                                         Apr 28 2015, 9:20 am




ATTORNEY FOR APPELLANT               ATTORNEY FOR APPELLEE
Patrick J. Murphy                    John C. Theisen
State Farm Litigation Counsel        Nathaniel O. Hubley
Indianapolis, Indiana                Theisen & Associates, LLC
                                     Fort Wayne, Indiana



                                IN THE
    COURT OF APPEALS OF INDIANA

Dawn Warrick and Nathan              April 28, 2015
Parrish,                             Court of Appeals Case No.
                                     92A03-1407-CC-257
Appellant-Defendants,
                                     Appeal from the Whitley Circuit
       v.                            Court
                                     The Honorable James R. Heuer,
                                     Judge
Steve and Mitzi Stewart,             Cause No. 92C01-1111-CC-694
Appellee-Plaintiffs




Bailey, Judge.
                                               Case Summary
[1]   Steve Stewart (“Stewart”) brought a negligence claim against Dawn Warrick

      (“Dawn”) and Nathan Parish (“Nathan”) (collectively, “the Warricks”) after

      Stewart’s motorcycle collided with the Warricks’ loose dog, causing Stewart to

      suffer personal injury.1 A jury found that Stewart was seventy percent at fault

      and accordingly returned a verdict for the Warricks. After Stewart filed a

      motion to correct error, the trial court granted the motion, set aside the jury’s

      verdict, and ordered a new jury trial. We affirm.



                                                          Issue
[2]   The Warricks present one issue for review: whether the trial court abused its

      discretion when it granted Stewart’s motion to correct error, set aside the jury’s

      verdict as against the weight of the evidence, and ordered a new trial.



                                Facts and Procedural History
[3]   At approximately 11:00 a.m. on October 11, 2010, a clear and dry morning,

      Stewart was driving his motorcycle south on Main Street in Columbia City,

      Indiana. After stopping for a red light at the corner of Main and Chicago

      Streets, Stewart turned left and headed east on Chicago. On his right, Stewart

      noticed a pickup truck beginning to exit the corner gas station onto Chicago.




      1
          Stewart’s wife, Mitzi Stewart, also brought a claim for loss of consortium.


      Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015          Page 2 of 15
      Concerned that the truck was going to pull out in front of him, he slowed down.

      When the truck driver braked and acknowledged Stewart, Stewart accelerated

      and continued east on Chicago. Stewart was looking forward, and in his

      peripheral vision, he did not see any cars coming from Whitley Street on his

      left.


[4]   Seconds later, a dog darted into the street and collided with Stewart’s

      motorcycle. He never saw the dog. Stewart gave conflicting testimony as to

      how many seconds elapsed between the time he braked for the truck and the

      time he hit the dog, but estimated his speed on impact as twenty-two to twenty-

      three miles-per-hour. He lost control of the bike, his helmet hit the pavement,

      and the motorcycle slid 102 feet to a stop. As a result of the crash, Stewart

      suffered injuries to his shoulder, collarbone, back, leg, and foot.


[5]   Christopher LaRue (“LaRue”) was driving a pickup truck about one hundred

      feet directly behind Stewart. From his vantage point, LaRue saw a dog,

      “running fast for a dog” (Tr. 157), dart out from behind a small concrete wall

      on the right side of the road and into Stewart’s path. LaRue estimated that

      Stewart was traveling twenty miles-per-hour when he hit the dog. When asked

      whether LaRue thought Stewart could have done anything to avoid the

      collision, LaRue opined that “if I would have been on a motorcycle, I would

      have hit the dog.” (Tr. 157.)


[6]   Columbia City Police Officer Peter Yorg (“Officer Yorg”) investigated the

      accident. Officer Yorg described the circumstances contributing to the crash as


      Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015   Page 3 of 15
      “the fact that the dog ran out in front of . . . the motorcycle and . . . the

      motorcycle . . . struck the dog and caused him to lose control.” (Tr. 174.)

      Officer Yorg’s investigation did not lead him to conclude that Stewart was at

      fault in any way.


