*1 HEBEL, personal representative Robert Hebel, Deceased, Richard C. (Plaintiff Below), Appellant
CONRAIL, INC., Appellee
(Defendant Below).
No. 385S81.
Supreme Court of Indiana.
March *2 safety superintend- representative,
ior Addyston, plant, Ohio after ob- ent of the serving derailment site and tank car feet, experienced as 5 from as close any from chemical fumes and discomfort necessary feel that it was to wear did not *3 appa- breathing packs air or self-contained ratus. Holland, Lawrenceburg, Douglas C. a.m., 11:00 3 members of the At about appellant. Emergency Board of Health Indiana State Stroup, Lawrenceburg, Nicholas F. John in and be- Response Team arrived Guilford Nizamoff, Raub, Indianapolis, White & monitoring presence the air for the of C. gan appellee. sample readings acrylonitrile vapors. Air Emergency Response Team by the
taken TRANSFER CIVIL PETITION TO parking ON from the lot to the tank members acrylon- presence not indicate the of car did PRENTICE,Justice. the tank vapors itrile until 20 feet east of judgment to the The evidence favorable car, readings taken over water and follows: the trial court is as of railroad chemical filled ditches between the under the tracks also cars and the culvert 22, 1977, February approximately at On (Conrail) presence chemical a.m., failed to indicate the of in Defendant's a boxcar 6:00 upon findings, Guilford, vapors. Based their heading freight train east toward opinion acryl- of the there was Indiana, team was approximately one-half derailed vapor problem and did not recom- Guilford, onitrile in punching a hole mile west mend, necessary the cir- end of a tank car behind nor feel it the lower east breathing to use self-contained cumstances 35,000 containing gallons acrylonitrile, a apparatus. chemical used in the manufac- hazardous plastics. The derailed boxcar ture of the hazardous operations officer approxi- tank car came to rest punctured company materials hired Conrail parking lot on mately 1800 feet west of a spill was also of up clean the derailment Guilford, adjacent to the the outskirts opinion that masks or self-contained tank car contents tracks. The railroad necessary breathing apparatus were north side of the rail east on the flowed nor needed. tracks, through then a culvert road south February During the afternoon lot) (located parking 1100 feet west boxcar, train, except for the derailed entire Creek; by 9:00 to Tanners the tracks under a.m., area; by removed from the Guilford was empty. tank car was almost remaining p.m., the boxcar had been 8:00 a.m., the train approximately 7:00 At also removed from the area. rerailed and dispatcher train notified Conrail's crew February Plaintiff's day, The next Shortly derailment. Indianapolis of the decedent, (Hebel), Richard C. Hebel who thereafter, procedure, pursuant to Conrail policeman, assigned to was a Conrail was supervisor of train Indianapolis Conrail's begin- derailment site work at the Guilford Chemtrek, the Bureau operation notified ending at ning p.m. day 4:00 that at Board of Health and the Explosives, State February p.m. 4:00 a.m. on At 4:10 Agency concern- Environmental Protection lot, parking Hebel February 23 ' spill. ing this chemical if he Lawrenceburg trainmaster asked the a.m., response (Hebel) he go 9:00 needed to down there and Around (trainmaster) any reason said he didn't see call, phone 3 Lawrenceburg trainmaster's owner, why do down to the the tank car Hebel would have to representatives Monsanto, proceed- arrived Guilford During site. Hebel's tour of derailment parking lot duty, he was seen at the site. Monsanto's sen- ed to the derailment on the supervisor Guilford, outskirts of that he was claiming injury as 1800 feet east of the actual derailment site. At the end of the result exposure of an at the derailment his shift at 4:00 a.m. on February Hebel site. supervisor called his and related that the On November suit, after he filed scene reasonably secure, there gave Hebel a history of alleged chemi- any hadn't been trespassers there, and that exposure cal Brooks, to Dr. as follows: he judgment, in his it didn't warrant another guarding an overturned tank car officer's coming down and relieving him. acrylonitrile; contained he had to Hebel did not sound unusual nor did he stay guard there and car; he noted a make any complaint about how he was fog-like brownish emitting emission from feeling. around the tank car and was in very close During February proximity and while to the car. Based