                                                                                FILED
                                                                            Aug 18 2016, 8:14 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
John B. Drummy                                             Timothy S. Schafer
Mark D. Gerth                                              Timothy S. Schafer II
Kightlinger & Gray, LLP                                    Todd S. Schafer
Indianapolis, Indiana                                      Schafer & Schafer, LLP
                                                           Merrillville, Indiana
Crystal G. Rowe
Whitney E. Wood                                            Gregory W. Brown
Kightlinger & Gray, LLP                                    Brown & Brown, P.C.
New Albany, Indiana                                        Merrillville, Indiana
Keith A. Gaston
Bruce D. Jones
Cruser, Mitchell & Gaston, LLC
Indianapolis, Indiana
Julie R. Murzyn
O’Neill, McFadden & Willett, LLP
Schererville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

J.B. Hunt Transport, Inc., and                             August 18, 2016
Terry L. Brown, Jr.,                                       Court of Appeals Case No.
Appellants-Defendants,                                     45A03-1506-CT-670
                                                           Appeal from the Lake Superior
        v.                                                 Court
                                                           The Honorable Diane Kavadias
The Guardianship of                                        Schneider, Judge
Kristen Zak,                                               Trial Court Cause No.
Appellee-Plaintiff                                         45D11-0610-CT-190




Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016                           Page 1 of 32
      Baker, Judge.


[1]   In January 2006, Terry Brown was driving a semi tractor-trailer for his

      employer. While traveling on I-65 in snowy conditions, Brown lost control of

      the semi, which ended up jackknifed and disabled in the median. An hour

      later, a vehicle in which Kristen Zak was a passenger slid off of the same part of

      I-65 and crashed into Brown’s semi in the median. As a result of the accident,

      Zak suffered permanent, serious brain damage. Her guardians filed a complaint

      alleging negligence on the part of Brown and his employer.


[2]   J.B. Hunt Transport, Inc. (Hunt) and Terry L. Brown, Jr. (Brown) (collectively,

      the appellants) appeal following a jury verdict in favor of the Guardianship of

      Kristen Zak (Guardianship) on Guardianship’s negligence claim. The

      appellants raise the following arguments:


           The trial court improperly denied the appellants’ motion to bifurcate the
            trial on the issues of liability and damages.
           The trial court improperly admitted certain evidence and excluded
            certain other evidence.
           The trial court erroneously gave certain jury instructions and refused to
            give certain other jury instructions.
           The trial court should have granted the appellants’ motion for summary
            judgment and/or their motion for directed verdict on the issues of duty
            and proximate cause.
           There is insufficient evidence supporting the jury’s verdict.
           The jury erroneously apportioned fault.




      Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 2 of 32
      We find that there were multiple questions of fact that needed to be answered

      by a jury, and we find no basis on which to second-guess the jury’s answers.

      We also find no questions of law warranting reversal. Therefore, we affirm.


                                                           Facts   1




                                                   The First Accident

[3]   On January 17, 2006, Brown was a semi tractor-trailer driver employed by

      Hunt. 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. 2 The vehicle was in a jackknife position, abutted the guardrail adjacent




      1
       We held oral argument in Indianapolis on July 6, 2015. We thank counsel for both parties for their written
      and oral presentations.
      2
          No other vehicles were involved in the first accident.


      Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016                       Page 3 of 32
      to the southbound lanes, and was fully contained within the median,

      approximately 200 to 500 feet 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.




      Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 4 of 32
                                             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, 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.


                                            Post-Accident Fallout

[9]   Following the accident, Hunt’s claims department—as it does with all

      accidents—undertook a review to determine whether the first accident was

      preventable. To that end, Brown’s supervisor completed an Injury Investigation

      Report, Appellants’ App. p. 1398, and a Safety Event Review, id. at 1399.


      Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 5 of 32
       Hunt ultimately found that the accident was preventable, and as a result of its

       review, Brown’s employment was terminated.


