FILED
May 11 2017, 6:32 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Robert F. Foos Timothy S. Schafer
Neha M. Matta Timothy S. Schafer II
Neal Bowling Todd S. Schafer
Lewis Wagner, LLP Schafer & Schafer, LLP
Indianapolis, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sandberg Trucking, Inc., and May 11, 2017
Kimiel Horn, Court of Appeals Case No.
79A04-1605-CT-1069
Appellants-Defendants,
Appeal from the Tippecanoe Circuit
v. Court
The Honorable Thomas H. Busch,
Judge
Brittany M. Johnson,
Trial Court Cause No.
Appellee-Plaintiff. 79C01-1503-CT-14
Bradford, Judge.
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Case Summary
[1] Appellants-Defendants Sandberg Trucking, Inc., and Kimiel Horn (collectively,
“Appellants”) appeal following a jury trial after which they were found thirty
percent liable for the injuries of Appellee-Plaintiff Brittany Johnson and ordered
to pay $2.13 million in damages. In April of 2008, a tractor-trailer owned by
Sandberg and driven by Horn was southbound on I-65 when it struck a deer in
the dark, leaving remains in the roadway. Horn stopped his truck
approximately 250 feet down the roadway on the shoulder, exited his truck to
examine the damage to it, but did not activate the truck’s emergency flashers or
deploy deflective triangles behind his truck or near the deer remains.
Approximately ninety seconds after parking on the shoulder, Horn activated his
truck’s emergency flashers.
[2] At around this time, a car driven by Johnson’s fiancé Joshua Horne approached
from the north, and, while apparently attempting to avoid the deer remains,
careened out of control into Horn’s parked truck, killing Joshua and seriously
injuring Johnson. Johnson sued Appellants for negligence, and a jury found
Appellants thirty percent liable for Johnson’s injures, awarding her $2.13
million. Appellants argue that there is insufficient evidence to sustain the jury’s
verdict, the trial court allowed the jury to base its verdict upon impermissible
speculation, the trial court erred in concluding that Appellants had a duty to
warn fellow motorists of a hazard in the road and that a federal regulation
pertaining to stopped commercial vehicles applies in this case, and Johnson
failed to produce evidence to support the jury award of damages. Johnson
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contests all of the above assertions. Because we find Appellants’ arguments to
be without merit, we affirm.
Facts and Procedural History
[3] On April 27, 2008, Horn was employed by Sandberg as a truck driver and was
southbound in the dark on I-65 in Tippecanoe County at approximately 5:00
a.m. When several deer ran out in front of Horn’s tractor-trailer, he
unsuccessfully attempted to avoid them, striking one with the left front part of
his truck, leaving the deer’s remains spread over both lanes of the highway.
Horn pulled his truck completely onto the right shoulder, parking
approximately 250 feet south of where he struck the deer.
[4] Before activating his truck’s emergency flashers, Horn climbed out to assess the
damage, which included a headlamp swinging from its connecting wire. After
addressing the damaged headlamp, Horn climbed back into the cab, activated
the emergency flashers, and began retrieving a box of reflective triangles.
Approximately ninety seconds had elapsed since Horn parked the truck. As
Horn unlocked the triangle case, he heard the squealing of tires, and, roughly
ten seconds later, a car struck the back of his truck.
[5] Meanwhile, Joshua had been approaching the scene driving southbound on I-
65 in the right lane with Johnson, his fiancée, in the passenger seat.
Presumably to avoid the remains of the deer, Joshua swerved hard to the left
and overcorrected to the right, losing control of the vehicle, which slid into the
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rear of Horn’s truck; Joshua was severely injured and died at the scene.
Johnson, then twenty-two years old, sustained severe and, in some cases,
permanent injuries, including traumatic brain injury, a ruptured spleen,
multiple skull fractures, multiple rib fractures, permanent facial nerve palsy and
scarring on her forehead, deafness in her left ear, and memory loss.
Additionally, Johnson has trouble learning new things, suffers post-concussive
migraines, has gait instability and balance problems, and is at increased risk of
developing dementia in the future.
