*1
281
than the
cases,
a different issue
which is
emotional
that Mr. Goad's
To the extent
opinion
bodily one now before us.
impact
of
arose from
harm
Hartford
not from
itself from several
distinguished
him and
sustained
injury
injuries sus-
us more close
witnessing
personal
The case now before
cases.
Dianna, the Allstate
by his wife
on the facts and
ly
tained
resembles those cases
for a
provide
would
distinguished
of insurance
them
policy
issues
Hartford
liability separate
limit of
per-person
See Blockbuster
than it does Hartford.
Dianna
applicable
Inc.,
the limit
Video,
from
145
Corp. v. McComb
Entm't
claim.
Goad's
(M.D.La.1992);
v. Fire
F.R.D. 402
Silva
(D.Mont.1986);
in the trial
importantly,
Exch.,
This case should
juris
majority cites from other
cases the
have concluded that
where courts
dictions
"fairly
challenge to a claim as
an insurer's
necessarily give rise to
debatable" did
SCHOOL
LAPORTE COMMUNITY
regardless
claims
a bad-faith tort
CORPORATION, Appellant,
to fact
"fairly
referred
whether
debatable"
Bureau
Bellville v. Farm
E.g.,
or law.
v.
(Iowa 2005);
Co.,
privilege.
Inc. v.
Group,
Services
Financial
ford
Board,
County Park and Recreation
Lake
ad
(Ind.Ct.App.1999),
ria individually Rosales and as the parent guardian and natural of Juan Loera. affirm in part, part, We reverse in and remand.
Issues issues,
The School raises four which we restate as follows: I. whether the trial court *4 expert admitted an witness's testi- mony; II. whether trial denied the School's motion for judgment on the evidence on the negligence; issue of III. whether the trial court properly granted judg- Rosales's motion for ment on the evidence on the issue contributory negligence; and IV. whether the trial court properly jury regarding neg- instructed the ligence.
Facts ("Hail Hailmann Elementary School mann") part is of the LaPorte Community ("School"). Corporation School Indiana State regulations Board of Education re quired prepare the School to an emergen- ey preparedness plan and crisis interven 4-1.5-7, tion plan. See 511 I.A.C. T.A.C.6.1-2-2.5. Hailmann's Safe Schools Plan Emergency Crisis Intervention Brown, Kelley, William H. Darla S. Kel- ("Plan") required the school nurse to de Brown, IN, ley Belcher & Bloomington, velop team, and coordinate a first aid coor Attorneys for Appellant. dinate an annual CPR first aid train Allen, Brown, Kenneth J. D. Robert session, ing provide a list CPR Associates, P.C., Kenneth Allen & J. Val- trained principal, individuals to the Bar IN, paraiso, Attorneys for Appellee. 2006, bara In Maitland. Hailmann shared nurse, a school Huskey, Karen with anoth OPINION er elementary school. Prior to September BARNES, Judge. 2006, Huskey had never seen the School's Summary Case Plan and Maitland had never talked to her Community The LaPorte Corpo- about the Plan or training. CPR Prior to appeals ration a in favor of Ma- September Huskey had not coordi- mouth and throat. An- team, sweeps annual of Juan's coordinated a first aid nated Hailmann, off the floor prepared picked up a teacher Juan at or other training CPR at Hail- maneuver on him trained individuals and did the Heimlich of CPR list other assigned to the Huskey police police was officer arrived. The mann. until of these day on the elementary school unsuccessfully attempted stomach officer compressions did chest thrusts and events. until the ambulance arrived. Para- Juan Loera was Juan September On Jeff Koon found that Juan did medic at Hail- grade and in third years nine old pulse respiration. opened Koon have Muller, head custodian mann. Thomas laryngoscope blade airway with Juan's Hailmann, during in the cafeteria with large piece dog removed a of corn Muller told Juan period. Juan's lunch Koon, dog the corn foreeps. According to to calm down and boys at his table trachea; it was in lodged was not Juan's joking were around they eat because later, cavity," "oral which includes the minute another student Juan's laughing. A Despite the school and choking. that Juan was throat. at 499. informed Muller assistant, efforts, noon Rhonda Muller sent workers' Juan died la- emergency *5 Smith, help and went to Juan's get at the hospital. ter hand his throat Juan had his table. 