what duty Hebel was lot, at parking him, there Hebel told it was Dr. opinion Brook's persons were no underlying Hebel's peripheral vascular overcome chemical *4 vapors; there were no chemical odors in disease was aggravated by the alleged lot; the parking there acrylonitrile was no exposure chemical which accelerated his liquid culvert, east of the closest death, November, in 1979. The doctor also vapor concentration was west of the cul- testified, on cross-examination, that it was vert, which was 1100 possible feet west park- that the progression of Hebel's ing lot. Three people, including peripheral two bull- vascular disease in 1978 and operators dozer 1979 could have occurred as it did without working at the site of the spill, had been by overcome exposure acrylonitrile. fumes and witness, Defense taken hospital to the 22nd, on the Dr. following Bright, Thomas physician a and toxicol- approximately ogist, twelve working hours of in testified symptoms that reported the immediate area of the chemical. Con- by Hebel to his doctor were inconsistent rail did have knowledge of these casualties. typical exposure a acrylonitrile. It was Bright's also Dr. opinion pro- Although Hebel later told his doctor he gression of peripheral Hebel's vascular dis- was off work at least a days few after the ease in 1978 to his death in 1979 was not "acute ending at 4:00 a.m. on incident" unusually rapid, but was a classic case of February 24, he missed no work until the disease of smoker, a diabetic not con- March 19 when he was off day. work one exposure nected with to the chemical. that, After Hebel worked for the remainder of 1977 missing work April on 23 and This action brought initially by He- October 25-26 due to 17, 12, sickness. May bel on 1978, On October Dearborn Cir- cuit Court under the 1977, Federal Employer's Hebel took physical annual exami- § Liability (FELA), required nation Act Conrail U.S.C. 51 seq. et acknowl- edged Hebel died on 1979; examining November physician and on that he 80, 1980, Plaintiff, June Hebel, had had no Robert complaint medical problems or as personal representative Hebel, since previous his last was sub- examination May stituted party plaintiff. as 1976. by jury Trial in judgment resulted
Although Conrail's primary safety rule the Defendant against personal was that Plaintiff. all injuries be immediate- appealed and the Indiana ly reported by the employee supervi- to his sor, Appeals, Court of District, supervisor Hebel's First was not notified or reversed. Conrail, Inc., Hebel v. App., Ind. aware that Hebel was claiming injury as a N.E.2d 870 (reh'g 1, 1983). denied March alleged result of an exposure chemical The case is now before us on a Petition to 28-24, February 1977, until the supervisor Transfer filed Conrail on March read filing about of Hebel's suit 1988. October, 1978. In year the 1% period be- tween the Guilford derailment and the fil- Also on March 1983, twelve railroad ing suit, of his Hebel never informed his companies operating within the State of deficiencies, cannot deter- namely that we leave to joint motion for
Indiana filed their
record,
brief, or the
support of Con-
from Plaintiff's
file Brief Amici Curiae
mine
regulations that De-
provisions of the
transfer, which motion was
petition to
rail's
violated,
not
allegedly
the issue is
ordered filed Au-
and said brief
fendant
sustained
Ap-
Apparently,
the Court
us.
before
August
the cause
On
gust
making this deter-
peals took the burden
the Petition to
argued orally both on
admirable effort
upon itself-an
mination
taken under
the merits and
Transfer and
ill
perhaps one it can
justice but
to do
advisement.
certainly
beyond
one
afford to extend
greatly hampered
We have been
duty.
the call of its
by reason of Plain
case
our review of this
granted under
is now
Transfer
assign
briefing inarticulate
tiff's
11(B)(2)(b)
inasmuch as
Appellate Rule
which, if
alleged errors
of numerous
ment
erroneously
Appeals
decided
Court of
nevertheless,
were,
pre
committed,
holding
of law in
viola
question
new
assigned
address
review. We
served for
Safety and Health Act
Occupational
tion
of our desire to
issues V and IV because
(OSHA)
as evi
regulations was admissible
appeals
wherever
the merits
reach
se,
imposing
negligence per
thus
dence of
issues exist and
justiciable
appears
actions,1
in FELA
liability
or
strict
absolute
in de
issues were addressed
these
because
opinion
of the Court
and said decision
and, in our
Appeals
by the Court of
tail
is ordered vacated.