[6] On July 23, 2009, Johnson filed her complaint against Sandberg and the then-
unknown driver of the truck, alleging negligence in failing to activate the truck’s
emergency flashers or deploy reflective triangles or flares. In response to
Appellants’ motion for summary judgment, Johnson alleged that Appellants
had violated section 392.22 of the Federal Motor Carrier Safety Administration
regulations (“Section 392.22”), which provides, in part, as follows:
(a) Hazard warning signal flashers. Whenever a commercial
motor vehicle is stopped upon the traveled portion of a highway or
the shoulder of a highway for any cause other than necessary
traffic stops, the driver of the stopped commercial motor vehicle
shall immediately activate the vehicular hazard warning signal
flashers and continue the flashing until the driver places the
warning devices required by paragraph (b) of this section. The
flashing signals shall be used during the time the warning devices
are picked up for storage before movement of the commercial
motor vehicle. The flashing lights may be used at other times
while a commercial motor vehicle is stopped in addition to, but
not in lieu of, the warning devices required by paragraph (b) of this
section.
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49 C.F.R. § 392.22. Appellants countered that Section 392.22 was inapplicable,
as Horn was not engaged in interstate commerce at the time of the accident.
The trial court denied Appellants’ motion for summary judgment and its
request for an order preventing Johnson from placing into evidence the
obligations mentioned in Section 392.22.
[7] On February 23, 24, and 26, 2016, jury trial was held on Johnson’s negligence
claim. James Pinckney, a transportation consultant opined that Horn’s failure
to follow Section 392.22’s requirement to immediately activate his truck’s
emergency flashers was the cause of the second accident. Following the
presentation of Johnson’s case, the trial court denied Appellants’ motion for
directed verdict. On February 26, 2016, the jury returned a verdict in favor of
Johnson, finding that she had $7.1 million in damages and that Appellants were
thirty percent at fault,1 for a total money judgment of $2.13 million. On March
28, 2016, Appellants filed a motion to correct error, in which they argued that
Johnson failed to establish that any act or omission on Appellants’ part was the
proximate cause of Johnson’s injuries and that the verdict was unsupported by
sufficient evidence. On April 27, 2016, the trial court denied Appellants’
motion to correct error.
[8] Appellants argue that (1) the trial court erred in concluding that Horn had a
duty to warn other motorists not only of his stopped truck but also of the deer
1
The jury found Joshua to have been seventy percent at fault for the accident.
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remains, (2) Johnson failed to prove that the alleged negligent actions of Horn
were the proximate cause of her injuries, (3) the trial court erroneously allowed
the jury to engage in impermissible speculation, (4) the trial court erroneously
concluded that Section 392.22 established the correct standard for Horn’s
behavior in this case, and (5) the jury’s damages award in favor of Johnson for
$2.13 million was not supported by the evidence presented at trial.
Discussion and Decision
[9] “‘[T]o prevail on a claim of negligence the plaintiff must show: (1) duty owed
to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below
the applicable standard of care; and (3) compensable injury proximately caused
by defendant’s breach of duty.’” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62
N.E.3d 384, 386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484
(Ind. 2003)). “Whether a defendant owes a duty of care to a plaintiff is a
question of law for the court to decide.” N. Ind. Pub. Serv. Co. v. Sharp, 790
N.E.2d 462, 466 (Ind. 2003).
Standards of Review
[10] Appellants appeal from the trial court’s denial of their motion to correct error.
In general, we review a trial court’s ruling on a motion to correct
error for an abuse of discretion. Hawkins v. Cannon, 826 N.E.2d
658, 661 (Ind. Ct. App. 2005), trans. denied. However, to the
extent the issues raised by the City are purely questions of law, our
review is de novo. See Ind. BMV v. Charles, 919 N.E.2d 114, 116
(Ind. Ct. App. 2009) (“Although rulings on motions to correct
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error are usually reviewable under an abuse of discretion standard,
we review a case de novo when the issue … is purely a question of
law.”)[.]
City of Indpls. v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied.
In the present case, this standard of review is appropriately applied only to the
questions of whether Appellants had a duty of care to Johnson and whether
Section 392.22 applies in this case, which are questions of law for the court.
[11] For the remainder of their claims, Appellants are essentially arguing that there
was insufficient evidence to sustain the jury’s verdict. “The jury, as the trier of
fact, must weigh the evidence, draw any reasonable inferences, resolve conflicts
in the evidence, determine the credibility of witnesses and decide in whose
favor the evidence preponderates.” Ferdinand Furniture Co. v. Anderson, 399
N.E.2d 799, 805 (Ind. Ct. App. 1980).