23, 2006, On October Rosales filed tort Muller, p. "I'm Tr. choking." told and January claim notice with the School. On over the table and Muller leaned Juan 26, 2007, for complaint Rosales filed blows," four "back and him three or gave School, the and in wrongful against death table. Id. vomitedonthe Juan an amended January Rosales filed MceEathron, the Sandra Maitland and the complaint wrongful against for death in cafeteria. secretary, arrived school and emotional alleging negligence School standing saw that Juan was MceEathron response, Rosales.1 In distress in his mouth. MeEathron with his hand alleged part in that Rosales's dam School maneuver to do the Heimlich attempted proximate were a result of Juan's ages removing in the ob- but was unsuccessful contributory negligence. MceEathron to Maitland sent struction. any- summary for make an announcement The School filed a motion for "All-Call" maneuver to knew the Heimlich response one who and in to the motion judgment, the cafeteria. Id. at 403. report to summary judgment, Rosales submitted for an affidavit of Charlee Hibbert. heard returned to Juan when he Muller filed a motion to strike Hibbert's Id. at 381. announcement. "All-Call" sought to summary judgment affidavit and were to do they struggling Muller saw that because, testimony ac- exclude his trial Juan, on and Mul- the Heimlich maneuver School, testimony was cording to the his the Heimlich maneuver attempted ler then anything and not based on oth- "unreliable Several other staff members and on Juan. opinion." App. p. than his 124. The er to the "All-Call" responded teachers also that Hibbert was an ex- trial court found maneu- attempted to do the Heimlich safety school and school pert regarding Juan lost point, ver on Juan. At some lack of reliabili- consciousness, emergency plans, they put Juan on the explored could be ty of his conclusions stomach attempted to do ground trial, and that They finger during cross examination thrusts on him. also did Loera, granted judgment against a default Juan's court later included Alfred 1. Rosales also father, Alfred. in the action. The trial as a defendant danger prejudice of unfair compared denied. will only We reverse for an abuse probative testimony to the value of the of that discretion. Id. small. Consequently, the trial court Hibbert president is the of Hibbert denied the School's motion to strike the af- Safety School Consulting, LLC. He testi- summary fidavit from the judgment pro- fied that he has extensive in experience ceedings and to exclude Hibbert's trial "evaluating, reviewing and assessing testimony. The trial court also denied the safety plans school guidelines." p. Tr. School's motion summary judgment for 275. He served as an external consultant negligence granted Rosales's claim but to the Indiana Department of Education to summary judgment to the School on Ro- safety evaluate school plans after the State sales's emotional distress claim. Board of implemented Education the stan- juryA trial was held in September 2009. Indiana,. dard for schools in He retired trial, During the Hibbert was unavailable Metropolitan from the School District of testify, objected and the School to the Wayne Township Indianapolis after deposition. admission of his The trial working as coordinator safety objection overruled School's transportation twenty-one services for allowed deposition Hibbert's to be read to years. jury. case, At the close of Rosales's Hibbert testified in the deposition that
the School moved for judgment on the the School "failed to meet the standard of evidence on the issue of negligence, and care required of schools Indiana to have the trial court denied the motion. At the in place plan to deal with foreseeable evidence, close of the Rosales moved for *6 emergencies, such as a child choking." Id. judgment on the evidence regarding the at 279. According to deposition Hibbert's defense, School's contributory negligence testimony, although the School's Plan was granted and the trial court Rosales's mo- reasonable, the School properly failed to tion. objections, Over the School's implement Plan, "which was a breach trial gave court Instruction Number 22 of the standard of required care of them and Instruction Number regarding neg- that, and them." Id. Hibbert testified ligence. The returned a verdict in while no Indiana require statutes schools favor of Rosales against and the School in to have a certain percentage of staff to $5,000,000. the amount of Pursuant to the aid, have training in or CPR first in his Act, Indiana Tort Claims Indiana Code opinion: 34-13~8-4, Section the verdiet was reduced $500,000, and judgment was in entered the reasonable standard of care that is that amount. The School filed a motion to who are involved in the people supervi- error, correct which was deemed denied. sion and have responsibility daily in a The School now appeals. children, basis for will have reasonable