[7]   At the time of the crash, Nathan was inside the Chicago Street home he shared

      with his mother, Dawn. The Warricks had recently acquired two dogs, one for

      each of them, which they kept inside the house. The Warricks did not have a

      fence around their property; thus, when they let the dogs outside, they

      restrained each dog in the backyard using a cable that attached to a yard stake

      on one end and the dog’s collar on the other. On the morning of the crash,

      Nathan let the dogs outside on their staked cables. Shortly after, Nathan heard

      the accident commotion outside. After discovering Dawn’s dog at the crash

      site, Nathan walked to the backyard where he found the escaped dog’s collar

      still clasped shut and attached to the staked cable; apparently, the dog had

      slipped the collar.


[8]   At trial, Dawn testified that she had fitted a new collar on the dog one week

      before the accident. However, Dawn admitted that the dog, which had

      obviously slipped out of the collar just before the crash, was not “properly

      restrained” and was “at large” in the city limits, in violation of Columbia City

      Ordinance section 90.03(K). Stewart’s dog training expert, Michael Rowland,

      Jr. (“Rowland”) testified that the collar was in good working order and the

      appropriate size for the dog. However, based on his review of the evidence, the

      only way the collar could come over the dog’s head was if the collar was

      Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015        Page 4 of 15
       improperly fitted. Rowland testified that the breed’s “head size is so much

       bigger than that area in the neck where [the collar] should be fitted, that it

       would be physically impossible for the dog to pull a properly fitted collar over

       its head.” (Tr. 219.)


[9]    Stewart filed a negligence claim against the Warricks on November 30, 2011,

       alleging that the Warricks were negligent in failing to restrain and supervise the

       dog and that their negligence was the cause of the crash and Stewart’s personal

       injuries. On May 14, 2014, at the conclusion of a two-day jury trial, the jury

       assigned seventy percent fault to Stewart and thirty percent fault to the

       Warricks. Because the jury found Stewart more than fifty percent at fault, the

       trial court entered judgment in favor of the Warricks.


[10]   Stewart then filed a motion to correct error, on which the court heard argument

       on June 19, 2014. (Tr. 364.) On June 25, 2014, the trial court granted Stewart’s

       motion to correct error, set aside the jury’s verdict as against the weight of the

       evidence, and granted a new trial. The Warricks now appeal.



                                   Discussion and Decision
                                          Standard of Review
[11]   Indiana Trial Rule 59 governs motions to correct error. Rule 59(J) provides

       that if a court determines that prejudicial or harmful error has been committed,

       the court shall take such action as will cure the error, including, among other

       possible remedies, granting a new trial. T.R. 59(J)(1). Further:

       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015    Page 5 of 15
               (7) In reviewing the evidence, the court shall grant a new trial if it
               determines that the verdict of a non-advisory jury is against the weight
               of the evidence; and shall enter judgment, subject to the provisions
               herein, if the court determines that the verdict of a non-advisory jury is
               clearly erroneous as contrary to or not supported by the evidence . . . .
       T.R. 59(J)(7).


[12]   Once the trial court has granted a new trial, this Court will reverse that decision

       only for an abuse of discretion. Barnard v. Himes, 719 N.E.2d 862, 865 (Ind. Ct.

       App. 1999), trans. denied. An abuse of discretion occurs when the court’s action

       is against the logic and effect of the facts and circumstances before it and the

       inferences that may be drawn therefrom. Id. The trial court’s decision to grant

       a new trial is given a strong presumption of correctness. Walker v. Pullen, 943

       N.E.2d 349, 351 (Ind. 2011). However, the strong presumption of correctness

       arises only if the trial court’s decision is supported by the special findings

       required by Trial Rule 59(J). Id. at 352.


[13]   Under Trial Rule 59(J), when any corrective relief is granted, “the court shall

       specify the general reasons therefor.” The rule also requires that, when a new

       trial is granted because the verdict does not accord with the evidence,

               the court shall make special findings of fact upon each material issue
               or element of the claim or defense upon which a new trial is granted.
               Such finding shall indicate whether the decision is against the weight
               of the evidence or whether it is clearly erroneous as contrary to or not
               supported by the evidence; if the decision is found to be against the
               weight of the evidence, the findings shall relate the supporting and
               opposing evidence to each issue upon which a new trial is granted; if
               the decision is found to be clearly erroneous as contrary to or not
               supported by the evidence, the findings shall show why judgment was
               not entered upon the evidence.