                                                    The Litigation

[10]   On October 26, 2006, Guardianship filed a complaint against the appellants, 3

       alleging that Brown and Hunt were negligent and that their negligence caused

       her injuries. Guardianship contended that Brown was directly liable and that

       Hunt was vicariously liable. 4


[11]   On May 29, 2008, the appellants moved for summary judgment, arguing that

       they did not owe a duty to Zak and that Brown’s actions did not proximately

       cause Zak’s injuries. On November 25, 2009, the trial court denied the

       summary judgment motion. Subsequently, the trial court supplemented its

       ruling, finding as a matter of law that the appellants, “as operators and owners

       of a motor vehicle traveling the highways of the State of Indiana,” owed Zak a

       duty of care. Appellants’ App. p. 71.


[12]   Before the first scheduled trial, the appellants moved to bifurcate the issues of

       liability and damages. On January 12, 2011, the trial court granted the motion.

       On February 7, 2011, a trial on liability commenced, but it ended in a mistrial.




       3
        Guardianship also sued Robinson, the Indiana State Police, and the Indiana Department of Transportation.
       Those claims have been resolved.
       4
           Hunt admits that Brown was acting within the scope of his employment when the accident occurred.


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016                      Page 6 of 32
[13]   Before the second scheduled trial, Guardianship filed a motion to reconsider

       bifurcation, arguing that the law had changed since January 12, 2011, as a

       result of this Court’s opinion in Dan Cristiani Excavating Co. v. Money, 941

       N.E.2d 1072, 1076 (Ind. Ct. App. 2011). On September 22, 2014, the trial court

       granted Guardianship’s request and vacated the earlier bifurcation order. On

       October 27, 2014, the second trial began, but this trial also ended in a mistrial.


[14]   Before the third scheduled trial, Guardianship filed a motion in limine, seeking

       to exclude several pieces of evidence:


            Robinson’s two admissions that he had been driving seventy miles per
             hour when the second accident occurred;
            The fact that Robinson’s driver’s license had been suspended in the past;
            The fact that Robinson had once received a speeding ticket; and
            The fact that Robinson had, in the past, been found liable for driving-
             related offenses.

       The appellants also filed a motion in limine, seeking to exclude the following

       evidence:


            Hunt’s review of the accident and termination of Brown’s employment;
            The Indiana and Illinois Commercial Driver’s License (CDL) Test
             Booklets as evidence of a standard of care.

       The trial court denied Guardianship’s motion with respect to Robinson’s

       statements about his driving speed before the accident but granted the rest of

       Guardianship’s requests. The trial court denied the appellants’ motion to

       exclude the CDL Test Booklets as standard-of-care evidence. It also denied the

       motion to exclude reports resulting from Hunt’s internal review process, finding

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 7 of 32
       that these documents were not evidence of subsequent remedial measures, but it

       granted the appellants’ motion regarding any reference to the termination of

       Brown’s employment.


[15]   A third trial began on May 4, 2015. Following Guardianship’s case-in-chief,

       the appellants moved for a directed verdict; the trial court denied the motion.

       During the appellants’ case-in-chief, they called Gary Thomas, a safety

       compliance consultant and advisor, as a witness. On cross-examination,

       Thomas testified that any reasonable trucking company would monitor the

       weather conditions in the areas where its trucks were operating and even shut

       down trucks if necessary. He also opined that trucking companies should

       communicate with and assist their drivers in making these weather-related

       decisions. After the close of evidence, Guardianship moved to conform its

       pleadings to the evidence and allow the jury to assess direct—in addition to

       vicarious—fault against Hunt, based on Thomas’s testimony. Over objection,

       the trial court granted the motion.


[16]   On May 20, 2015, the jury returned a verdict in favor of Guardianship,

       imposing an aggregate damages award of $32.5 million. The jury assessed the

       following apportionments of fault: (a) 30% fault to Hunt; (b) 30% fault to

       Brown; and (c) 40% fault to Robinson. The appellants now appeal.




       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 8 of 32
                                     Discussion and Decision
                                         I. Procedural Issues
                                     A. Denial of Bifurcation
[17]   First, the appellants argue that the trial court erred by denying their motion to

       bifurcate the issues of liability and damages. According to the appellants, the

       tragic and sympathetic nature of Zak’s injuries unjustly prejudiced the

       appellants because it played on the sympathies of the jury as it considered the

       issue of liability. Thus, the appellants contend that the fair result would have

       been to bifurcate the two issues.


