       MEMORANDUM DECISION

       Pursuant to Ind. Appellate Rule 65(D),
                                                                        Aug 20 2015, 9:37 am
       this Memorandum Decision shall not be
       regarded as precedent or cited before any
       court except for the purpose of
       establishing the defense of res judicata,
       collateral estoppel, or the law of the case.


       ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       Donald L. Poynter                                         Donald G. Orzeske
       Poynter & Bucheri, LLC                                    Beth L. Riga
       Indianapolis, Indiana                                     Goodin Orzeske & Blackwell, PC
                                                                 Indianapolis, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Eddie Wilkerson,                                         August 20, 2015
       Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                                29A05-1410-CT-490
               v.                                               Appeal from the Hamilton
                                                                Superior Court
       Robert R. Carr and Lawyer                                The Honorable William J.
       Transport, Inc.,                                         Hughes, Judge
       Appellees-Defendants.                                    Trial Court Cause No.
                                                                29D03-0909-CT-1236



       Mathias, Judge.

[1]!   Eddie Wilkerson (“Wilkerson”) sued Robert Carr (“Carr”) and Lawyer

       Transport, Inc., (“Lawyer Transport”) (collectively “the defendants”), alleging

       that Carr and Lawyer Transport were liable for damages suffered by Wilkerson



       Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 1 of 20
       after the vehicle Wilkerson was driving collided with the truck operated by

       Carr. A jury found in favor of the defendants, and Wilkerson now appeals,

       raising six issues on appeal, which we consolidate and restate as:


               1) Whether the trial court abused its discretion in excluding testimony
               from one of Wilkerson’s expert witnesses;

               2) Whether the trial court abused its discretion in refusing to give the jury
               two of Wilkerson’s proffered instructions;

               3) Whether the trial court abused its discretion by giving the jury two of
               the instructions tendered by Carr and Lawyer Transport; and

               4) Whether the trial court erred in failing to give the jury the verdict form
               tendered by Wilkerson.

[2]!   We affirm.

                                      Facts and Procedural History

[3]!   On October 1, 2007, Carr, who was a commercial truck driver employed by

       Lawyer Transport, was driving a flatbed truck transporting a forage harvester1

       southbound on Interstate 69 when he noticed that the discharge spout of the

       harvester had come loose from its binding and swung out to the side of the unit.

       Carr stopped his truck at the edge of the paved portion of the highway, then

       exited the truck cab to secure the discharge spout back into place. As he was

       doing so, Wilkerson, who was driving a box truck in the right-hand lane of the

       highway, veered outside of his lane and collided with the back of Carr’s flatbed.

       Wilkerson was injured as a result of the collision.



       1
        A forage harvester is a large piece of farm machinery also known as a “silage chopper.” Appellant’s App.
       p. 151.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015          Page 2 of 20
[4]!   On September 30, 2009, Wilkerson filed a complaint against Carr and Lawyer

       Transport, alleging that Carr was negligent in failing to ensure that the forage

       harvester was properly secured, in stopping on the side of the highway, and in

       failing to use warning devices to notify other drivers that he was stopped on the

       side of the road. Wilkerson also alleged that Lawyer Transport was negligent in

       entrusting the vehicle to Carr.

[5]!   A jury trial was held from September 30, 2014 to October 2, 2014. Wilkerson

       sought to admit the report and testimony of his expert witness, Jay Nogan

       (“Nogan”), an engineer. Concluding that the report consisted largely of a mere

       recitation of federal regulations and that only small sections of the report were

       actually based on Nogan’s expertise, the trial court excluded most of the report,

       as well as Nogan’s testimony related to the excluded portions of the report.

       Wilkerson attempted to make an offer of proof on the report and testimony, but

       the trial court asked him to wait until the end of the trial to do so. At the end of

       the trial, Wilkerson failed to renew his request to make an offer of proof.

[6]!   On October 3, 2014, the jury found in favor of the defendants, concluding that

       Wilkerson was sixty percent at fault for the collision and the defendants were

       forty percent at fault.


[7]!   Wilkerson now appeals. Additional facts will be provided.