Analysis levels of training regards to those things that can and will occur. Particu Testimony I. Hibbert's larly, a choking child. A choking child is The first issue is whether very experience common particu- and trial admitted Hibbert's de larly in elementary schools. position at the trial. The determination of Id. at 298. the admissibility of expert testimony is a matter within the sound discretion objected of the School to the admission of trial court. Lytle Co., v. Ford Motor deposition testimony. 696 Hibbert's ap On N.E.2d 470 (Ind.Ct.App.1998), peal, trans. argues that Hibbert's expert opin- conclude that Hibbert's his We unreliable because testimony was governed by principles scientific not be ion is could specificity, lacked statements and, therefore, subject is not to Indiana tested, under Daw- and failed empirically 702(b)'s reliability require- Rule Evidence argues The School also bert2 standards. opinion solely was based on ments. His unsupported opinion Hibbert's that his re- knowledge experience his unnecessary testimony was that his chok- surrounding view of the facts Juan's imple the School failed to show expert opinion was based ing. Hibbert's Plan. ment its knowledge and not scientific specialized upon Indiana Evidence The School relies principles. provides: which Rule argues The School also that Hib- (a) scientific, technical, spe- or other If was "somewhat limited." experience bert's will assist the tri- knowledge cialized p. specific Br. Appellant's "[The the evidence fact to understand er of knowledge expert of an witness is neither issue, a a fact to determine qualification of the witness' determinative expert an qualified as witness admissibility an nor the of his expert as skill, train- knowledge, experience, Cummins, v. opinion into evidence." McIntosh education, testify thereto may ing, or (Ind.Ct.App. or other- opinion form of an 7 in the 2001), "A compe trans. denied. witness' wise. by his tency knowledge is determined (b) admis- testimony is Expert scientific subject generally, matter his if the court is satisfied only sible subject inqui knowledge specific upon principles the scientific weight to be accorded his ry goes to are testimony rests expert which the admissibility." Id. Hib- opinion, not its reliable. training went to the experience bert's testimony is expert's Where testimony not its admissibili weight of his expert's experience skill or upon the based ty. application of scientific rather than on *7 training, and upon experience Based his testimony the proponent the of principles, expert. The sub- qualified Hibbert as an subject that the only demonstrate must testimony-school of safe- ject matter his beyond field the related to some matter is knowledge of ty-was topic beyond a the the lay and that knowledge persons of the trier of fact in lay persons and assisted skill, knowl possesses sufficient witness determining understanding the evidence or assist in the field to edge, experience Hibbert's Consequently, a fact in issue. the evidence of fact to understand the trier admissible, and the tri- expert opinion Lytle, 696 a fact issue. or to determine its discretion in al court did not abuse However, when the at 469-70. N.E.2d admitting it into evidence. scientific testimony upon is based expert's Judgment Motion for II. School's testimony the proponent the of principles, Evidence on the prin that the scientific must also establish are testimony the rests ciples upon which The next issue is whether the the School's denied Rule trial (citing Ind. Evidence reliable. Id. 702(b)). judgment for on the evidence motion Pharmaceuticals, (1993). L.Ed.2d 469 Merrell Dow 2. Daubert v. 2786, Inc., 579, 125 U.S. 113 S.Ct. 509 288 "The negligence.3 specific
the issue of
standard of
of each
circumstances
challenge
ruling
review for a
to a
on a
(quoting
case." Id. at 232-33
Norman v.
motion for
on the evidence is the Turkey
Cmty.
Run
274
Corp.,
Sch.
Ind.
governing the trial
(1980).
same as the standard
310, 316,
614,
411 N.E.2d
617
court in
its decision." Smith v.
making
The School
on the
focuses
breach ele-
(Ind.2003).
Baxter,
ment
argues
and
that there was a "com-
Judgment
proper only
on the evidence is
lack
plete
showing
of evidence"
that
it
... are
"where all or some of
issues
failed to confirm its conduct to the requi-
supported by
sufficient evidence." Id.
site
care. Appellant's
p.
standard of
Br.
50(A)).
Trial
(quoting Ind.
Rule
We look
School,
According
to the
there was no
only
to
evidence and the reasonable
presented
evidence
that the School violat-
inferences drawn most favorable to the
statutory duty
ed a
or failed to do what
non-moving party.