Consequently, our standard of review allows us to overturn a
jury’s verdict only if there is no evidence on the elements of the
plaintiff’s claim which will support the verdict. Farm Bureau Ins.
Co. v. Crabtree (1984), Ind. App., 467 N.E.2d 1220, 1225, rehearing
denied, transfer denied. On such challenges to the sufficiency of the
evidence we view the record in a light most favorable to the
verdict, do not reweigh evidence, and will not rejudge the
credibility of witnesses.
Planned Parenthood of Nw. Ind., Inc. v. Vines, 543 N.E.2d 654, 658 (Ind. Ct. App.
1989), trans. denied.
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I. Duty of Care
[12] Appellants contend that the trial court erroneously concluded that Horn had a
duty to warn of the entire hazard, including the deer remains on the roadway.
Johnson argues that Appellants have framed this issue too narrowly and that
the general duty of all motorists to use reasonable care to avoid endangering
fellow motorists applies in all traffic cases, including this one.
Whether a defendant has a duty to conform conduct to a certain
standard for the benefit of the plaintiff is generally a question of
law. The question of the breach of a duty is usually one for the
trier of fact. However, if any reasonable jury would conclude that
a specific standard of care was or was not breached, the question
of breach becomes a question of law for the court.
Cox v. Paul, 828 N.E.2d 907, 911-12 (Ind. 2005) (citations omitted).
[13] In general, “[t]he law requires of every person that he shall exercise due care to
avoid injury to others and to protect himself, and the vigilance required is
always commensurate with the danger to be apprehended.”2 Lake Shore & Mich.
S. Ry. Co. v. Brown, 41 Ind. App. 435, 437, 84 N.E. 25, 26 (1908). More
particularly, “the duty owed by motorists to fellow motorists is well-
established.” Romero v. Brady, 5 N.E.3d 1166, 1168 (Ind. Ct. App. 2014), trans.
denied. “All operators of motor vehicles have a general duty to use ordinary
2
The version of this passage found in the www.westlaw.com database differs from the official version as found
in the Indiana Appellate Court Reports by replacing “he” with “they” and “himself” with “themselves.”
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care to avoid injuries to other motorists.” Wilkerson v. Harvey, 814 N.E.2d 686,
693 (Ind. Ct. App. 2004), trans. denied.
[14] Appellants argue that the trial court incorrectly interpreted Shaw v. Stewart’s
Transfer, 2010 WL 2943202 (D. Me. 2010), and the Restatement (Second) of
Torts § 322 to find that a duty existed in this case. Appellants also go to great
lengths to argue that Johnson’s own witnesses’ testimony supports the
proposition that Horn had no duty to warn fellow motorists of the deer remains.
We conclude that this is a too-narrow framing of the issue, i.e., arguing whether
a general duty to fellow motorists exists given a particular set of unique facts.
[15] As the Indiana Supreme Court has explained in the context of a school’s duty
to its students,
An approach that focuses on rearticulating that duty based upon a
given set of facts is misplaced in our view because to do so
presupposes that an issue which is thought to be settled must be
revisited each time a party frames the duty issue a little differently.
Rather, because a school’s duty to its students already has been
established, the focus shifts to whether a given set of facts
represents a breach of that duty.
Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 974-75 (Ind.
2001) (footnote omitted). Because of the existence of Horn’s duty to his fellow
motorists (including Joshua and Johnson), the focus shifts to whether a given
set of facts constitutes a breach of that duty. See, e.g., Romero, 5 N.E.3d at 1169
(“Similarly, it is well-established that motorists have a duty to use due care to
avoid collisions, and whether a motorist was following another motorist too
closely goes to the issue of breach.”). The trial court did not err in concluding
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that Appellants had a duty of care to Joshua and Johnson, and the question
then becomes whether that duty was breached, to be determined by the jury.
II. Proximate Cause
[16] Appellants also contend that the jury did not have sufficient evidence on which
to find that their actions or omissions proximately caused Johnson’s injuries.
“The proximate cause of an injury is not merely the direct or close cause, rather
it is the negligent act which resulted in an injury which was the act’s natural
and probable consequence in light of the circumstances and should reasonably
have been foreseen and anticipated.” City of Indpls. Hous. Auth. v. Pippin, 726
N.E.2d 341, 346 (Ind. App. 2000).