                                     I. Nogan’s Expert Testimony

[8]!   Wilkerson first argues that the trial court erred in excluding portions of Nogan’s

       report and testimony. Generally, we review a trial court’s decision to admit or



       Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 3 of 20
        exclude evidence for an abuse of discretion. This standard also applies to

        decisions to admit or exclude expert testimony. We reverse a trial court’s

        decision to admit or exclude evidence only if that decision is clearly against the

        logic and effect of the facts and circumstances before the court, or the

        reasonable, probable, and actual deductions to be drawn therefrom. Norfolk S.

        Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100-01 (Ind. Ct. App. 2005) (citations

        omitted).


[9]!    Rule 702 of the Indiana Rules of Evidence provides as follows with regards to

        the admissibility of expert witness testimony:

                (a) A witness who is qualified as an expert by knowledge, skill,
                experience, training, or education may testify in the form of an
                opinion or otherwise if the expert’s scientific, technical, or other
                specialized knowledge will help the trier of fact to understand the
                evidence or to determine a fact in issue.
                (b) Expert scientific testimony is admissible only if the court is
                satisfied that the expert testimony rests upon reliable scientific
                principles.

[10]!   The party seeking to admit expert testimony bears the burden of establishing the

        foundation and reliability of the scientific principles and tests upon which the

        expert’s testimony is based. Tucker v. Harrison, 973 N.E.2d 46, 49 (Ind. Ct. App.

        2012) (citing McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997)).


                In determining whether expert testimony is reliable, the trial
                court acts as a “gatekeeper” to ensure that the expert’s testimony
                rests on a sufficiently reliable foundation and is relevant to the
                issue at hand so that it will assist the trier of fact. When faced
                with a proffer of expert scientific testimony, the court must make
                a preliminary assessment of whether the reasoning or


        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 4 of 20
                methodology underlying the testimony is scientifically valid and
                whether that reasoning or methodology properly can be applied
                to the facts in issue.

        Id. (citations and quotations omitted). To be admissible, an expert’s opinion

        that an event caused a particular injury must be based on more than

        coincidence and supported by evidence in the record, establishing a standard of

        evidentiary reliability. Norfolk, 833 N.E.2d at 103.


[11]!   The trial court here issued an order granting in part the defendants’ motion to

        exclude the testimony and report of Jay Nogan, concluding that (1) the report

        consisted largely of a recitation of relevant federal regulations and his opinion

        regarding the ways in which the defendants failed to comply with those

        regulations; (2) the only part of the report based on Nogan’s expertise were the

        sections in which he outlined the procedures required to secure the machinery’s

        discharge spout; (3) the report would not be admitted unless redacted; and (4)

        Nogan would be permitted to testify about those things already in the record

        before the court, but not about the excluded portions of the report. Appellant’s

        App. p. 107.


[12]!   While Nogan may have a degree of knowledge of federal regulations related to

        the commercial transport of large machinery somewhat beyond that of ordinary

        lay jurors, his opinion regarding whether Carr and Lawyer Transport complied

        with those regulations was not necessarily helpful to the trier of fact. This is not

        a case where expert testimony was required to assist the jury in understanding a

        complex technical or scientific matter. Here, the jury was just as capable as




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 5 of 20
        Nogan of reviewing the regulations and weighing the evidence presented to

        determine whether the defendants acted negligently, especially since the trial

        court allowed Nogan to testify about the steps necessary to secure the discharge

        spout.

[13]!   Therefore, we conclude that the trial court did not abuse its discretion in

        excluding in part Nogan’s report and the related testimony. See Roach v. State,

        695 N.E.2d 934, 940 (Ind. 1998) (“Considering that the substance of the offer to

        prove dealt with why a frightened individual might act and speak irrationally,

        the court may have felt that this evidence was within the jury’s understanding

        and, thus, an expert witness would not assist the jury as is required by Rule

        702”); Hoffman v. Caterpillar, Inc., 368 F.3d 709, 714 (7th Cir. 2004) (the district

        court did not abuse its discretion by excluding portions of expert testimony

        regarding employee’s ability to operate machinery; videotape could be played

        for jury and entered into evidence, thus allowing them to make determination

        for themselves with respect to employee’s ability to run machine and, based

        upon this independent assessment, draw inferences regarding her ability to meet

        production levels.). Cf. WESCO Distribution, Inc. v. ArcelorMittal Indiana Harbor

        LLC, 23 N.E.3d 682 (Ind. Ct. App. 2014) trans. dismissed, 29 N.E.3d 1273 (Ind.

