Schultz grew up on his family-owned property next to Sandy Pines Golf Club (“Sandy Pines”) in Wheatfield, Indiana. His family owned the property for over 50 years. After moving away, Schultz returned in 2008 to take care of his aging mother. In 2018, Sandy Pines added a driving range, and thereafter thousands of golf balls began falling onto the property. Schultz had to park his car at the far end of the driveway and sit under a tent when in the backyard to avoid the falling golf balls. While Schultz complained to Sandy Pines and Sandy Pines took some steps to alleviate the situation, golf balls continued to regularly fall onto the property. In 2020, Schultz’s mother transferred title to the property to Schultz so that he would have clear legal standing to sue.

Schultz filed a lawsuit against Sandy Pines for negligent design, nuisance, and trespass. The trial court entered summary judgment in favor of Sandy Pines on Schultz’s negligent design and nuisance claims. As to his nuisance claim, the trial court applied the doctrine of “coming to the nuisance,” since Schultz took title to the property knowing golf balls landed on it. Since Indiana law does not have a similar “coming to the trespass” doctrine, however, the trial court held a bench trial with respect to Schultz’s trespass claim. The trial court found the thousands of golf balls falling onto Schultz’s property constituted trespass by Sandy Pines. However, the trial court found that Schultz was 95% at fault and incurred the risk of trespass by taking title to the property with knowledge of the golf balls, and therefore, based upon Indiana’s Comparative Fault Act, was entitled to nothing. Schultz thereafter appealed the trial court’s decision as to his comparative fault.  

Indiana’s Comparative Fault Act, with limited exceptions, applies to “any action based on fault that is brought to recover damages for injury or death to a person or harm to property.” Ind. Code §§ 34-51-2-1, 2-2. As to the Act, “fault” is defined as “any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others,” and includes “unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” Ind. Code § 34-6-2.1-68(b). The Comparative Fault Act provides for proportionate damages based on relative degrees of causation attributable to the responsible actors, and it bars recovery if the claimant’s fault “is greater than the fault of all persons who contributed to the injury.” Ind. Code §§ 34-51-2-5, 2-6.

On appeal the Indiana Court of Appeals distinguished intentional torts, such as trespass, from torts based on negligence. While three elements must be proven in negligence claims (duty, breach, and damages caused by the breach), with the required standard of care varying depending on the circumstances, intentional torts are not a matter of degree or circumstance. Intentional torts instead focus exclusively on whether the defendant intentionally committed a wrongful act, where the intentional wrongful conduct itself constitutes the injury. The Court noted that in trespass cases, for instance, “the unauthorized entry itself is the invasion of property rights” that establishes the tort. Additionally, the Court noted differences in moral culpability between negligence and intentional torts. 

After reviewing Indiana law, including prior precedent and Indiana’s Comparative Fault Act, the Court ruled that, while negligent and intentional acts can both be considered in comparative fault analysis in negligence cases, such analysis does not apply in cases of intentional torts to reduce liability for intentional torts. The Court reasoned that in intentional tort cases “there is no such thing as acting 20% intentionally” and the intentional conduct itself “wholly constitutes the injury,” leaving no one else (other than perhaps joint intentional tortfeasors) to contribute to the harm. Finding fault allocation under the Comparative Fault Act “conceptually incompatible with the nature of intentional torts,” the Court reaffirmed prior precedent that in cases of intentional torts the plaintiff cannot be assigned fault, and the defendant is 100% liable for the intentional tort. 

Applying its analysis to the facts of this case, the Indiana Court of Appeals found the trial court erred when it engaged in fault allocation after finding Sandy Pines liable for trespass. According to the Court, Sandy Pines should have remained 100% liable for the tort of trespass. The trial court could then have addressed any failure to mitigate damages by Schultz, which is a separate inquiry. As noted by the Court, comparative fault “concerns who caused the injury and allocates responsibility” to those contributing to the harm, whereas mitigation of damages “concerns the victim’s conduct after the tort occurs and affects only the amount of damages,” not liability. A claimant’s post-tort conduct, like failing to limit the extent of harm, may reduce damages, but that conduct does not reduce or shift liability for the tort. Accordingly, the Court reversed and remanded for additional proceedings with respect to Schultz’s damages for trespass and any failure to mitigate.

You can read the full opinion here.

From serving lawsuits via social media to the end of “general objections” in discovery, the amendments to Indiana’s Trial Rules make these 7 significant changes in 2026. 

1. No More “General Objections” in Discovery Responses

Parties can no longer rely on a preamble of boilerplate objections in their discovery responses. 