[17] It is well established that there may be more than one proximate cause of a
plaintiff’s injuries. See, e.g., J.B. Hunt Transp., Inc. v. Guardianship of Zak, 58
N.E.3d 956, 972-73 (Ind. Ct. App. 2016), trans. denied. In this case, the jury
found as much by assigning seventy percent of the fault to Joshua. To resolve
this case as a matter of law, as Appellants request, this court must find that
under no circumstances could any of the fault be properly assigned to
Appellants. Put another way, “the issue of proximate cause becomes a question
of law where only a single conclusion can be drawn from the facts.” Florio v.
Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007).
[18] We conclude that this is not one of those cases. Even though a short time
elapsed between Horn striking the deer and Joshua and Johnson running into
Horn’s truck, Horn did have time to do things differently, i.e., immediately
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activate his truck’s emergency flashers, and the jury could have concluded that
the second accident could have been avoided if he had. In other words, Horn
had time to take different action, action that the jury was entitled to conclude
might have alerted Joshua that there was trouble ahead and/or caused Joshua
to slow down. In fact, Johnson’s expert James Pinckney opined that Horn’s
failure to immediately activate his truck’s emergency flashers was the cause of
the second accident. The jury was entitled to credit Pinckney’s testimony, and
likely did.
[19] As we have stated,
Where, as here, the actor’s conduct has created a situation which
without more is not dangerous to anyone but which may become
dangerous if subsequently acted upon by a human being or force
of nature, the reasonableness of the actor’s conduct must be
evaluated, ultimately by weighing the likelihood and potential for
harm against the utility of the actor’s conduct. Whether the risk
involved in doing a particular act is apparent to an ordinarily
prudent person is most appropriately left for a jury which can
bring to bear its varied experience and common knowledge.
Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1265 (Ind. Ct. App. 1989)
(citations omitted). We conclude that the jury heard sufficient evidence to
sustain its finding that Appellants’ acts or omissions were a proximate cause of
Johnson’s injuries.
III. Impermissible Speculation
[20] In what seems to be essentially a slight variation of the previous two arguments,
Appellants contend that the trial court erred in allowing the jury to engage in
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what they characterize as impermissible speculation in reaching its verdict.
This is little more than a restated claim that the jury’s verdict was not sustained
by sufficient evidence. The gravamen of this argument is that the jury never
heard any evidence from Joshua (who is dead) or Johnson (who sustained head
injuries and remembers nothing about the accident) that Joshua would have
slowed, shifted to the left lane, or done anything else differently had Horn
activated his flashers earlier than he did.
[21] To support this argument, Appellants cite to Zak, 58 N.E.3d at 956, a case with
somewhat similar facts:
The First Accident
[3] On January 17, 2006, [Terry] Brown[, Jr.,] was a semi tractor-
trailer driver employed by Hunt [Transport. Inc]. He was driving
an empty trailer from Greencastle, Indiana, to Bolingbrook,
Illinois. At some point, it began snowing. A few miles south of
mile marker 205 on I-65 North, Brown felt his trailer move from
side to side. He reduced his speed to between fifty and fifty-five
miles per hour but did not believe that the weather conditions were
bad enough that he had to pull over.
[4] At approximately 6:00 p.m., Brown began driving on the
overpass at mile marker 205. He felt a bump in the back, looked
in his rear view mirror, and saw the trailer veering to the left side
of the interstate. Brown attempted to counter-steer to prevent his
trailer from jack-knifing, but his efforts failed. He blacked out
briefly, and when he returned to consciousness, he saw that the
semi had come to rest in the median between the north and
southbound lanes of I-65. The vehicle was in a jackknife position,
abutted the guardrail adjacent to the southbound lanes, and was
fully contained within the median, approximately 200 to 500 feet
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from the overpass. Although Brown never saw any black ice on
the roadway, he assumed that it was the cause of the accident.
[5] Brown, who had a noticeable bump on his head, reported the
accident to his employer and the police. An ambulance and tow
truck were called to the scene. Brown did not turn on the semi’s
flashers or place reflective warning triangles on the roadway. At
6:05 p.m., Indiana State Police Corporal Terence Weems
responded to the accident. Corporal Weems remained at the scene
for approximately thirty to forty-five minutes, during which time
the ambulance arrived and transported Brown to a nearby
hospital.