       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015           Page 6 of 15
       T.R. 59(J). Our supreme court has explained the purpose of the rule and the

       special findings:

                The purpose of authorizing the trial judge to grant a new trial, when
                the judge considers the verdict to be against the weight of the evidence,
                is to erase the occasional unsupportable jury verdict. It is to supplant
                that which is irrational with something that is rational. An order of
                court can fulfill this extraordinary and extreme function only if it is
                based upon a complete analysis of the relevant facts and applicable
                law, and sets out on paper the constituent parts of that analysis. It is
                compliance with the arduous and time-consuming requirements of the
                Rule which provides assurance to the parties and the courts that the
                judge’s evaluation of the evidence is better than the evaluation of the
                jury.
       Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265 Ind. 457, 464-65, 358

       N.E.2d 974, 978 (1976)). Thus, strict compliance with the substantive and

       procedural requirements of Trial Rule 59(J) is of “paramount” importance. Id.

       at 464.


                                                    Discussion
[14]   In its order containing specific findings, the trial court concluded that a jury

       verdict assigning seventy percent fault to Stewart for his role in the collision was

       against the weight of the evidence.2 The court also noted that “[a] verdict that




       2
         The trial court also made findings regarding the Warricks’ duty to restrain the dog. The court concluded
       that “[i]f the verdict of the jury was that Stewart was 70% at fault with respect to the dog getting loose, . . .
       the verdict is not just against the weight of the evidence, but . . . is clearly erroneous as contrary to and not
       supported by the evidence admitted at trial.” (App. 10-11.) On appeal, the parties agree that the trial court
       did not abuse its discretion when it concluded that there was no evidence that Stewart was at fault for the dog
       escaping.

       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015                            Page 7 of 15
       assigned a minimal percentage of fault to Stewart for failure to maintain a

       proper lookout would not be set aside.” (App. 13.) Because under the evidence

       presented it was “conceivable that [Stewart] be assigned minimal percentage of

       fault[,]” the court ordered a new trial. (App. 13.)


[15]   On appeal, the Warricks argue that the trial court’s grant of a new trial was an

       abuse of discretion because 1) the court’s special findings regarding Stewart’s

       speed were not supported by the evidence and were contrary to law, 2) the

       court’s written findings were inconsistent with the court’s decision to grant a

       new trial, and 3) the court gave the jury instructions on comparative fault but

       then decided on the motion to correct error that the evidence supported an

       allocation of only minimal fault to Stewart. We examine each of these

       arguments in turn.


                                                  Stewart’s Speed

[16]   The trial court found that “[a]ll of the evidence admitted at trial indicated

       Stewart was not speeding but was traveling under the speed limit.” (App. 12.)

       The Warricks argue that the trial court did not give sufficient weight to, or

       completely ignored, certain evidence related to Stewart’s speed. They argue

       that the court abused its discretion because only by improperly weighing or

       overlooking the evidence could the court have concluded that Stewart was not

       speeding and therefore only minimally at fault.


[17]   The Warricks do not dispute that both Stewart and LaRue testified at trial that

       Stewart was driving under the speed limit at the time of the crash. Rather, they


       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015   Page 8 of 15
       argue that Stewart’s deposition testimony, in which he only stated that his

       speed was under thirty miles-per-hour (not specifically twenty-two or twenty-

       three, as he stated at trial), and LaRue’s admission on cross-examination that

       he was driving, talking on his cell phone, and communicating with a passenger

       at the time he observed the accident and Stewart’s speed, sufficiently undercut

       the reliability of their testimonies such that the court could not have concluded

       that Stewart was driving the under the speed limit.


[18]   The Warricks’ argument regarding the reliability and credibility of eyewitness

       testimony goes to the weight of the evidence. When considering whether to

       grant a new trial, “the trial judge has an affirmative duty to weigh conflicting

       evidence.” Mem’l Hosp. of South Bend v. Scott, 261 Ind. 27, 33, 300 N.E.2d 50, 54

       (1973). “The trial judge sits as a ‘thirteenth juror’ and must determine whether

       in the minds of reasonable men a contrary verdict should have been reached.”

       Id. As the thirteenth juror, the trial judge 1) hears the case along with the jury,

       2) observes witnesses for their credibility, intelligence, and wisdom, and 3)

       determines whether the verdict is against the weight of the evidence. Precision

       Screen Machs., Inc. v. Hixson, 711 N.E.2d 68, 70 (Ind. Ct. App. 1999). On

       appeal, this Court “cannot assume the responsibility of weighing conflicting

       evidence[.]” Scott, 261 Ind. at 33.


