dissenting.
I respectfully dissent. Here, absent objection, the jury’ was instructed:
You must decide this case on the basis of the Indiana law of comparative fault. The term ‘fault’ refers to varieties of conduct that make a person responsible, in some degree, for an injury. The type of fault at issue in this ease is negligence and failure to mitigate damages. (Emphasis added).
Also, without objection, the jury was instructed:
A party claiming damages must exercise care to mitigate her damages.
If the Plaintiff has failed to mitigate her damages, she may not recover for those damages which she failed to mitigate. Fault which should be allocated to the Plaintiff includes any failure by her to mitigate her damages. (Emphasis added).
Deible contends that the verdict was against the weight .of the evidence; was contrary to the evidence; and was necessarily the product of confusion, corruption, passion or prejudice by the jury. It is clear from the instructions, to which no objection was lodged, that the jury applied the evidence to the law precisely as it was instructed. Thus, Deible’s real complaint is that the instructions inadequately, incompletely, or erroneously informed the jury of its duty in assessing fault, as ‘opposed to damages, and any failure to mitigate those damages.
It was incumbent upon Deible to object to the instructions. To preserve instruction error, a specific objection must be lodged before the instruction is given, stating why it is misleading, confusing, incomplete, irrelevant, not supported by the evidence, or an incorrect statement of the law. See Carrier Agency v. Top Quality Bldg. Prod., 519 N.E.2d 739, 744 (Ind.Ct.App.1988). It is well-settled that an instruction, once given absent objection, becomes the law of the case. Prange v. Martin, 629 N.E.2d 915, 919 (Ind.Ct.App.1994).
Here, the jury was unequivocally instructed that the failure to mitigate damages is a matter directly concerning the allocation of fault. Then the jury was given verdict forms which allowed it to set the amount of fault, based upon the evidence which included the failure to mitigate damages, attributable to Deible and Poole. Whether that instruction was erroneous is moot in the present case. That the jury was so instructed is now the law of the case. The time to illuminate the problem has passed. Deible cannot now be heard to base error on the jury’s verdict which followed accurately the instructions it was given. '
Further it is not a proper function of this Court to, “in effect, rewrite a statute in order to render it consistent with our view of sound public policy.” Robinson v. Monroe County, 668 N.E.2d 196, 198 (Ind.Ct.App.1996) (opinion denying rehearing acknowledging that clear language of statute unambiguously exempts certain individuals from abiding by safety requirements); see also Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996) (“statute not unconstitutional simply because the court might consider it born of unwise, undesirable, or ineffectual policies”). The apparent inaccuracy in the statute must be revised, if at all, by the legislature.
For the above reasons, I would vote to affirm.