Id. The motion should
corporations
prepare
school
do to
for
granted only
be
where there is no substan
medical emergencies.
argues
Rosales
that
tial
supporting
evidence
an essential issue
presented
demonstrating
she
evidence
in the case.
Id. If there is evidence that
School failed to meet the standard of care
people
would allow reasonable
to differ as
by failing to
ensure
its Plan was im-
result,
to the
judgment on the evidence is
plemented, by failing to
the proce-
follow
improper.
Plan,
dures in the
and
to
by failing
proper-
Negligence
comprised
following
is
ly train the staff
respond
to medical
(1)
three
duty
elements:
owed to the
emergencies.
(2)
defendant;
plaintiff by the
a breach of
presented
Rosales
evidence that
(@@)
defendant;
duty by
developed
pursuant
a Plan
injury
plaintiff
to the
proximately caused
Indiana State
regula
Board
Education
by that breach. McClyde v. Archdiocese
4-1.5-7,
tions.
(Ind.
See 511 I.A.C.
I.A.C.
Indianapolis, 752 N.E.2d
6.1-2-2.5.
specifically
Hailmann's Plan
re
App.2001).
Ct.
In
involving
cases
an al
quired the
develop
school nurse to
leged
duty
breach of a
school's
owed to its
students,
Indiana
imposed
team,
courts have
coordinate a first aid
coordinate an
session,
annual
training
standard of care that
CPR
first aid
is the level of care an
provide
ordinary, prudent person
list of CPR trained
would exercise
individu
als to the principal,
under the same or similar
Maitland. Prior to
circumstances.
September
nurse,
Id. "Because there
'some
is
remote risk of
the school
Huskey,
existence,
injury in all human
duty
Plan,
...
had never seen the School's
*8
imposed upon Indiana
protect
schools to
Maitland had never talked to her about the
their
necessarily
students has been
Plan
training.
defined
or CPR
September
Prior to
argues
3.
ap-
presentation
Rosales
that the School waived
of its evidence. A defendant
peal
judgment
of the denial of its motion for
appellate
does not waive
review of a trial
presenting
on the evidence
thereafter
evi-
judgment
court's denial of motion for
on the
50(A)(6) ("A
dence. See Ind. Trial Rule
mo-
50(A)
evidence under Trial Rule
made at close
judgment
tion for
on the evidence made at
case,
plaintiff's
though
of
even
after denial of
'
stage
proceedings
one
is not a waiver of
presented
the
motion
defendant
evidence on
right
of
party
the court or of
to make
behalf,
his or her own
if the defendant renews
except
such motion ...
that error of the court
judgment
the motion for
on the evidence after
denying
in
the motion shall be deemed cor-
presented
Kelly
he or she
evidence.
v. Levan
rected
evidence thereafter offered or ad-
doski,
(Ind.Ct.App.2005),
289 ... all or of the issues are a first "where some not coordinated Huskey had evidence." Id. training supported by sufficient team, annual CPR not coordinated aid Hailmann, a of 50(A)). list CPR prepared only at look to the TR. We (quoting Dr. Hailmann. Rob- and the reasonable inferences trained individuals evidence Stuart, physician, room emergency non-moving ert most favorable to drawn the staff was it was "clear" granted that testified Id. The motion should be party. support life in basic trained properly evidence only where there is no substantial proper perform did not that the staff and in the case. an essential issue supporting p. Tr. choking victim. on a procedures that would allow Id. If there is evidence if the staff opinion, In Dr. Stuart's result, as to the people reasonable differ life in basic properly trained had been improper. the evidence is Id. judgment on basic life performed properly support Juan, sur- would have of Juan
support argues that there The School that, while no for the issue of sufficient evidence Hibbert testified was vived. to have a require schools statutes Indiana pre to be contributory negligence Juan's training have staff to percentage of certain requires jury. to the "Indiana law sented aid, opinion: in his in or first CPR contributory negligence part on the of care is that any recovery against gov standard of bars plaintiff the reasonable supervi- in the are involved Clay City who Sch. people ernment actors." Consol. daily a responsibility and have sion Timberman, 300 Corp. v. (Ind.2009). Contributory negligence children, n. 6 will have reasonable for basis to those training regards levels of plaintiff of a to exercise is "the failure Particu- can will occur. things that ordinary person care an would reasonable choking