The 2026 amendments to Indiana Trial Rule 33 (Interrogatories), Trial Rule 34 (Production of Documents), and Trial Rule 36 (Requests for Admission) explicitly ban “general objections,” which the new rules define as objections that are not directed to a specific request, do not specifically state the grounds on which they are based, or apply globally. Under the new rules, “[g]eneral objections must not be made and will have no effect.”

2. Parties Must Identify Non-Produced Responsive Materials When Objecting to Discovery

Under the old and new rules, parties are required by Trial Rule 26(B)(5) to provide a privilege log when they withhold otherwise discoverable information claiming it is privileged or protected trial preparation material. The new rules add a related and somewhat broader requirement when objecting to requests for production. Under the new Trial Rule 34(E), parties objecting to a request for production, for whatever reason, must state whether any responsive materials are being withheld on the basis of that objection. Notably, though, the new Trial Rule 34(E) does not explicitly require that parties describe the nature of the documents withheld in a manner that will enable other parties to assess the applicability of the objection, unlike Trial Rule 26(B)(5). How parties will comply with this Rule’s new requirement in practice remains to be seen.

3. Parties Can Serve Lawsuits via Social Media and Other Technology

Indiana’s new trial rules provide flexibility when it comes to hard-to-locate defendants. For instance, Indiana Trial Rule 4.14, as amended, allows for service via social media, email, or other technology under some circumstances. Under the new rule, if a party files a verified motion with facts sufficient to show that prior attempts to obtain service under the rules have been unsuccessful, the court can order service in “any other manner that is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.” The new rule provides that “[s]uch other forms of service may include social media, email, or other technology.” 

The new rules also simplify service in other ways. For instance, registered agents can be served electronically if they have consented to it under Rule 4.6(B), and Rule 5(B)(2) now allows for service by mail via third-party commercial carriers, like FedEx or UPS, in addition to U.S. Mail. 

4. Requests for Admission Must be Served Separately

Indiana litigators often combine written forms of discovery and serve them together. It is commonplace, for instance, to see interrogatories combined with requests for production with both served on adverse parties in one document. Prior to the new amendments, parties could also include requests for admission, which can be a serious problem for responding parties who fail to recognize they were included, as requests for admission are admitted if not answered within 30 days. Trial Rule 36(B) now provides that requests for admission cannot be “combined in the same document with any other pleading and must be served separately from any other form of discovery.”

The new Trial Rule 36(B) also adjusts the timing of when requests for admissions can first be served to “not earlier than ten days after the issues are first closed on the merits or thirty days from commencement of the action in cases where no responsive pleading is required.”

5. Timelines for Non-Party Requests and Procedures for Objections Have Changed

The timing of service of non-party requests for production has changed under the new trial rules. Under the new Trial Rule 34(G)(2), a party need only wait 10 days (as opposed to 15 days) after serving a copy of a non-party request for production on an adverse party before serving the request on the non-party. Trial Rule 34(G)(3) also provides new procedures to follow when a party objects to a non-party request. A party must object to a non-party request within the 10-day waiting period, providing specific grounds for the objection and a proposed date and time to meet and confer under Indiana Trial Rule 26(F). If no agreement is reached, the objecting party must move to quash or modify the non-party request within 20 days of the objection, or the request can be served. 

6. Parties Must Confer in Good Faith 15 Days Before 30(B)(6) Depositions

Indiana Trial Rule 30(B)(6) governs depositions of persons designated by organizations to testify on their behalf. It is not uncommon for disputes to arise amongst the parties as to the matters for examination, which under the old and new rules are to be designated with reasonable particularity in the deposition notice. However, under the new rule, parties must now meet and confer in good faith about the matters of examination at least 15 days prior to the deposition.

7. There is a New Standard for Spoliation of Electronically Stored Information (ESI)

The 2026 amendments to Indiana Trial Rule 37 remove the “safe harbor” provision regarding the failure to preserve electronically stored information (ESI). Prior to the amendments, absent exceptional circumstances, courts could not impose sanctions on a party for failing to provide ESI lost as the result of “the routine, good faith operation of an electronic information system.” Under the amended Rule 37(D), courts can now impose sanctions on parties for “failing to take reasonable steps to preserve [ESI]” that is relevant, material, should have been preserved in anticipation of or during litigation and is lost because of the failure to take reasonable steps to preserve it, cannot be restored or replaced through additional discovery, and either prejudice results to another party or the party acted with intent to deprive another party of the information’s use in litigation. Sanctions can include a presumption and jury instruction that the lost information was unfavorable to the party, dismissal of the action, entry of default judgment, or other orders to cure any prejudice.

The Order Amending Rules of Trial Procedure with annotations as to the changes can be found here. A full copy of the new Indiana Trial Rules can be found here.