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Articles Tagged with Jury Instructions

We previously wrote about an Indiana Court of Appeals case in which the court reversed a trial court’s judgment on a jury verdict of $40,000 for a plaintiff in a truck accident case and remanded the case for a new trial based upon the trial court’s giving of a failure to mitigate jury instruction. In Humphrey v. Tuck, the plaintiff, Patrick Humphrey, suffered swelling of a pre-existing tumor after being sideswiped by a truck and hitting his head, which caused problems with his vision and symptoms of a hormonal imbalance. Humphrey did not follow his doctor’s orders and advice with regards to medication management and an eyeglass prescription. However, the parties disagreed as to whether the defendants had shown such failure increased his harm, and if so, by how much. In a recent opinion, the Indiana Supreme Court found there was sufficient evidence to support a failure to mitigate instruction, thereby vacating the Court of Appeals opinion and affirming the judgment.

When reviewing the appropriateness of an instruction, reviewing courts consider whether (1) the instruction correctly states the law, (2) the instruction is supported by evidence in the record, and (3) the instruction’s substance is covered by another instruction. The first consideration is a legal question reviewed without giving any deference to the trial court, whereas the second and third considerations are reviewed for an abuse of discretion. To prove a failure to mitigate, a defendant must prove by a preponderance of the evidence that (1) the plaintiff did not exercise reasonable care in mitigating post-injury damages, and (2) the failure to exercise reasonable care caused the plaintiff to suffer harm not attributable to the defendant’s negligence. When a plaintiff fails to follow medical advice aggravating his injuries, a defendant must show such failure caused discrete, identifiable harm arising from that failure and not attributable to the defendant. Courts consider whether the defendant has produced enough evidence of causation to warrant an instruction. Expert opinion is often, but not always, required, with courts considering whether the medical issue is within the common experience, observation, or knowledge of a layman.

The Court of Appeals reversed the trial court and remanded for a new trial finding the evidence insufficient to support a failure to mitigate jury instruction. The Indiana Supreme Court, however, disagreed, noting under Indiana law to warrant the giving of an instruction a defending party need only show some evidence—a “scintilla”—of each element of the underlying claim or defense. Here, the trucking crash plaintiff Humphrey conceded the existence of evidence showing he had failed to exercise reasonable care to mitigate his post-injury damages; the only question, therefore, was whether there was some evidence that his conduct caused him to suffer harm beyond that attributable to the defendants. As to the second element of failure to mitigate, the Indiana Supreme Court noted that the issue is not only whether Humphrey’s failure to follow his doctor’s orders increased his harm, but also whether it prolonged the suffering he attributed to the defendants’ negligence in any discrete, measurable way, without the defendants having to put forth a specific numerical value as to the plaintiff’s increased or prolonged harm in showing “quantifiable” harm. Defendants argued that Humphrey’s failure to mitigate his damages either aggravated his injuries or prolonged them.

The Indiana Court of Appeals recently issued an opinion on whether a trial court properly instructed a jury in a rear-end automobile accident case in Indiana. In Torrence v. Gamble, 124 N.E.3d 1249, 1250 (Ind. Ct. App. 2019), the defendant rear-ended the plaintiff as the plaintiff was stopped waiting for oncoming traffic to clear before making a left-handed turn. After the collision, the plaintiff filed a lawsuit against the defendant for the substantial damage to her vehicle and for personal injuries she suffered in the collision. The defendant denied liability and asserted the plaintiff had comparative fault in causing the collision, namely, that the plaintiff’s brake lights were not illuminated, and her left turn signal was off.

Under Indiana’s Comparative Fault Act, which follows a modified comparative fault approach, a personal injury claimant is barred from recovery if the claimant’s fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages. Ind. Code § 34-51-2-6. In other words, if the fault of the claimant is greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the defendant or defendants. Ind. Code §§ 34-51-2-7, 34-51-2-8. If the plaintiff’s fault is not greater than fifty percent (50%) of the total fault of all persons involved in the incident giving rise to the injury or death, the jury has to return a verdict in favor of the plaintiff. Id.

Indiana’s Comparative Fault Act provides that a court shall instruct a jury to determine its verdict taking into account the percentage of fault of the claimant/plaintiff, of the defendant/defendants, and of any person who is a nonparty. Id. The Act further provides that the trial court shall provide the jury with forms of verdicts that require only the disclosure of the percentage of fault of each party and nonparty and the amount of the verdict against each defendant. Ind. Code § 34-51-2-11.

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