child is child. A larly, choking safety." Penn own protection for his particu- very experience common Howard, Corp. v. Harris Madison elementary larly in sehools. (Ind.2007). n. 1 N.E.2d 1198 recognizes pre law a rebuttable "Indiana Id. at 2983. ages of that children between sumption evidence, it was for the this Given incapable contributory are seven the School exercised to decide whether Timberman, N.E.2d at negligence." person ordinary, prudent care an level of group are age in this 297. "[Olhildren or similar under the same would exercise care for their own required to exercise due properly The trial court cireumstances. of children safety under the cireumstances judgment for motion denied School's knowledge, judgment, and ex age, of like negligence. regarding evidence on the perience." III, Judgment for Rosales's Motion on the Evidence Juan, The evidence demonstrated child, in the eating nine-year-old trial is whether the The next issue he choked on a corn cafeteria when motion school granted Rosales's choked, A few minutes before Juan dog. the issue the evidence on for "(tlhe boys at his Muller warned Juan and Again, contributory negligence. *9 they because to calm down and eat challenge to a table of review for a standard Accord- laughing. around and joking the were judgment for on on a motion ruling Muller, calmed down. boys the then ing to gov the standard is the same as evidence later, approached a child "minute or so" its A making trial court in deci erning the chok- him that Juan was Baxter, Muller and told Judg at 243. 796 N.E.2d sion." child another ing. p. Apparently, Tr. 385. proper only the evidence is ment on 290 Pringles, complaining party adversely
had made a duck face with and have been af laughed Juan and choked on his food. Madison, fected." Penn Harris (quoting N.E.2d at 1195 Elmer Buchta that Juan was not presumption is 939, Trucking, Stanley, Inc. v. we contributorily negligent, and conclude (Ind.2001)). that the no evidence to presented emphasize rebut that presumption. We The first instruction at issue here is only that the evidence of Juan's conduct at Instruction No. which provided: laughed the that he at time he choked was proving Plaintiff has the burden of another child. There was no substantial (3) following three elements a pre- presented evidence that Juan failed to ex- ponderance of the evidence: ordinary ercise the care reasonable negligent That Defendant was nine-year-old boy age, knowledge, of like the followingways: judgment, experience and would for his A. Failed to implement and monitor protection safety. own Because there system provision for the of health was no substantial evidence of contributo- emergency services care ry negligence, the trial court properly Elementary; Hailmann granted judgment Rosales's motion for on the evidence regarding the School's con- properly timely B. Failed to train tributory negligence defense. Elementary; staff at Hailmann Jury Failed C. to assemble First Aid
IV.
Instructions
Elementary;
team at Hailmann
The final
is
issue whether the
prepare
trial court
D. Failed to
for a
jury
instructed the
foresee-
regarding negligence.
able
reviewing
emergency
In
a trial
medical
at Hail-
court's
give
decision to
or refuse a ten
mann Elementary;
instruction,
dered
we consider whether
supervise
E. Failed to
who
those
had
(1)
(2)
law,
instruction:
correctly states the
responsibility
provide
health
supported by
record,
is
the evidence in the
emergency
services and
care at
(8)
is covered in
substance
Elementary.
Hailmann
Stores,
instructions. Wal-Mart
Inc. v.
prove only
Plaintiff need
one of these
(Ind.2002).
Wright, 774 N.E.2d
allegations above and not all of them.
The trial court has discretion in instructing
2. That the negligence of the Defen-
jury,
we
will reverse on the last
dant was a proximate cause of Plain-
two
only
issues
when the instructions
injuries;
tiff's claimed
amount
to an abuse of discretion.
3. That Plaintiff
damages
suffered
as a
When an instruction is challenged as an
injuries.
result of the
law, however,
incorrect
statement
of the
stated,
IAs
have
the Plaintiff must
appellate review
ruling
of the
is de novo.
prove these propositions; the Defendant
Id. at 893-94.
disproving
has no burden of
them.
"Jury instructions are to be
App. p. 94. The other instruction at issue
considered as a whole and in reference to
here is Instruction No.
provided:
which
Timberman,
each other."