[6] Corporal Weems did not believe that the location of the semi in
the median was a safety hazard to motorists traveling on I-65
North. The surrounding area was dark and unlit, and another
officer testified that northbound drivers would likely not even have
known that the tractor-trailer was in the median because they
would not have been able to see it. The overpass is protected by
three-foot concrete barriers on each side, and there is a berm in the
median that meets the concrete wall. Together, these barriers
would have prevented headlights from northbound vehicles from
reflecting off of the semi. Because Corporal Weems believed the
scene to be safe to passing motorists, he left before the tow truck
arrived to go to the scene of another, unrelated accident.
The Second Accident
[7] At approximately 7:00 p.m., conditions on I-65 had worsened
dramatically. Sleet, heavy snow, and ice became serious
problems. Matthew Robinson was driving on I-65 North with his
fiancée, Kristen Zak, as the sole passenger. Robinson lost control
of his vehicle somewhere on the overpass at mile marker 205. His
vehicle slid off of the roadway and spun out of control into the
median, eventually striking the side of Brown’s jackknifed trailer.
Zak, who was thirty-one years old and asleep at the time, received
the brunt of the impact and was seriously injured. She sustained
serious brain damage, leaving her unable to walk, care for herself,
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or care for her six-year-old daughter. Neither Robinson nor Zak
have any memory of the accident.
[8] Indiana State Police Officer Martin Benner responded to the
scene of the accident. Robinson twice told Officer Benner that he
had been driving at the speed limit of seventy miles per hour when
he lost control of the vehicle, though Robinson later told an EMT
that he had been driving sixty miles per hour. Robinson has no
memory of these interactions; indeed, there is a gap in his memory
from before the accident to one week after the accident.
Id. at 961-62.
[22] Rejecting several challenges by the appellants in that case, we affirmed the
jury’s verdict in favor of Zak’s guardian. Id. at 974. Appellants note that in
Zak, Robinson (the driver) testified that if he had seen the flashers on the truck,
he would have slowed down, moved to the right lane, and proceeded with
caution. Id. at 964. Appellants argue that the absence of such evidence in this
case means that any verdict in favor of Johnson was necessarily based on
speculation. The presence of certain facts in Zak does not mean that a lack of
any of those facts in other cases requires a different result. Each case stands
alone, and the question is whether the evidence presented in this case—and
reasonable inferences arising therefrom—would allow the jury to reach the
verdict it did. Here, we conclude that there was sufficient evidence to conclude
that Joshua likely would have slowed down or taken other measures had the
truck’s flashers been on, even in the absence of direct evidence to that effect.
[23] Moreover, we will not adopt a rule that effectively eliminates the possibility of a
verdict in favor of the plaintiff(s) in failure-to-warn cases if the relevant person
does not testify that he or she would have done anything differently had he or
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she been warned of the danger. Put bluntly, it will not be uncommon in such
cases for that person to be dead. The jurors should be entitled to infer that
things would have played out differently had there been a warning, despite the
lack of testimony to that effect.
[24] Appellants also argue that there is no reasonable inference that Joshua would
have done anything differently had Section 392.22 been followed because that
provision does not address bringing attention to hazards in the roadway, only
stationary commercial vehicles. In other words, Appellants argue that the harm
in this case was not within the risk that Section 392.22 was designed to avoid,
which, they claim, is solely to prevent another motorist from colliding with the
stationary truck. This seems to be a variation on Appellants’ argument that
Johnson failed to prove proximate cause. That said, this is a too-narrow
interpretation of Section 392.22. There are any number of reasons why a
commercial vehicle might pull off and stop on a shoulder, including striking
something in the roadway—something that, as in this case, might still pose a
hazard. Arguably, a reasonable person might slow down and exercise caution
whenever encountering a stopped commercial vehicle with flashers on, because
that person likely has no idea why the vehicle is stopped. Indeed, Horn, Officer
Kruger, Officer Cody and Pinckney all testified that the purpose of Section
392.22 was to provide other motorists with warning so that they could slow
down, move over, and proceed with caution.
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IV. Section 392.22
[25] Appellants also argue that Section 392.22, as a federal regulation, does not
apply in this case because Horn was not engaged in interstate commerce. Even
assuming, arguendo, that Horn was engaged exclusively in intrastate commerce,
Indiana Code section 8-2.1-24-18(a) explicitly provides that “49 CFR Parts 40,
375, 380, 382 through 387, 390 through 393, and 395 through 398 are
incorporated into Indiana law by reference, and … must be complied with by
an interstate and intrastate motor carrier of persons or property throughout
Indiana.” (Emphases added).