of Appeals
erroneously.
judgment, decided
herein,
issue,
The decision
*5
LIABILITY CLAIM controlled
following quoted provi-
by the
V-STRICT
ISSUE
regulation
the
sion of the Act under which
Plaintiff,
claim,
in his
regard to this
With
adopted:
allegedly violated was
Presented For
The Issues
"Statement Of
chapter shall be con-
"Nothing in this
Trial
Review,"
the
assigns:
"Whether
supersede
any
or in
manner
strued to
evidence,
allowing
in
into
erred
Court
compensation law
any workmen's
safety
In
dffect
or to
statutes."
violations of federal
any
in
enlarge or diminish or
Argument," Plaintiff
"Summary of the
affect
statu-
manner the common law or
other
of violations
charges not that evidence
duties,
em-
or liabilities
tory rights,
that the trial court did
rejected
rather
of
but
employees
any law
ployers and
under
the federal safe-
present
him "to
not allow
diseases,
injuries,
or
respect
to
presence
to
ty standard
of]
[relative
of,
arising
or
employees
out
death of
workplace into evi-
acrylonitrile in the
of, employment." 29 U.S.C.
the course
one
differing from the
charge
dence'"-a
§
added.)
653(b)(4)(Emphasis
of issues.
statement
forth in the
set
accompanying
legislative history
The
into a
launches
argument, Plaintiff
In his
proseriptions set
OSHA also reflects
standards were
syllogism that
the OSHA
forth above.
in the work-
of workers
protection
any Federal or
him,
does not
the violation of
"The bill
including
place,
affect
laws,
compensation
or
un-
workmen's
negligence per se
state
regulations was
such
duties,
em-
Act,
or liabilities
Liability
rights,
Employer's
the Federal
der
of
In
ployers
employees under them.
directing
a
court erred
that the trial
addition,
modify
Federal
it does not
other
was the the-
issue. This
upon that
verdict
thus,
prescribing safety and health stan-
although
laws
Appeals;
of
sis of
Court
not authorize the
dards. The bill does
procedural
appears
us that because
it
to
Co.,
Ry.
Elgin,
loquitor.
J & E
about
O'Donnell
confusion
1. There has been considerable
(1949)
70 S.Ct.
94 L.Ed.
338 U.S.
statutory
under
impact
violations
good
discussion of this
contains a
historical
from the
it has resulted
FELA and much of
>
point.
"neg-
difficulty
distinguishing
various courts'
ligence"
"negligence per
Neg/i-
subject,
se" and "Absolute
from
Am.Jur.2d
Also on this
see 57
initially
ipsa
liability"
gence
even res
or strict
§
657
Secretary of Labor to assert authority
course of employment as those terms are
particular
under
this bill
§
over
working
used in
653(b)(4)
29 U.S.C.
and General
regarding
conditions
which another
§
Fed-
81-869(b).
Statutes
Thus,
the negli-
agency
eral
statutory
exercises
authority
genee per se instruction was erroneous."
prescribe
to
or enforce standards affect-
In
v. Burlington Northern
Bertholf
ing occupational safety and health." Railroad,
F.Supp.
(E.D.Wash.
402
(1970 U.S.Code Cong.
Adm.News,
1975),
action,
a FELA
the employee sought
5177, 5199) (Emphasis added.)
summary judgment where a defect
in a
This issue was addressed in Wendland v.
hoist was
proximate
cause of the acci
dent,
Ridgefield
Services, Inc.,
Const.
and violation of an
regulation
OSHA
Ct.
requiring regular inspections 439 A.2d
as follows:
equip
such
ment
charged.
proceed,
then,
held:
""We
to
determine
plaintiff,
whether
having
.
"Further,
established
plaintiff's argument would fail
a violation of a regulation, was entitled
for the additional reason that section
4(b)(4)
§
OSHA,
jury
to a
instruction
negligence
per
U.S.C.
se. Neither party
plaintiff
has briefed
this issue.
relies to find an employer
Nevertheless, we must address
violation of
safety statute,
expressly
it be-
ignore
cause to
ignore
operation
would be to
limits the
regulations
OSHA
to render
clear, plain statutory
inapplicable
them
to FELA
directive.