Among
provisions
the
safety
manuals and
hand-
tained
these
following:
@
along
book
with all of the other evidence
regarding
school staff
In-service the
in deciding
and the
instructions
Court's
*Complete by Septem-
Plan.
the Crisis
negligent.
whether Wal-Mart was
ber 5
rules, policies, prac-
violation of its
a First Aid
and coordinate
@Develop
proper
are a
item
procedures
tices and
Team
tending
degree
to show the
of evidence
e
and First Aid
annual CPR
Coordinate
recognized by
as ordi-
of care
Wal-Mart
training
specified
care under the conditions
nary
e
individu-
a list of CPR trained
Provide
rules,
proce-
policies, practices
in its
Team
Management
als to Incident
dures.
Coordinator
Wal-Mart,
The School is correct that its rules and Wal-Mart of not correct statements structions were policies may exceed its view of what is they jury to the law because allowed in a required by ordinary given care other the finding on considerations base its policies situation. Rules and in the According care. to the standard of proper may Manual have been established for School, of care is proper standard having nothing of reasons any number care, and the ordinary and reasonable of care, safety ordinary to do with that the incorrectly suggested instructions appear to more clean including a desire of care and Plan determined the standard customers, attract or a con- and neat to Plan was a violation of a violation of the spills may contaminate mer- cern the standard of care. chandise. that failure long recognized The law has argument,
In of its the School support party's precautionary steps to follow Stores, Wright, Inc. v. relies on Wal-Mart necessarily failure procedures is (Ind.2002), where cus- ordinary care. to exercise against action brought slip and fall tomer objection, Over Wal-Mart. Wal-Mart's Additionally, para- the second that: the trial court instructed jurors "ap- graph improperly invited subjective view-as evi- ply in effect at the time of the Wal-Mart's There was Manual-rather than an denced injury a store manual and safe- Plaintiffs Defendant, ordinary care." Id. objective standard ty prepared by the handbook Inc., concluded that reversal Stores, at 895. The court and issued Wal-Mart Store, required improper as a result of the employees. You was Inc. Wal-Mart rules, may consider the violation instruction. *11 given stated,
While Instruction No. 26 as to the I plaintiff As have must prove jury propositions; here is similar to the in these instruction the defendant Wal-Mart, disproving has no burden of them. improper paragraph second of the Wal-Mart *: instruction is not found * x * in Instruction No. 26. in Unlike Wal- Ind. Jury Pattern Instruction No. 9.03. Mart, Instruction No. 26 did not direct the pattern comments to the instruction jury to consider the School's Plan as evi- provided that "[alllegations in contained ordinary Rather, dence of care. the In- the complaint or answer upon which there jury struction No. 26 allowed the to consid- has been evidence should be set out in the er the "together Plan with all of the other instruction." Ind. Pattern Jury Instrue- facts, testimony, evidence and the Court's tion No. 9.08 emt. deciding instructions in whether and to Instruction No. 22 jury directs the extent, any, what if Defendant was negli- Rosales prove must the following by a gent at the time in question." App. p. 95. preponderance of the evidence: Further, Instruction specifically No. 26 That Defendant was in negligent any of provided jury that the could not use the the followingways: higher Plan "to set a duty than otherwise A. implement Failed to and monitor a required by law." Id. We conclude that system provision for the of health Instruction No. 26 was a correct statement services emergency care at law, of the and the trial court did not err Hailmann Elementary; by giving Instruction No. 26. B. Failed to properly timely train staff at Hailmann Elementary;
As for Instruction No. we first C. Failed to assemble a First Aid team note that it is based on former Indiana at Hailmann Elementary; Jury Pattern Instruction No. 9.03.4 Al though supreme our court has not D. formally prepare Failed to for a foreseeable approved the medical Jury emergency Indiana Pattern In Hailmann use, Elementary; structions for it recognized has their existence given them preferen some E. supervise Failed to those who had Timberman, tial status. the responsibility 918 N.E.2d at provide health 295. The pattern provided, instruction services emergency care at pertinent part: Hailmann Elementary. Plaintiff prove only need one of these The plaintiff has the burden of proving allegations above and not all of them.