[19]   Here, there was testimonial evidence that Stewart was not speeding. The court

       was able to assess the credibility of the witnesses during their testimony. The

       trial court’s acknowledgement that “Stewart gave varying accounts as to how

       many seconds he traveled from the point of slowing down for a truck” to the

       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015   Page 9 of 15
       point of impact reveals that the court considered apparent inconsistencies in

       Stewart’s testimony when making its decision. (App. 12.) Although the

       defense raised questions about the credibility of the witnesses, it was within the

       court’s purview to make credibility determinations. And no evidence was

       presented that Stewart was speeding. We therefore cannot say that the court’s

       conclusion that Stewart was driving under the speed limit was contrary to the

       evidence presented.


[20]   The Warricks also argue the “trial court’s outright rejection of the probative

       value” of the evidence regarding the distance the motorcycle slid from the point

       of impact to the point it stopped was contrary to law. (Appellant’s Br. 8.) They

       contend that the court’s alleged failure to consider this evidence runs contrary

       to our supreme court’s holding in Samuel-Hawkins Music Co. v. Ashby, 246 Ind.

       309, 205 N.E.2d 679 (1965). The court in Ashby held that, in the absence of

       direct testimony regarding a truck’s speed prior to a collision, the length of skid

       marks leading to the collision site, distance traveled after impact, and force of

       impact were sufficient evidence for the jury to consider the question of whether

       the truck driver was traveling at a high and dangerous rate of speed. Id. at 312-

       13.


[21]   We disagree that the trial court ignored the evidence of the motorcycle’s slide

       length or its probative value. Rather, the court included two references to the

       evidence in its special findings. The court found and concluded:

               21. Columbia City Police Officer Peter Yorg viewed the physical
               evidence, determined the point of impact and measured the distance

       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015     Page 10 of 15
               the motorcycle slid from point of impact to rest at 102 feet, and
               interviewed LaRue. Based on his training and everything he observed,
               Officer Yorg testified that the cause of the collision was the dog and
               that Stewart did not contribute in any way to causing the collision.
               [. . . .]
               25. The fact that the evidence showed the motorcycle slid 102 feet
               from point of impact to point of rest shows nothing that can be
               equated to fault on the part of Stewart. There was no evidence
               equating the 102 foot slide to any unlawful speed or other possible
               evidence of negligence.
       (App. 12.)


[22]   The special findings show that the trial court considered the evidence of the

       102-foot slide in conjunction with Officer Yorg’s testimony. The court also

       found that, absent further evidence equating the slide distance to an unlawful

       speed, the evidence offered little probative value for determining Stewart’s

       speed at the time of the crash. Furthermore, as the thirteenth juror, it was the

       court’s duty to weigh the evidence of the slide against the testimonial evidence

       about Stewart’s speed. The Warricks now request that this Court reweigh the

       evidence, which we cannot do on appeal.


[23]   The trial court did not abuse its discretion when it weighed the evidence

       presented regarding Stewart’s speed and concluded that Stewart was not

       speeding.


                                               Trial Court’s Order

[24]   The Warricks next argue that the trial court made “incompatible

       determinations” regarding Stewart’s fault for the collision and failure to

       maintain a proper lookout. (Appellant’s Br. 10.) The Warricks point to the
       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015      Page 11 of 15
       court’s findings that “there was no evidence at trial that Stewart should have

       seen the dog prior to the collision” and that “there was nothing he could do to

       avoid the collision.” (App. 11, 12.) They argue that these findings are

       inconsistent with the court’s ultimate decision that a new trial was appropriate

       because “it is conceivable that [Stewart] be assigned a minimal percentage of

       fault” due to failure to maintain a proper lookout. (App. 13.)


[25]   We think the Warricks read the trial court’s findings too selectively. In its

       special findings, the trial court reviewed both the supporting and opposing

       evidence. In addition to the evidence that Stewart was driving under the speed

       limit and LaRue’s opinion that “if I would have been on a motorcycle, I would

       have hit the dog” (Tr. 157), the court noted “that just prior to the collision

       Stewart slowed down for a truck attempting to pull out of the Gas America,

       acknowledged the driver of the truck and then proceeded down the street.”