General
§ 81-369(b)
Statutes
provides
cases:
'[nljothing in
chapter
this
shall be con-
'Nothing in
chapter
shall be con-
supersede
strued to
strued to supersede or in any manner
or in any manner
any
affect
compensation
workers'
law or
affect any workmen's compensation
enlarge,
diminish or affect in any
man-
enlarge
law or to
or diminish or affect
ner common law or statutory
rights,
any other manner
the common law
duties, or liabilities of employers
or statutory rights, duties,
or em-
or liabilities
ployees,
any
under
employers
law with
respect
employees
any
injuries, diseases or death
employees
law with
respect
injuries,
diseases,
arising out of and in
or
death of employees
of,
course of
arising
em-
out
*6
ployment.'
of,
Federal
or in
law
employment'"
contains a simi-
course
jury in this case is legally correct when
negligence per se
measured
case. Thus we must decide whether the
to the
Act, which
lar
[Footnote
L
safety
provision.
Occupational
against
[*]
omitted].
is the
regulations at issue in this Cir.1979). An
#
29 U.S.C.
enabling
instruction
these limiting statutes.
Both
Safety and Health
[*]
legislation for
statutes
given
#
§
658(b)(4).
to the
refer
#
Jones
held
applicable
Service,
rendering
issue was whether
913, (E.D.La.1977)
Another
F.Supp.
that the
Act,
Inc. v.
FELA
to crew
41 Stat.
holding
at 173.
specific
action
Gulf
applicable
aff
OSHA
members,
is National Marine
wording of the Jones
Oil
'd.,
brought
lation prox injuries employee to the employer a verdict for the court directed The trial question appears strict liabil- upon the thereby. imately caused Defendant Kernan only before us analogous go jury to the case to to the to be the case ity permitted but jury Act and the negligence, under the Jones upon it arose issue of in that of a the violation resulted from injury upon for Defendant returned a verdict There, appears to us that Regulation. Although the simi issue. Guard Coast sought rejection of the strict has review was whether end. The issue larities of a the violation affected his liability would arise from standards as it of OSHA liability, purpose other two statements designed claim of strict regulation might be viewed as argument from his na injuries of the protect against than to standards were presenting a claim that the regulation The resultant one. ture of the negligence, even admissible as evidence ships to be navigational lights on required se; negligence per if not as evidence of eight feet above height of minimum at a Ratliff, concurring opinion Judge in a brief maximize purpose Its the water. Court of of the decision in the result others, against colli guard as a visibility by agreed that the standards were Appeals, tugboat his life on a A seaman lost sion. purpose. for that evidence admissible lamp on open-flame kerosene when an The express opinion that matter. We ignited inflam being towed a scow board appear to in the do not be OSHA standards lying an accumulation vapors above mable therefore, We, do not know the record. surface of spread over the petroleum of the chemical level of concentration three lamp approximately water. care re- they permit reasonable before rather than surface the water's feet above precautions to be taken. quires exposure by the Coast height established at informed us of the has Plaintiff Neither Following line of Regulation. Guard actually present at of concentration levels cases, liability had strict wherein FELA there- alleged exposure. It of the the time Safety of the imposed for violation been to find error appears us that fore Inspection the Boiler Act and Appliance require speculate us to question would injuries had Act, notwithstanding that the of the Standards provisions upon both the regulations had type the of the not been acrylonitrile concentration upon the Supreme prevent, intended to been present. decision, held, upon an Court, in a 5-4 "hu shifting the policy of evolving public ISSUE IV "inevitable deaths man overhead" Appeals also held that employment" The Court industrial injuries of of Defendant's into evidence admission purpose industry, that the from workers *7 error, holding I reversible Exhibit was not relevant. regulation was of the disagree. The exhibit we also with which in Ker- distinguishing factor Clearly the reports relative to He- medical consisted of provision, the OSHA absence of nan is the file and reflec from Defendant's bel taken any construction proscribing quoted, above from 1957 physical condition tive of Hebel's com- ... enlarge diminish or "to or affect 17, are thwarted through May 1977. We duties, or lia- statutory rights, mon law or inadequate by an of this issue our review employees under employers bilities objection; grounds for the of the statement any law." er and, indeed, claims that the Defendant ror, where absolute of the exhibit any, have found no case if in the admission We objection dis imposed for violation for want