[26] Appellants argue that this incorporation is too vague to be effective because it
does not apply to individual drivers like Horn and other incorporated federal
regulations render Section 392.22 inapplicable to intrastate transport. We find
these arguments unpersuasive. Appellants note that Indiana Code section 8-
2.1-24-18(a)applies, by its own terms, only to “motor carriers” and not
individual drivers like Horn. Another one of the regulations incorporated by
Indiana Code section 8-2.1-24-18(a), however, provides that “[t]he rules in
subchapter B of this chapter are applicable to all employers, employees, and
commercial motor vehicles that transport property or passengers in interstate
commerce.” 49 CFR § 390.3(a)(1) (emphasis added). Appellants also note that
49 CFR § 390.3(a)(1) applies to interstate commerce and seem to argue that the
General Assembly went to the trouble of adopting federal regulations and
specifically making them applicable to intrastate commerce while
simultaneously adopting one that nullified the entire adoption. It is, of course,
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implausible that this was the General Assembly’s intent when it enacted
Indiana Code section 8-2.1-24-18. “We must construe statutes to prevent
absurdity or a result the legislature, as a reasonable body, could not have
intended.” Chavis v. Patton, 683 N.E.2d 253, 258 (Ind. Ct. App. 1997).
Similarly, Appellants note that the General Assembly also incorporated 49 CFR
§ 383.5, which requires that “commercial motor vehicles” be “used in
commerce” and defines “commerce” as
(1) Any trade, traffic or transportation within the jurisdiction of
the United States between a place in a State and a place outside of
such State, including a place outside of the United States, and
(2) Trade, traffic, and transportation in the United States that
affects any trade, traffic, and transportation described in paragraph
(1) of this definition.
As with Appellants’ previous argument, we seriously doubt that the General
Assembly actually intended to adopt a number of federal regulations and then
nullify them in another portion of the same statute. Appellants have failed to
establish that Section 392.22 does not apply in this case.
[27] That said, having concluded that Section 392.22 applies to this case, it strikes us
as prudent to include some observations regarding the scope and effect of
Section 392.22. The parties argue at great length regarding the applicability of
Section 392.22, with Johnson asserting that Horn’s failure to immediately
activate his emergency flashers as required by Section 392.22 automatically
leads to liability, and Appellants asserting that Section 392.22 is, essentially,
irrelevant, as its purpose is to alert other motorists that the truck is stationary,
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not to warn of other road hazards. In our view, both suggested interpretations
are too narrow.
[28] Neither party offers any authority for the proposition (and research has
recovered none) that Section 392.22 limits, expands, or otherwise defines the
general duty of care a motorist owes to fellow motorists in Indiana. Whatever
Section 392.22’s effect in other contexts, we believe that it is best to view it as a
useful guideline in the context of Indiana negligence law. Put another way,
following Section 392.22 to the letter should not absolutely shield you from
liability any more than failing to follow it should automatically subject you to
it. In fact, this court has rejected such a rigid application, explaining that
“[u]nder Indiana law, an unexcused or unjustified violation of a duty dictated by
statute is negligence per se.” Indian Trucking v. Harber, 752 N.E.2d 168, 172
(Ind. Ct. App. 2001) (emphasis added). In other words, violation of a statutory
duty creates a presumption of negligence that may be rebutted.3
3
Indeed, it is not difficult to come up with hypotheticals that illustrate why rigid application of Section
392.22 could lead to injustice. Suppose, for example, that Horn had struck a person instead of a deer and
that it was a sunny day instead of a dark morning. Under those circumstances, if Horn had attended to the
victim first instead of immediately activating his emergency flashers, it seems that requiring rigid adherence
392.22 could lead to injustice. On the other hand, suppose that Horn had hit a difficult-to-see road hazard
that disabled his truck. If Horn could have easily and safely removed the hazard from the roadway or alerted
other motorists to its presence, relieving him of liability for a subsequent collision because he immediately
engaged his emergency flashers—while doing nothing about the hazard—also seems unjust.
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V. Damages Award
[29] Appellants argue that the jury’s damages award of $7.1 million is unsupported
by evidence in the record.