       (App. 12.) The court acknowledged that Stewart gave “varying accounts” as to

       the number of seconds he traveled after braking for the truck and before the

       crash. (App. 12.) The court found an irregularity in Stewart’s testimony and

       recognized that a reasonable fact finder could have drawn an inference that

       Stewart was distracted, at least at some point, by the truck. However, the court

       concluded that while it was “conceivable” that Stewart failed to maintain a

       proper lookout, the “discrepancies in his testimony could not, in any event, lead

       to the rational conclusion that Stewart was at 70% fault in the collision.” (App.

       12.)




       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015   Page 12 of 15
[26]   One purpose of the special findings required by Trial Rule 59(J) “is to provide

       the parties and the reviewing court with the theory of the trial court’s decision.”

       DeVittorio v. Werker Bros., Inc., 634 N.E.2d 528, 531 (Ind. Ct. App. 1994). Based

       on the special findings, we understand the trial court’s theory to be that the

       weight of the evidence demanded a greater allocation of fault to the Warricks

       for their negligence in improperly restraining the dog than to Stewart for his

       driving, even though Stewart may have been distracted at some point by

       another potential hazard on the road. There was ample evidence presented that

       the Warricks negligently failed to restrain the dog and that, but for their

       negligence, the dog would not have been in the path of Stewart’s motorcycle in

       the first place. Give the “strong presumption of correctness” we afford the trial

       court’s decision, Walker, 943 N.E.2d at 352, we cannot say, from our review,

       that the court abused its discretion when it set aside a jury verdict allocating

       more than fifty percent fault to Stewart. See Barnard, 719 N.E.2d at 867

       (holding that trial court did not abuse its discretion when it set aside a jury

       verdict as against the weight of the evidence where the jury assigned only one

       percent fault to a driver who crossed the centerline and hit a second car in its

       lane of travel).


                                                 Jury Instructions

[27]   Finally, the Warricks argue that the trial court’s assessment of the evidence on

       the motion to correct error, and Stewart’s arguments in support of the motion,

       are “incongruous” with their actions at trial. (Appellant’s Br. 11.) Specifically,

       they contend that, because the trial court concluded that the evidence supported

       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015   Page 13 of 15
       only a finding that Stewart was minimally at fault, the trial court should not

       have given a jury instruction on comparative fault and, in any case, Stewart

       should have objected to the instruction at trial in order to preserve his

       arguments on appeal. The Warricks argue, then, that the trial court’s decision

       to set aside the jury’s verdict after giving the comparative fault instruction

       amounts to an abuse of discretion.


[28]   The Warricks cite no authority to support their position that a trial court abuses

       its discretion when it gives a jury instruction on comparative fault but, when

       asked to review the evidence on a motion to correct error, finds that the

       evidence supported assigning only a minimal percentage of fault to the plaintiff.

       This case squarely presented the issue of comparative fault, and it was

       appropriate for the trial court to present the instruction to the jury. Even

       though the trial court ultimately concluded that the jury’s allocation of fault was

       not supported by the evidence, the question of the measure of Stewart’s fault

       was properly before the jury. And as the court concluded, “[a] verdict that

       assigned a minimal percentage of fault to Stewart for failure to maintain a

       proper lookout would not be set aside.” (App. 13.) Further, we observe that

       Stewart was not required to object to the jury instruction on comparative fault

       in order to preserve the issue and argument for the motion to correct error or

       appeal. See Burton v. Bridwell, 938 N.E.2d 1, 5-6 (Ind. Ct. App. 2010) (holding

       that plaintiff, who failed to object to a pattern verdict form that permitted

       allocation of fault to her, did not waive her right to challenge the allocation of




       Court of Appeals of Indiana | Opinion 92A03-1407-CC-257 | April 28, 2015    Page 14 of 15
       more than fifty percent fault to her on the basis of insufficient evidence where

       plaintiff filed a motion to correct error), trans. denied.



                                                 Conclusion
[29]   The trial court did not abuse its discretion when it granted Stewart’s motion to

       correct error, set aside the jury’s verdict as against the weight of the evidence,

       and ordered a new trial.


[30]   Affirmed.


       Riley, J., and Barnes, J., concur.




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