        2015) (trial court did not abuse its discretion in admitting mill operator’s expert

        testimony from mechanical engineer and electrical engineer as to whether

        fractured blowout coils caused braking system failure in crane while it was

        hoisting ladle of molten iron, which unexpectedly descended from its hoisted




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 6 of 20
        position and tipped, igniting fire that caused extensive damage to mill;

        testimony was helpful in explaining to jury how incident could have happened).

                            II. Wilkerson’s Tendered Jury Instructions

[14]!   Wilkerson next argues that the trial court erred in instructing the jury. The

        purpose of an instruction “is to inform the jury of the law applicable to the facts

        without misleading the jury and to enable it to comprehend the case clearly and

        arrive at a just, fair, and correct verdict.” Joyner-Wentland v. Waggoner, 890

        N.E.2d 730, 733 (Ind. Ct. App. 2008) (quoting Estate of Dyer v. Doyle, 870

        N.E.2d 573, 581 (Ind. Ct. App. 2007)). We review a trial court’s decision to

        give or refuse a tendered instruction for an abuse of discretion. Id. Upon review

        of a trial court’s decision to give or refuse a tendered instruction, we consider

        whether the instruction (1) correctly states the law, (2) is supported by evidence

        in the record, and (3) is covered in substance by other instructions. Id. at 734.


[15]!   Erroneous jury instructions need not result in reversal of a judgment. Armstrong

        v. Federated Mut. Ins. Co., 785 N.E.2d 284, 287 (Ind. Ct. App. 2003), reh’g denied,

        trans. denied 804 N.E.2d 750 (Ind. 2003). Reversal is warranted only “upon an

        affirmative showing that the instructional error prejudiced the party’s

        substantial rights.” Id. at 289. If the verdict would not have been different, any

        error was harmless. Id. at 287.


        A.! Tendered Instruction Number 3


[16]!   Wilkerson submitted to the trial court final instruction number 3, which

        contained 12 paragraphs quoting various redacted portions of the Code of


        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 7 of 20
        Federal Regulations (“CFR”) related to motor carrier companies, the drivers

        they employ, and the operation of commercial motor vehicles. The final

        paragraph of the instruction stated, “[i]f you decide from the greater weight of

        the evidence that a person or entity violated any of these laws and that the

        violation was not excused, then you must decide that person was negligent.”

        Appellant’s App. p. 111. Wilkerson withdrew several paragraphs of the

        tendered instruction. The defendants objected to the remaining paragraphs

        contained in the instruction, arguing that they contained incomplete statements

        of the law and were redacted in a way that caused them to be misleading to the

        jury. The trial court agreed with the defendants and determined that the

        modified instruction tendered by Wilkerson contained incorrect and

        intentionally misleading statements of law.


[17]!   Wilkerson contends that proposed instruction number 3 was a correct statement

        of law, in that the language came directly from the Code of Federal

        Regulations; that the evidence supports the giving of the instruction; and that

        the substance of the instruction is not covered by any other instruction. We

        agree with the trial court, however, that the instruction tendered by Wilkerson

        was redacted in a way that could reasonably be viewed as misleading to the

        jury. Specifically, it quoted a CFR requiring commercial vehicle drivers to

        periodically inspect their cargo and securement devices but omitted the section

        of the regulation that stated that the requirement did not apply in certain

        circumstances; it quoted language that cargo must be secured on the truck but

        omitted the rest of the sentence that read “to prevent the cargo from leaking,




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 8 of 20
        spilling, blowing, or falling from the motor vehicle”; it included the quote

        “[c]argo must be contained, immobilized or secured” against shifting, but

        omitted the rest of the sentence, which read, “in accordance with this subpart to

        prevent shifting upon or within vehicle to such an extent that the vehicle’s

        stability or maneuverability is adversely affected”; and it included references to

        other sections of code without providing any language from those sections.