the following propositions by prepon- App. p. 94. derance of the evidence: The instruction does not mention the set [Here the elements forth proper standard of clarify care or
plaintiff's action, cause tailored to merely Rosales was alleging the School the particular disputes reflect factual failed to meet the proper standard of care raised the evidence.] by failing to perform one or more of these * # # # # x acts. This instruction allowed the jury to year, ation 4. This English Jury Announces Plain the Civil Instructions Commit Civil In- tee Judges LexisNexis, Indiana Association released structions Available on available at instructions, pattern revised civil written http://www .in.gov/judiciary/press/2010/0722. "plain English." Judge See Indiana Associ- (last 2010). August htral visited
293 negligence in a case. it care to be considered in the event negligent the School find instance, instruct- not, put jury separately was Although for had the School found However, care, as of Instruc- proper team. on the standard a First Aid ed together said, when jury has that Supreme Court 22 then the Indiana tion No. instructed large manual of one of the policy perform failure to discussing the School's chain, policies company's jury rules could negligence. acts was retail listed ordinary required what is may negligent exceed that the School was have found Wal-Mart, situation. any given in failing perform care to one of the acts listed in policies "Rules and N.E.2d at 894. 22 finding in No. without Instruction have been may Manual company's]! [the exercise reasonable or the School failed to hav any number of reasons for established that the con- ordinary care. We conclude safety ordinary to do with ing nothing jury as to flicting instructions misled here. The Such is the case care ...." Id. of care. regarding the law the standard deter charged have been jury should instructions, in we Despite language other with reasonably and if the School acted mining plaintiff for the feel that the lowered bar notwithstanding what ordinary care with No. 22 demands as a result of Instruction Plan was or safety response entire its a reversal. not. Conclusion any error argues Rosales also trial conclude that the court did We harmless. "[EJven in the instruction was by admitting Hibbert's abuse its discretion instruc particular in a if there is error Further, testimony. the trial deposition tion, reversal unless the require it does not the School's motion properly denied law in the case." misled as to the
jury is negli- as to for on the evidence Timberman, jury at 300. The mo- properly granted Rosales's genee and all of the to consider here was instructed judgment on the evidence as to tion for them as a whole and construe "instructions However, contributory negligence. we harmony each other" and to "con in with jury was not conclude that together, as a all of the instructions sider and the regarding negligence, instructed any instruc package" "ignore and not to error. erroneous instruction was reversible tions, Tr. any part of instruction." reverse in Consequently, part, we affirm in also instructed 848-49. The trial court pp. remand for a new trial. part, and jury that: in part, part, Affirmed in reversed a failure to do what Negligence is remanded. person reasonably prudent careful and or similar cir- would do under the same FRIEDLANDER, J., concurs. something of doing cumstances or the reasonably prudent careful or that a CRONE, J., in and dissents part concurs or simi- would not do under same person part opinion. in with words, neg- In lar circumstances. CRONE, concurring part in Judge, reason- ligence is the failure exercise dissenting part. ordinary care. able or Id. at 852. I, II, fully to issues and III I coneur as respect to majority's opinion. With to interfere in a we are reluctant
While IV, majority that verdict, agree I with the we do issue gone case which has In- giving not err the trial court did given No. so here because Instruction No. 26. the standard struction misrepresents in this case however, respectfully disagree, I must majority's
with the conclusion that the trial giving court committed reversible error in Instruction No. 22. Unlike the erroneous Wal-Mart, *13 instruction at issue in Instruc- attempt tion No. 22 does not to define (either implicitly explicitly) the relevant care, standard but rather sets forth the allegations megligence contained in Ro- complaint. jury properly
sales's instructed on the relevant standard of
care, and it was left for the to determine whether instances
of the School's alleged conduct constituted comply failure to with the standard of
care, ie., negligence. I would hold that the trial court giving did not err in In-
struction No. and affirm in favor of Rosales. To hold otherwise question efficacy would be to of ever using former Jury Indiana Pattern In- (or
struction No. equivalent, 9.03 its new 507). Jury Model Civil Instruction No. HEYEN, Appellant-Defendant, Kelvin
v. Indiana, Appellee-Plaintiff. STATE of No. 84A04-1002-CR-134. Court of Appeals of Indiana.
Oct.