Hanas contends that the gence attempting in jump moving to on a contributory negligence should have found engine, plaintiff's fire then the contrib- law, as a matter of and that the evidence utory negligence recovery would his bar supported finding contributory negli of against all defendants." gence. First we note that the evidence was gave following The trial instead the court in contributory negligence, conflict on instruction: reweigh conflicting we will not evidence. question contributory negli- "'The of Johnson, Second, supra. argues Hanas genee part plaintiff of the is an that as a matter of law Rasmussen was plaintiff issue in this case. If guilty contributorily negligent danger in that the proximately that contribut- and obvious. We discussed (injury) (damage) plain- ed to then his why above the rule does though tiff cannot recover even the de- case, apply in this and we do not find may negligent." fendant have been the verdict to law. Hanas also raises the fellow-servant doctrine and prov- The defendant has the burden Estes, the rule in supra. ing by preponderance announced These of the evidence addition, 27, 32, jury engaged 1. Hanas claims the in We N.E. 33. also note that Hanas made affidavit, By attorney misconduct. Hanas's objection no on the record at the time of the jury claimed the foreman informed incident, the court alleged polled jury and that Hanas jury that the found none of the defendants lia- when the verdict was returned and made no ble but wanted Rasmussen to recover for his objection at that time. injuries, why they which is found Ha- nas. counsel Rasmussen filed an 2. Rasmussen contends that Hanas has waived swearing colloquy place. affidavit no such took by failing object this issue to the trial court's The law in is that the trial Indiana court's deci- give refusal the tendered instructions. How- presumed sion is correct where misconduct ever, tendering of an instruction automati- and tried before the court affidavit cally gives tendering party objection if Stroup counter-affidavit. v. Graham is refused. instruction Duchane v. Johnson 194, 195, 849, 850; (1909), 173 Ind. 89 N.E. 400 N.E.2d 193, 196. 67, 82, Stevens v. Leonard 154 Ind. plaintiff guilty negli- of such trial court did not err in refusing gence.... these tendered instructions. Negligence, either on the IV. plaintiff defendant, or the is the failure to do what a reasonable careful pru- Damages person dent would have done under the Hanas contends that the jury circumstances, same or like doing or the damages award of was not supported by thing some which a reasonable careful the evidence. The determination of dam prudent person would not have done ages jury question, is a and on appeal, we under the same or cireumstances; like only look to the evidence and inferences words, other negligence is the failure to therefrom which support the damages exercise reasonable or ordinary care." awarded. Posey County v. Chamness The trial court's clearly instructions cover the substance of Hanas's tendered instruc- Specifically, argues that the tion. The difference lies in Hanas's testimony Arshad, of Dr. psychiatrist specific facts, recitation of which he argued who Rasmussen, testified for was not cred closing his remarks to jury. There ible or enough reliable to establish the ba was no error committed here. sis for a damage award. Hanas would Hanas also tendered the following rather have us believe that the psychologist covering instructions and doctors who testified for him were *5 danger rule and the fellow-servant doc more credible in analysis their of Rasmus trine: sen's ailment. Hanas does not challenge person "A that engages in activity qualifications the expertise of Dr. Ar- with the knowledge that he exposing shad, nor did he do so at the trial court. himself to and danger obvious Hanas essentially would have us believe can hardly regarded be as reasonable or the testimony of all experts his ignore prudent. He can be negli- considered testimony the of Dr. Arshad. This would gent. Onee plaintiff the is found to be violate our standard of Therefore, review. "contributorily negligent, right his to re- we will not reverse damage the award. covery is cut your off and verdict must We affirm. be for the defendants. * * * # * * GARRARD, J., in part concurs and con- curs in part result in opinion. with You, the jury, are instructed that an employee cannot recover from his em- HOFFMAN, J., dissents opinion. with ployer injuries received because of GARRARD, Judge, concurring part in the of fellow servants. If concurring in part. result in you find that the negligence of either Mr. I concur with the majority except as to O'Pinker or Mr. Hanas was the cause of its treatment of Hanas' tendered instruc- the injury to plaintiff the and that the concerning open tions danger obvious plaintiff as well as the said defendants and fellow-servant doctrine. Concerning working were for the City Hammond, instructions, those I concur in result. you then are instructed that the Plaintiff cannot It any recover from was not error of the to refuse defend- the ants." danger instruction because its con- tents adequately were by covered the As our concerning discussion Hanas's mo- court's instruction on contributory negli- tion judgment indicates, gence. we do not find sufficient sup- evidence or port in applying the law for either the It was not error to refuse the fellow- danger rule or the fellow-serv- servant instruction because it did not cor- ant doctrine rectly state the law. The fellow-servant Therefore, in this case. the
G8 employer's applies by to an The result is not altered the Rasmus- doctrine liability upon respondeat specific the doctrine of su- sens' assertion that Hanas owed a based perior. personal liability boarding on It does not bar observe firemen the negligent safety purposes. servant. part fellow The action is upon perform based failure (5th Ed.) Keeton on Torts See Prosser & scope employ- duties within the pp. 571-72. City ment with the In of Hammond. order to avoid the dictates of IND.CODE 34-4- § HOFFMAN, Judge, dissenting. 16.5-5(a), the conduct on the of Hanas 34-4-16.5-5(a) I dissent. IND.CODE § outrageous would have had to have been so states that rendered with "[a] beyond scope employ- that it was of his respect gov- a settlement made to or See, Columbus, City ment. Jacobs v. entity an action ernmental bars etc. against employee con- claimant whose 1258-1262. The Rasmussens made no such resulting claim gave duct rise to the allegation. judgment or settlement." dismissing The trial court erred Several decisions make clear that the suit against governmen- the suit the individual employees the individual in the employees along governmental tal with the present case was barred once the claim unit. governmental entity was con cluded for reason. Burks v. Boler (1981), Ind., 887, 889,
jack our
Supreme stated: Court language plain
"The of the statute is
unambiguous. governmental If a em-
ployee's gives conduct rise a claim in employing governmental
tort entity, any "judgment rendered with re- HERBERT, Jerry T. *6 spect governmental entity, to the Defendant-Appellant, governmental 'settlement' which the enti- v. executes, ty bars action employee." Indiana, Plaintiff-Appellee. of STATE also, County See Bd. Com'rs Cass of No. 1-785A185. v. Nevitt 333, (plaintiff's govern- 889 removal Indiana, Appeals Court of entity mental from suit constituted a First District. pursuant IND.CODE Oct. 1985. 34-4-16.5-5(a) barring suit § governmental employee);
Teague Ind.App., v. Boone 442 (failure
N.E.2d 1119 notice of against employee
claim bars as governmental entity);
well as
Coghill Badger (IND.CODE
N.E.2d 34-4- §
16.5-5(a) gov- bars an action employee summary
ernmental when
judgment granted political for the sub-
division on the basis of failure to com-
ply requirements with notice Act).
Tort Claims