of an liability has been was waived that against a claim regulation it legal principle upon an OSHA closing the prohibits express language of OSHA premised. the From our review record, however, appear that the liability. it does the creation proffered Defendant the exhibits under the issues. It is insufficient merely state business records exception to the hearsay that requested instruction, which has rule, and we accept, arguendo, denied, been the Plain- correctly states the law and objection: tiff's "We just will make our that certain other instructions were in- objection that witness identifying [the the sufficient to cover points the contained in does not exhibit] know who prepared the the refused instruction. This court is forms" as a objection. sufficient We are entitled presented to have to it in more also of the opinion that the foundation laid than summary fashion the why reasons did not meet the "business excep- record the action of the trial court has preju- requirements tion" State, Wells (1970) v. appellant." diced the 608, 254 Ind. 261 N.E.2d in that the State, (1951) Gilmore v. Ind. cireumstances of preparation of some of 98 N.E.2d 681. the records comprising the exhibit were not Before one is such as entitled to a would rever assure their reliability. sal, he must Rather, affirmatively they show were simply there documents filed was error prejudicial to his among the substantial Defendant's records in the ordi- rights. court, nary This course of its review business. will The trial search the record to grounds find did err if rever admitted the entire exhibit premise sal. Akins Ind., its entire quali- contents N.E.2d fied under the exception. We are also handicapped theory of Plaintiff's Plaintiff's case was not failure to advise us in argument of how Hebel was in prior excellent health admission of the exhibit him, harmed exposure. other chemical Rather, it was that than as follows: he was suffering from prob- various health lems, "The Plaintiff significantly was irreparably diabetes, dam- hypertension aged as jury arteriosclerosis which had been severe- given physical reports without (sic) ly aggravated Plaintiff having exposure and that his an opportunity of placing Dr. worsening Todd condition, or the bypass accelerated other doctors under oath explain surgery and ultimate death had been the basis of reports proximate cross-examina- result of the exposure. (Appellant's tion." 34.) p. Brief Brooks, Dr. Plaintiff's witness, medical replied Defendant to this argument as testified concerning the symptoms classic follows: acrylonitrile exposure. "The symptoms exhibit impeach did "[The the credibili- nausea, vomiting, headache, de- ty of the Hebels since they contended appetite, creased perhaps even the short- Richard Hebel was in excellent health ness breath, are the symptoms classical before February 28, 1977, poor of acrylonitrile toxicity." (R. 303.) at health thereafter." (Appellee's p. Brief He also testified as to Hebel's state- 21.) ments to him made during his examination And responded: had November which were that parties "The agreement are in that the he had exposed been to the chemical and admission of Exhibit 'T' is of such a deci- that he developed the aforementioned sive nature in this [Appellee case p. Brief symptoms almost immediately thereafter. that the improper 21] admission of this "He then after so, twelve hours or fin- requires exhibit reversal." (Appellant's ished his work and he developed symp- *8 Reply p. 19.) Brief toms of a stuffy nose and he noted a In Gilmore v. we stated: decrease in appetite. his He then devel- "Appellant's original brief should not oped is, nausea-that feeling sick to his only present the issues to be decided stomach. He developed a headache and upon appeal, but it should be of material he developed shortness of breath. He assistance to the court in deciding those then returned home and after returning 1977, follow- three months which was but symp- this was the also-and he home exposure. ing acrylonitrile nausea, the initially related: I
toms headache, were and breath of shortness forms, of including the one report The shift while of his work the end right at parts. upper The in two May are place. He went at work still be was the examinee page the identifies portion of and vom- developed nausea he home and questions to be twenty-seven presents and making by "yes" continued, stuffy nose him or "no'" by answered iting, headache got continued, portion of breath the the shortness mark. That a check form examinee, wheezing but worse, developed signature some he bears responses case, All The Hebel. He had no fever. cough. not much day among negative, next and he in the symptoms continued form were following: questions were the those he of breath when particularly short climbing himself, as such exerted examination," (May your last "Since a headache to have He continued