MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Mar 09 2017, 6:55 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Natalie Shrader Kevin W. Marshall
Burke Costanza & Carberry LLP Hobart, Indiana
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gasser Chair Company, Inc., March 9, 2017
Appellant-Defendant, Court of Appeals Case No.
45A05-1606-CT-1226
v. Appeal from the Lake Superior
Court
Marlene J. Nordengreen, The Honorable Bruce D. Parent,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45D04-1001-CT-7
Robb, Judge.
[1] In Gasser Chair Co., Inc. v. Nordengreen, No. 45A05-1606-CT-1226 (Ind. Ct. App.
Dec. 22, 2016), Nordengreen sought damages under the Indiana Products
Liability Act against Gasser for injuries she suffered after a chair manufactured
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by Gasser collapsed and smashed her leg. Gasser appealed the judgment in
favor of Nordengreen on the basis the trial court abused its discretion in
denying its motion for judgment on the evidence. On appeal, we concluded the
record demonstrated Nordengreen voluntarily withdrew her products liability
claim and attempted to proceed on a claim of negligence independent of her
products liability claim. Specifically, we reasoned the transcript clearly showed
Nordengreen intended to withdraw her products liability claim and such a
finding was further bolstered when viewing the parties’ discussions regarding
final jury instructions, where there were several references to the trial court and
Nordengreen agreeing to withdraw jury instructions pertaining to products
liability claims. Slip op. at *3. We further determined Nordengreen’s attempt
to use the doctrine of res ipsa loquitor as an independent claim of negligence
was insufficient. Id. at *4 n.4. We concluded Nordengreen did not present
evidence of a claim of negligence independent of her products liability claim
and therefore judgment on the evidence should have been granted in favor of
Gasser. Id. at *4. Accordingly, we reversed and remanded with instructions for
the trial court to enter judgment in favor of Gasser.
[2] Nordengreen has filed a petition for rehearing, contending we critically
misunderstood aspects of what occurred at the trial court. 1 Specifically, she
1
Due to e-filing issues, this court did not receive Gasser’s brief in response to Nordengreen’s petition in a
timely fashion. Gasser has now filed a motion for leave to refile its response and attached the response to the
motion. In an order issued contemporaneously with this decision, we grant Gasser’s motion for leave to
refile its brief in response and have considered its brief accordingly.
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claims she did not withdraw her products liability claim, and in support, she has
filed a motion to supplement the record to include the final jury instructions,
which were not submitted as a part of the original record. In an order issued
contemporaneously with this decision, we granted Nordengreen’s motion to
supplement the record, and as a result, granted rehearing to address any effect
the final jury instructions have on this case.
[3] Nordengreen directs us to jury instructions number 9, 10, 11, and 13 which she
claims come from a chapter titled “Product Liability: Negligence” in the
Indiana Model Civil Jury Instructions. Instruction #9 addresses comparative
fault and defines “fault”; instruction #10 defines negligence; instruction #11
addresses causation; and instruction #13 defines reasonable care. Although
these instructions may have come from the “Product Liability: Negligence”
chapter of the manual, we are left unpersuaded such evidence supports
Nordengreen’s claim she did not voluntarily withdraw her products liability
claim, especially in light of the fact these instructions appear to be pattern
instructions applicable in most, if not all, negligence cases. We further
emphasize Nordengreen did not originally include these instructions as part of
the record on appeal and such an omission implies Nordengreen did not believe
the instructions were necessary or important for our decision.
[4] In sum, our interpretation of the record demonstrates Nordengreen voluntarily
withdrew her products liability claim and the discussions between the parties
regarding the final jury instructions only bolstered our conclusion. The final
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jury instructions now made part of the record do not dissuade us from our
earlier decision and we therefore reaffirm our earlier opinion in all respects.
Mathias, J., and Brown, J., concur.
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