dissenting.
I respectfully dissent. By statutory definition, parties in a comparative fault action can never revert to nonparty status, and the trial court's TR. 50(A) judgment here operated as a zero percent fault allocation as to the City, the Mayor, and the Nugents as a matter of law.
Indiana's Comparative Fault Law, at IC 34-4-83-2 reads in part:
(a) As used in this chapter:; ...
*462"Nonparty" means a person who is, or may be, liable to the claimant in part or in whole for the damages claimed but who has not been joined in the action as a defendant by the claimant.... (Emphasis supplied).
The City, the Mayor, and the Nugents were all joined as defendants in this action by Tatom. In the first instance, these defendants do not meet the statutory definition of nonparties.
Further, the trial court's TR. 50(A) judgment in favor of these defendants amounted to a determination of zero percent fault as to each such defendant as a matter of law. Ind. Rules of Procedure, Trial Rule 50(A) provides in part
Where all or some of the issues in a case tried before a jury ... are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict. ...
To make a prima facie case in a negligence action, a plaintiff must present evidence showing (1) defendant owed plaintiff a duty imposed by law to do or not to do a certain act, (2) defendant violated that duty by an act or omission to act which constituted a breach of that duty, and (8) plaintiff's injuries were proximately caused by such breach of duty. Dunn v. Cadiente (1987), Ind.App., 505 N.E.2d 850, 851-852; Perry v. NIPSCO (1982), Ind.App., 433 N.E.2d 44, 49. Absent probative evidence or reasonable inference arising from the evidence as to any one or more of these three elements, a prima facie case has not been established. Under such circumstances, a T.R. 50(A) judgment on the evidence is properly entered and the case taken from the factfinder because the plaintiff is not entitled to have the question of damages factually considered as to any defendant against whom a cause of action has not been proved. Because a T.R. 50(A) judgment on the evidence takes the case from the fact finder, I believe the entry of such judgment constitutes a judicial determination of zero percent fault allocation as to each defendant so dismissed, as a matter of law. Here, the plaintiff raised no issue as to the propriety of the TR. 50(A) judgment below. Thus, we are bound by the trial court's determination on that subject. In my opinion the trial court, as factfinder, correctly refused to consider the percentage of fault of the City, the Mayor, and the Nugents because they were not liable in damages to Tatom, as a matter of law.
For those reasons, I would affirm the trial court in all things.