        Appellant’s App. pp. 110-11, 130-36. The trial court reasonably concluded that

        the instructions placed undue emphasis on the particular language of the

        regulations that are helpful to Wilkerson’s case, while omitting less helpful

        language in a way that could be misleading to the jury. Therefore, the trial court

        did not err in refusing the instruction as an incorrect statement of the law. See

        Hartford Steam Boiler Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1141-42

        (Ind. Ct. App. 2002) (affirming trial court’s refusal of tendered instructions

        where instructions included selected portions of the Code of Federal

        Regulations and placed excessive emphasis on particular sections to the

        exclusion of the remainder of the sections which were also applicable to the

        case).

[18]!   Wilkerson also argues that the trial court should have allowed him to “modify

        and retender this instruction” after rejecting it. Appellant’s Br. at 16. Upon

        review of the record, however, we could not find any request by Wilkerson to

        modify and re-tender jury instruction number 3 subsequent to the trial court’s

        refusal to give the instruction. In his reply brief, Wilkerson argues that the trial

        court “made it clear that it was unwilling to entertain further arguments”




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 9 of 20
        regarding the tendered instruction and that Wilkerson made his “intention to

        submit a retendered instruction with the complete CFR’s clear.” Appellant’s

        Reply Brief at 6. We disagree. The record reveals that, after the trial court

        rejected Wilkerson’s instruction number 3 as an incorrect statement of the law,

        Wilkerson’s counsel attempted to convince the trial court that the instruction

        was a correct statement of the law. However, nothing in the record indicates

        that Wilkerson’s counsel directly requested an opportunity to modify and re-

        tender the rejected instruction. Wilkerson essentially argues, then, that the trial

        court should have sua sponte provided him the opportunity to re-tender the

        instruction when he made no specific request to do so. The law has no such

        requirement, and such an argument is unavailing on appeal.

        B. Tendered Instruction Number 7

[19]!   Wilkerson also argues that the trial court erred in refusing his tendered

        instruction number 7 as a mandatory instruction.


[20]!   The instruction stated:

                When the events in this case happened, the following Indiana
                laws provided, in part, as follows:
                1. (a) This section does not apply to a person who drives a
                vehicle that is disabled while on the paved, improved, or main
                traveled part of the highway in manner and to the extent that it is
                impossible to avoid stopping and temporarily leaving the disabled
                vehicle on the highway.
                (b) A person may not stop, park, or leave standing an attended or
                unattended vehicle upon the paved or main traveled part of a
                highway outside of a business or residence district, if it is



        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 10 of 20
                practical to stop, park, or leave the vehicle off the highway. I.C.
                § 9-21-16-41(b)
                2. “Highway” or “street” means the entire width between the
                boundary lines of every publicly maintained way when any part
                of the way is open to the use of the public for purposes of
                vehicular travel. The term includes an alley in a city or town.
                I.C. § 9-13-2-73.
                The location of a vehicle on the paved portion of a highway,
                including the paved shoulder of a highway, poses a threat or
                harm to the community. Indiana Code § 9-21-16-1 prohibits an
                individual from stopping, parking, or leaving a vehicle on a
                paved portion of the highway unless the vehicle is disabled or he
                or she is doing so at the direction of a police officer.

        Appellee’s Br. at 19.

[21]!   A mandatory instruction charges the jury that if it finds that a certain set of facts

        exists, it must render a verdict for a particular party. Skaggs v. Davis, 424 N.E.2d

        137, 141 (Ind. Ct. App. 1981). Mandatory instructions are generally disfavored,

        and this court has cautioned that they not be used. Northrop Corp. v. General

        Motors Corp., 807 N.E.2d 70, 103 (Ind. Ct. App. 2004). Here, the erroneous

        instruction was not a mandatory instruction because it neither set forth a factual

        scenario nor used mandatory language. Instead, it set forth general statements

        of law.