stairs. any physical or men- 1976) you do know of time, pain noted he for the first and then your abil- might restrict tal condition Now, few the next over in his calves. you had: ity Have to work? decreased, the short- appetite his weeks illnesses, injuries? operations or Any appetite decreased ness of breath-or Fainting or dizziness? continue, of breath contin- the shortness cough? or of breath Shortness of breath with ued, still short he was digestion or bowels? Trouble exertion, legs and the pain his Numbness, paralysis? weakness or and dizziness and the weakness headache fatigue? or Weakness symptoms persisted then continued. hip or knee? Trouble with and he noted next few months over the Stiff, joints or mus- painful or swollen legs pain in his but only the not cles? having difficulty control- weakness statements The aforementioned occasionally he would ling legs and his con physical his relevant Hebel were legs his felt to me that fall. He stated credibility times and to the at critical dition He had stepping into a hole. he was like testimony of his widow weight of the appetite continued control. His no actual They were Dr. Brooks. son and of in his a decrease poor and he noted to be a decedent as the admissions admissible 802.) (R. pp. functions." sexual Ec representative.2 against personal as son also testified widow and Hebel's 174; (1874) 48 Ind. kert, Triplett, Admr. v. having and exhibited suffered to Hebel's Admr., Ind. Leonard, Slade symptoms be- aforementioned many of the Inc. v. Gar Equipment, Uebelhack expo- immediately following his ginning Brothers, Inc., (1980) Ind.App., 408 rett sure. EvinenNcr 31A C.J.S. N.E.2d See § records question portion Because the of the exhibit 39%. review Our admissible, albeit Hebel were signed by that could have document but one reveals by argued one other than the case-the a reason damaging to Plaintiff's been for physical nothing examina- we Hebel's routine and because Defendant, record of find portions in the May Dr. Todd made on report by a tion harmful party making the does the unavailable. Nor undoubtedly to ac- more desirable is 2. "But it distinctions, knowledge personal adopted need to have had cept admission the traditional clearly Accordingly, Wigmore, the line between when and to draw the fact admitted. view, exceptions. the admis- party's predecessor Under this party, two or a admission of without satis- party-opponent come in of a sions sought be introduced, it should interest, to be requirements declarations fying any requirements tested as and offered not have against admissions need interest. The admissions, parties' not those for declarations though it will against made, interest when been omitted). (footnotes against McCor- interest." party they mak- usually happen were. The Evipence (1972). MICKON § is, seldom ing be, the admission need
G61 the exhibit that were hearsay and should his contentions and a clear showing of how rejected, have been the issues and the we no reversible contentions supporting find error this issue. them particular relate to the facts of the case. Without such assistance we issues, are Other un- as assigned by Plaintiff's able to determine whether an brief omitted his in- "Statement the Issues struction required was under the Presented for evidence Review" and not considered or whether harm was likely to by the have result- Court of Appeals, are as follows: ed to the complaining party." "(1) Whether the Trial Court erred in not allowing Plaintiff deposition not allowing tion of Dr. Brooks hearing; trial due to violations of the Indiana Trial Rules regarding discovery; with the jury during deliberations; instructions all the exhibits and instructing sending (7) Whether (6) Whether (8) Whether Plaintiff was denied a fair (2) Whether # #k of Dr. the October Leave the Trial Court erred in the Trial Court erred in jury; # Brooks; Trial to take the ruling Court [*] prior erred in rebuttal deposi- # to a Apparently Plaintiff, wished to depose the witness further. Not lished en many months previously and 22.) tiff's ers was this trial upon but six hours notice to Defend made during trial ant and in "not allowing Plaintiff taken a witness Brooks al court's deposition This Brief to denied. Supplement" witness' ruling read into p. Issue VI claims error in the tri 40) at quashing (Plaintiff's in response to his motion any deposition labeled "Motion for evidence at the trial. at a very other which motion he av few time{,]" (Plain Reply had been tak deposition days late to retake Brief before date, pub p. do we find no (8) error in the court's Whether misbehavior of De- ruling alleged ruling upon fendant issues, Defendant's these counsel deprived but Plaintiff again has made attempt trial; to Plaintiff of a fair show how he was harmed. There has been (9) Whether the verdict is contrary to no showing of what he proposed present to the evidence."