A person injured by the negligence of another is entitled to
“reasonable compensation,” which is the “sum [that] would
reasonably compensate the victim both for bodily injuries and for
pain and suffering.” [Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind.
Ct. App. 2001), trans. denied.] We apply a “strict standard” when
we review an appellate claim that a jury’s damages award was
excessive. Id. “A jury’s determination of damages is entitled to
great deference when challenged on appeal.” Sears Roebuck and
Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001).
Damages are particularly a jury determination. Appellate
courts will not substitute their idea of a proper damage
award for that of the jury. Instead, the court will look only
to the evidence and inferences therefrom which support
the jury’s verdict. We will not deem a verdict to be the
result of improper considerations unless it cannot be
explained on any other reasonable ground. Thus, if there
is any evidence in the record which supports the amount of
the award, even if it is variable or conflicting, the award
will not be disturbed.
Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App.
1994), reh’g denied, trans. denied). When considering a claim of an
excessive jury verdict, we [do not] reweigh the evidence, and we
“look only to the evidence and the reasonable inferences
therefrom which uphold the verdict.” Lutheran Hosp. of Indiana,
Inc. v. Blaser, 634 N.E.2d 864, 873 (Ind. Ct. App. 1994), reh’g
denied. “To warrant reversal, the award ‘must appear to be so
outrageous as to impress the Court at “first blush” with its
enormity.’” Ritter, 745 N.E.2d at 844 (quoting Kimberlin v.
DeLong, 637 N.E.2d 121, 129 (Ind. 1994) (quoting New York Cent.
Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017 Page 19 of 22
R.R. Co. v. Johnson, 234 Ind. 457, 127 N.E.2d 603 (1955)), reh’g
denied, cert. denied).
Reed v. Bethel, 2 N.E.3d 98, 113-14 (Ind. Ct. App. 2014).
[30] Appellants’ argument is that the jury’s award must be altered or vacated
because (1) Johnson did not present any evidence of special, i.e., pecuniary
damages at trial and (2) she has been able to maintain employment since the
accident and receive raises and promotions. Appellants point to no authority
that evidence of special damages is required in negligence cases, however, and
it was for the jury to weigh evidence regarding Johnson’s employment history
against the other evidence.
[31] Among the evidence produced by Johnson about the extent of her injuries was
testimony from Dr. Jonathan Liss, a neurologist, who testified that she suffered
severe traumatic brain injury, “has trouble learning new things[,]” “will forever
have inter grade amnesia[,]” and “will have to live with these significant
deficient’s [sic] the rest of her life.” Tr. p. 332. Dr. Liss testified that Johnson
was close to not surviving the accident; doctors “opened her up from kind of
stem to stern” and removed her damaged spleen; she sustained multiple skull
and rib fractures; she suffers from permanent facial nerve palsy; and she is deaf
in her left ear. Tr. p. 335. Dr. Liss added that Johnson suffers from
“tremendous” memory loss, tr. p. 350, suffers from post-concussive migraines,
and is at increased risk for developing dementia in the future. Moreover,
Johnson lost her fiancé in the accident that permanently injured her.
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[32] The trial court instructed the jury, in part and without challenge from
Appellants, as follows:
Brittany Johnson does not have to present evidence of the dollar
value of her pain, suffering, and mental anguish, disfigurement,
deformity, and permanent injuries. These types of damages need
not be proven to a mathematical certainty.
She must prove the nature and extent of these types of damages,
however. The dollar value, if any, of these damages is left to your
good judgment.
Tr. p. 724.
[33] Considering the extent and permanent nature of Johnson’s injuries, the jury’s
total award of $7.1 million is not so outrageous that it should impress this court
with its enormity. Appellants have failed to establish that the jury’s damages
award cannot be explained on any reasonable ground.
Conclusion
[34] We conclude that the trial court (1) did not err in finding that Horn had a duty
of care to Joshua, Johnson, and his other fellow motorists; (2) did not allow the
jury to engage in speculation; and (3) correctly concluded that Section 393.22
applies to intrastate commerce. We further conclude that Johnson produced
sufficient evidence to sustain findings that (1) Horn’s actions (or inactions) were
the proximate cause of her injuries and (2) she sustained $2.13 million in
damages.
[35] The judgment of the trial court is affirmed.
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Najam, J., and Riley, J., concur.
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