[22]!   However, the instruction was properly rejected as an incorrect statement of the

        law. Specifically, the portion of the instruction that states “[t]he location of a

        vehicle on the paved portion of a highway, including the paved shoulder of a

        highway, poses a threat or harm to the community” is misleading to the jury

        and an impermissible editorial comment. The case on which Wilkerson bases



        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 11 of 20
        the statement, Jones v. State, 856 N.E.2d 758 (Ind. Ct. App. 2006), trans. denied,

        does not, as Wilkerson would have the jury believe, stand for the proposition

        that any vehicle located on the paved portion of the highway, under any

        circumstances, poses a threat or harm to the community. The facts of Jones are

        distinguishable from this case; in Jones, this court held that the impoundment

        and inventory search of a car abandoned on the side of a highway was

        permissible under the Fourth Amendment of the United States Constitution

        and Article I, Section 11 of the Indiana Constitution. Here, Carr quickly pulled

        his truck to the side of the highway so that he could exit the truck and re-secure

        part of his cargo that had swung loose.


[23]!   Furthermore, the jury in this case heard evidence regarding the relative safety of

        the location in which Carr pulled over and whether the location was marked as

        a shoulder or not. Wilkerson’s counsel argued extensively during closing

        statements that it was not reasonable or safe for Carr to stop his truck where he

        did. Other instructions given by the trial court informed the jury that they were

        to find for the defendants if they decided that Wilkerson’s fault for his injury

        was greater than fifty percent, that “a person using a road . . . is entitled to

        assume that others using the road will use reasonable care,” and on the

        meaning of negligence, foreseeability, and reasonable care. Tr. p. 891. The jury

        was well aware of the theory Wilkerson sought to present through the

        instruction—that Carr was negligent in stopping his truck on the side of the

        highway—and still attributed the greater proportion of fault to Wilkerson.




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 12 of 20
        Therefore, the trial court’s refusal to give the proposed instruction was not an

        abuse of discretion.

                                II. Defendants’ Tendered Instructions

        A.! Instruction Number 16


[24]!   Wilkerson next argues that the trial court improperly tendered the defendants’

        final instruction number 16, over Wilkerson’s objection:


                16. When the events of this case happened, Indiana Code 9-21-8-
                14 provided as follows:
                         “A person who drives a motor vehicle may not follow
                         another more closely than is reasonable and prudent,
                         having due regard to the speed of both vehicles, the time
                         interval between the vehicles, and the condition of the
                         highway.”
                If you decide from the greater weight of the evidence that one of
                the parties violated Indiana Code 9-21-8-14, and that the
                violation was not excused, then you must decide that person was
                negligent.

        Appellant’s Br. at 22-23.

[25]!   Wilkerson argues that “there was no evidence in the record to indicate that [he]

        was following another vehicle more closely than was reasonable and prudent,”

        Appellant’s Br. at 23, and, therefore, it was error for the trial court to give an

        instruction based on this theory.

[26]!   We note that a trial court may be justified in giving an instruction if any

        evidence supports the instruction. R.R. Donnelley & Sons Co. v. N. Texas Steel Co.,




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 13 of 20
        752 N.E.2d 112, 139 (Ind. Ct. App. 2001). “If there exists any facts or

        circumstances in the case although quite meager, to which the instructions

        might, upon any view, be pertinent, it would not be error to give them,

        although they were so given to the jury over the objection of the complaining

        party.” R.R. Donnelley & Sons Co. v. N. Texas Steel Co., 752 N.E.2d 112, 139 (Ind.

        Ct. App. 2001)

[27]!   While Wilkerson argues that no evidence in the record indicates that he was

        following too closely behind Carr’s truck or any other vehicle, he testified that

        his view of Carr’s truck was blocked by another vehicle until just before

        Wilkerson collided with Carr’s truck. He also stated that the collision occurred

        after he looked away from the road for a moment to reach for his Mountain

        Dew soda. This evidence alone supports an inference that Wilkerson was

        following the vehicle in front of him too closely because a reasonable juror

        could conclude that, had Wilkerson been following at a safer distance, he

        would have seen Carr’s truck pulled over at the side of the road, have seen that

        he had veered off of the traveled portions of the highway, and had sufficient

        time to avoid the collision. Under these facts and circumstances, the jury could,

        and did, conclude that Wilkerson was partially to blame for his injury by

        following too closely behind another vehicle. The trial court did not err in

        giving final instruction number 16.