by additional testimony from the witness. provide To I, the basis VI, reversal, ISSUES VH excluded testimony appear must in the record. This I, Issues VI and VII have been inade- done making an prove. offer to quately briefed and will not be considered. Gur ley State, (1976) v. Ind. Appellate 8.3(A)(7) Rule 16, 20; N.E.2d Chatman Issue I claims error in the refusal of 531, 538; 263 Ind. 334 N.E.2d the trial give four of Plaintiff's We also note a self contradiction in re- tendered final However, instructions. gard to question. Although Plaintiff brief present does not us with a sufficient argues at page 40 of his brief that "The statement of the evidence and supporting Plaintiff greatly prejudiced by the citations to the us, record to enable act," Court's on the preceding page he ar- reasonable effort diligence upon our gued that the desired additional testimony part, comprehend the context in which was, "just clarify peripherial some the instructions were Rather, tendered. as points." (Plaintiff's p. 39.) Brief urged by Defendant, Plaintiff merely has presented us copy with a of the instruc Regarding Issue on another occasion VIL tions, general statement of the theory of trial, during gave notice to De- case, general statements of legal princi fendant for an deposition additional ples and his evidence, version of the with Plaintiff's witness Brooks. proposed This out citations to the Appellate record. Rule deposition was labeled a deposi- "rebuttal requires 8.8 Appellant arguments to tion," con and apparently was for purpose parts tain those of the record of rebutting testimony given by defense support
662 by reason of seeks reversal Plaintiff also court, Defend- The trial Bright. witness tardy comply awith failure to Defendant's Again, motion, notice. quashed the ant's produce certain to Defendant request for issue, as Plaintiff address need not we witness defense upon which documents showing of harm. no has made predicated. testimony be would Bright's two made but request was Apparently III, II, VIH ISSUES was no motion trial and prior to weeks con- cannot be II, VIII III and Issues response period 80-day to shorten made error, pre- not any, if was sidered, because 34(B). Addi- by Trial Rule anticipated as trial in the action appropriate served to addressed motion was tionally, no in-trial court. pro- He comply. to failure Defendant's testimony, without Bright's to allow ceeded ILI, assigns error Plaintiff By Issue him, with- cross-examine objection, and to exhibits and having sent in the court's Ind. Pub. v. N. Chustak protest. out See it retired jury when with instructions 394, 390, 288 Co., (1972) Ind. 259 Serv. However, re the record deliberations. for 149, 152. N.E.2d having action to such objection no veals trial; action is men- hence such of the above regard to both made at the With been Presentation for review. error, again not available be noted it can claims of tioned way time, by the first assignment, for showing how this made Plaintiff has errors was correct State, to the motion 429 v. Akins he harmed. State, (1973) Ind. 260 timely. Taylor v. at 286. N.E.2d 608-609, 600, cert. 278, 264, N.E.2d 295 377, IX 1012, 38 ISSUE S.Ct. 94 denied, 414 U.S. (1978) State, 268 250; v. L.Ed.2d Gosnell assignment, Plaintiff Under 472; 471, McMi 429, 431, N.E.2d 376 Ind. contrary to being as challenges the verdict 245, 241, State, (1973) Ind. 260 noway v. 59(A)(4). As Rule Trial the evidence State, 805; 803, v. however, Barnes Defendant, he is 294 N.E.2d out pointed 617, 674, 675, 266 N.E.2d (1971) Ind. 255 negative judgment, appealing from 618. nothing for presents assignment an such assign Considering the appeal. review III, has been By Issue error judgment charge that as a ment De permitted court that the assigned in immediately law, note contrary to we testify Plain over Kirk Witness fense regard to in conflict the evidence name had the witness' objection tiff's alleged negligence, the alleged Defendant's list of upon Defendant's included not been expo Plaintiff's between relation causal response to dis provided witnesses death, toxic chemical to the sure President was Vice The witness covery. such he suffered to whether and even as Materials, Inc., the Operations of O.H. for had the burden Plaintiff exposure. by De employed had been company which proof. following the up the site clean fendant negative years pri- reverse a will Two and one-half This Court spill. chemical law, only being contrary to Plain responded to verdict, as trial, Defendant