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 14 of 20
        B. Instruction Number 18


[28]!   Wilkerson also argues that the trial court erred in giving final instruction

        number 18, tendered by the defendants. The instruction stated:


                You are instructed under the laws of the State of Indiana in
                determining whether an act or omission is negligent, the question
                must depend on whether or not an injury of some kind to some
                person could have been reasonably expected to result from such
                act or omission; reasonable care requires a person to anticipate
                and guard against what usually happens or is likely to happen,
                and a failure to do this may be negligence; but reasonable care
                does not require a person to foresee and guard against that which
                is not likely to occur, and a failure to do this is not negligence.

        Appellee’s Br. at 24.

[29]!   Wilkerson contends that the instruction “is an incorrect statement of law

        because it is not based upon the model instructions and relies upon inapplicable

        case law.” Appellant’s Br. at 26. He argues that the facts in Evans v. Schenk Cattle

        Co., 558 N.E.2d 892 (Ind. Ct. App. 1990), a case in which use of a similar

        instruction was affirmed by this court, are distinguishable from the facts of the

        present case because in Evans the injury to the plaintiff occurred on a farm as a

        result of a bulldozer becoming stuck in the mud, rather than as a result of a

        traffic accident on a highway. He maintains that because, in Evans, the

        defendants argued that the plaintiff’s injury was foreseeable to the plaintiff since

        the plaintiff had encountered a similar experience in the past, the issue of

        foreseeability was different in Evans than it is here, and since in this case, “there




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 15 of 20
        is no evidence in the record about breach of reasonable care in prior occasions,”

        the instruction was given in error. Appellant’s Br. at 28.

[30]!   We disagree. In Evans, this court affirmed the use of the instruction, noting that

        it “correctly informed the jury that the theory of negligence includes an element

        of foreseeability.” Evans, 558 N.E.2d at 894. Importantly, this court also stated:

                We note the Evanses’ argument that the instruction was
                irrelevant because it was based on Alfano, supra, which involved a
                dog bite and not the removal of a bulldozer from mud. We find
                no merit in this argument because the case was cited for the
                general proposition of law regarding foreseeability. No attempt
                was made to analogize the particular facts in Alfano with the facts
                in the present case.

        Id.

[31]!   Here, as in Evans, the trial court used the instruction to generally inform the

        jury of the foreseeability element of the theory of negligence. Also, as in Evans,

        the trial court here did not analogize the facts in Evans with the facts in this

        case. Therefore, we conclude that the trial court did not abuse its discretion in

        delivering final instruction number 18.


                                           IV. Jury Verdict Form

[32]!   The final issue raised by Wilkerson is whether the trial court erred by giving the

        jury a verdict form that included two spaces for apportioning fault between

        Wilkerson and the defendants, rather than three spaces for apportioning fault

        between Wilkerson, Carr, and Lawyer Transport individually.




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 16 of 20
[33]!   Indiana Code section 34-51-2-11 provides: “The court shall furnish to the jury

        forms of verdicts that require only the disclosure of (1) the percentage of fault

        charged against each party and nonparty; and (2) the amount of the verdict

        against each defendant.”2 Wilkerson tendered a jury verdict form that included

        a space to allocate fault to Wilkerson, a space to allocate fault to Carr, and a

        space to allocate fault to Lawyer Transport. The verdict form given by the trial

        court, however, included only two spaces for allocating fault, one for Wilkerson

        and one for Carr and Lawyer Transport collectively. Wilkerson argues that he

        “should have been allowed to use a jury verdict form to attribute fault between

        Defendants Robert Carr and Lawyer Transport, Inc., similar to the verdict form

        utilized in [Indian Trucking v. Harber, 752 N.E.2d 168, 177 (Ind. Ct. App.

        2001).]” Appellant’s Br. at 29.