or to and when conflict is without a list of witnesses the evidence request tiff's trial and the one conclusion to but others, "Employees leads listed, many among opposite conclusion. an Inc., reached Materials, Find- of O.H. and Officers 517, 508, (1963) 243 Ind. v. request Warren made no ley, Ohio." rel., 108, 112; Flaugh regarding ex State information 188 N.E.2d particular more (1948) 77 226 Ind. officers, Rogers, v. er employees identity of such Smithers, (1971) 596; State requested no N.E.2d surprise and claim of made no N.E.2d 269 Ind. 256 permit error see no We continuance. Kain, Ind. Also, Bailey v. see cir testify under such witness ting the denied) (transfer N.E.2d 486 App. cumstances. Harvey anp and 4 Appeals TownsEND INDIANA case, did in this such appellate Prac- TIcE 185 regarding the difference in the tribunal should be accorded the discretion positions of the trial court appel- *11 go to then ahead and proper make a resolu- late respect court with to motions tion of the issue on its merits on the basis ad- dressed to the correctness of the verdict of that determination. I see good no rea- under the evidence. son permit not to done, particu- be larly appellee where the By Reply Brief, his felt no impinge- attempt has ment from the lack of an offer. position And I ed to shift upon his in issue persuade effort certainly us to reweigh good see the no evi reason this court dence, citing transfer nullify cases wherein we court of appeals have ac knowledged that a opinion consideration of weight went so far as to actually accurately identify credibility by the the proof. reviewing absent court is On the merits of sometimes necessary ruling, the agree proper I to a determi Judge Ratliff, nation of whether that the OSHA regulations error that has been found likely to have harmed appel the regarding exposure levels for acrylonitrile, lant, were admissible as evidence of negligence Miller v. Ind., N.E.2d 1113 and cases there cited. How that it was error to exclude evidence of ever, this is not such a case. them and their violation the defendants. We find no reversible error. judg- The I likewise agree cannot with the majority ment of the trial court is affirmed. opinion wherein places a burden on the plaintiff below to show exact levels of con- GIVAN, C.J., and HUNTER and PIVAR- centration dangerous molecules in the NIK, JJ., concur. air at precise the time exposure. That is an impossible burden and entirely unrealis- DeBRULER, J., dissents with opinion. requirement tic. That would limit recovery DeBRULER, Justice, dissenting. to situations where constant monitoring of requirement The of an proof offer of is the workplace taking place at the time often based the need to specifically exposure. occurs, That seldom even in a identify the material excluded spill case. The best that is ordinarily avail- ruling, court's provide and to a basis for able is circumstantial evidence of levels appellate evaluations of the harm from er- shown by periodic sampling, and the senses roneous exclusion to rights. substantial sight smell and persons and taste of Marposon (1972), State 259 Ind. workplace. Here, N.E.2d 857. uncommon, as is not Furthermore, I agree cannot that Issue I appellee does not contend in its answer cannot be considered because of inadequate brief that there compliance was no with the briefing. plaintiff's rejected instruc- requirement of an proof, offer of and thus tions verbatim; are set out purpose their is appellate is unwittingly drawn described; legal their given; sources are into in-depth an research of the merits of and the harm from the rulings court's issue to find at point some in the light demonstrated of the record. The investigation, often after considerable ex- briefing is well within tolerable limits. penditure effort, of time and that no offer proof was made. In such While there situations the is more negligible than sup- parties appeal port are proposition satisfied with the the issues identification of the were fairly excluded resolved, evidence to be tried I per- am found in the record. When such a situation suaded to vote for a permit new trial to oceurs, regulations appellate does de- OSHA to have their sway with tribunal termine, through an accurate and rational trier of fact. There is some indication process judicial notice, this record akin to industry exact standards were nature of that which would have been in stringent less than the standards proof, omitted offer of as the Court of regulations. OSHA