[34]!   Wilkerson’s reliance on Indian Trucking is misplaced. In Indian Trucking, the

        plaintiffs filed a complaint against several defendants, including the driver of

        the car in which the decedent was a passenger, the driver, and the owner of the

        commercial truck that collided with the car in which the decedent rode, as well

        as the motor carrier that employed the commercial truck driver. The complaint

        named each of the defendants individually. On appeal, the defendants-

        appellants argued that the trial court erred in submitting jury verdict forms that

        provided only one space for an aggregate percentage of fault for all of the

        defendants. This court agreed, concluding that the record contained sufficient


        2
         The Comparative Fault Act, Indiana Code section 34-51-2-1, provides for proportional allocation of fault,
        whereby each person whose fault contributed to the injury bears his proportionate share of the total fault.




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015           Page 17 of 20
        evidence to support separate jury verdicts against each of the defendants

        individually.

[35]!   Here, however, were only two defendants, rather than several, and Wilkerson

        admitted that the jury could not find against Carr without also finding against

        Lawyer Transport:

                Court: Have you made any claim that I’m not aware of or I’m
                not thinking right now about where you claim that Robert Carr
                was negligent in this case in a manner or at fault in this case in a
                manner which would not result in Lawyer Transport being
                responsible under the admissions that have been made in this
                case? Is there any way that this jury could find against Robert?
                Counsel: Individually?
                Court: And not find against Lawyer Transport?
                Counsel: No.
                Court: Then I’m going to give the instructions that we’ve
                discussed and I’m not going to give separate ones for Lawyer
                Transport and Robert Carr. And this is my reason. I don’t think
                it makes a difference unless it sets up the jury for error because
                the ultimate result is exactly the same either way we do it in this
                circumstance as it applies in this case.

        Tr. p. 815.

[36]!   Wilkerson’s counsel also agreed that, since they were proceeding under a theory

        of respondeat superior, regardless of how the jury might apportion fault between

        Carr and Lawyer Transport, the result would be the same for Wilkerson:

                Court: I understand that, that if this jury were to find, if this jury
                were to find, just as an example, 50 percent negligence by Mr.
                Wilkerson and 25 by Lawyer and 25 by Carr, 50/50, do you
                agree that you get money?




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 18 of 20
                Counsel: Yes.
                Court: Okay. Does the amount of money you get change . . . if it
                becomes 30/20?
                Counsel: No.
                Court: 40/10?
                Counsel: No.

        Tr. p. 813.


[37]!   Moreover, the trial court instructed the jury, without objection from Wilkerson,

        that “[i]f you find Robert Carr to have been negligent, you’re instructed that as

        a matter of law the carrier and codefendent Lawyer Transport, Inc., . . . is liable

        as a matter of law for any wrongful conduct of the driver, Robert Carr.” Tr. p.

        892.


[38]!   Under these facts and circumstances, the verdict form given by the trial court

        was not improper, since all parties agreed that Carr could not be found liable

        without also finding Lawyer Transport vicariously liable, and once the jury

        decided the extent to which the defendants were jointly liable, any

        apportionment of fault between the defendants under these facts and

        circumstances would be immaterial and would only serve to waste time and

        confuse the jury. See Utley v. Healy, 663 N.E.2d 229 (Ind. Ct. App. 1996); Evans,

        558 N.E.2d at 896.

[39]!   To the extent that Wilkerson claims that the jury’s ultimate allocation of sixty

        percent fault to himself would have been different had the trial court included

        separate spaced for Carr and Lawyer Transport, we reject this argument as well.



        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 19 of 20
        No basis exists to believe that the jury would have found Wilkerson to be less

        negligent had it had the opportunity to allocate fault between Carr and Lawyer

        Transport. We therefore conclude that the trial court did not err in submitting

        the jury verdict forms.

                                                   Conclusion

[40]!   For all of these reasons, we conclude that the trial court did not abuse its

        discretion in excluding testimony from Nogan, in refusing to give the jury two

        of the instructions tendered by Wilkerson, in giving the jury two instructions

        tendered by the defendants, or in failing to give the jury the verdict form

        tendered by Wilkerson.

        Affirmed.


        May, J., and Robb, J., concur.




        Court of Appeals of Indiana | Memorandum Decision 29A05-1410-CT-490 | August 20, 2015   Page 20 of 20