[18]   To prevail on a bifurcation motion, the defendant must first convince the court

       that it has a persuasive argument on the issue of liability, and then prove that it

       will suffer actual prejudice if the trial is not bifurcated. Dan Cristiani, 941

       N.E.2d at 1075-76. The Cristiani Court emphasized “the reluctance with which

       we reverse based on the failure to bifurcate, even if a high level of prejudice

       were shown, and implicitly even greater reluctance if prejudice is not as high.”

       941 N.E.2d at 1076-77.


[19]   Here, the trial court concluded that the appellants “have not shown that they

       have a persuasive argument on the question of liability or that they will suffer

       substantial prejudice in this case.” Appellants’ App. p. 74. The trial court

       pointedly observed that, “[h]aving conducted numerous jury trials involving

       substantial injuries to plaintiff, this court has confidence in the ability of a jury

       to ably decide the separate question of liability in accordance with the court’s

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016    Page 9 of 32
       instructions, even when presented with a sympathetic plaintiff.” Id. We see no

       error in the trial court’s analysis, and given our extreme reluctance to reverse on

       the basis of a ruling on a motion to bifurcate, we decline to reverse for this

       reason.


                                          B. Order in Limine
[20]   Next, the appellants argue that the trial court erred by excluding certain

       evidence and admitting other evidence in its order in limine issued before the

       third trial. The decision to admit or exclude evidence is within the sound

       discretion of the trial court. Weinberger v. Boyer, 956 N.E.2d 1095, 1104 (Ind.

       Ct. App. 2011).


                                     1. Robinson’s testimony
[21]   The appellants first contend that Robinson was permitted to give “speculative

       character” testimony and that the testimony was confusing and/or misleading.

       Appellants’ Br. p. 79. Specifically, Robinson testified that, based on his training

       as an emergency medical technician, if he had seen flashers and triangles on or

       near the median, he would have moved away from the danger and proceeded

       with caution. He also testified that he always reduces his speed if he feels that it

       is appropriate to do so; therefore, had there been some sort of visible warning,

       he would not have been driving 70 miles per hour at the time of the second

       accident. According to Robinson, it was “second nature” to him to slow down

       and change lanes if he observed warning lights or flashers on the side of the

       road. Tr. p. 2267. He testified that, as an ambulance driver, he had driven in

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 10 of 32
       icy or snowy conditions “[t]housands” of times, id. at 2272, and that if he had

       seen flashers and reflective triangles, he would have proceeded with caution

       and moved away from the danger, id. at 2291.


[22]   Indiana Rule of Evidence 404(a)(1) states that “[e]vidence of a person’s

       character or character trait is not admissible to prove that on a particular occasion

       the person acted in accordance with the character or trait.” (Emphasis added). In this

       case, Guardianship was not attempting to prove that Robinson had, in fact,

       acted on the night of the second accident in accordance with a character or

       trait. Instead, Guardianship posed hypothetical questions to Robinson about

       what he might have done, had Brown placed warnings on the roadway, and

       Robinson answered those questions based on his training and experience. This

       testimony does not constitute character testimony as defined by Rule of

       Evidence 404.


[23]   Guardianship contends, and the trial court agreed, that this testimony is

       admissible habit evidence under Rule of Evidence 406. Similar to Rule 404,

       Rule 406 states that “[e]vidence of a person’s habit or an organization’s routine

       practice may be admitted to prove that on a particular occasion the person or

       organization acted in accordance with the habit or routine practice.” (Emphasis

       added). Here, again, we note that by pursuing this line of questioning,

       Guardianship was not attempting to prove that Robinson had acted in a certain

       way on a particular occasion. Therefore, we do not find that this testimony

       constituted habit evidence as defined by Rule 406.



       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 11 of 32
[24]   Indiana Rule of Evidence 401 provides that evidence is relevant if it (a) has any

       tendency to make a fact more or less probable than it would be without the

       evidence; and (b) the fact is of consequence in determining the action. Here,

       one of Guardianship’s theories of liability was that, if Brown had turned on the

       semi’s flashers and placed reflective triangles on the roadway, the second

       accident would not have occurred. Therefore, Robinson’s testimony that, based

       on his training and experience as an ambulance driver, he would have

       proceeded with caution, slowed down, and avoided the warned-of area had

       there been visible flashers and/or triangles, is relevant as defined by Rule 401. 5


[25]   The appellants argue that, even if the evidence is relevant, Rule 403 provides

       that the evidence may be excluded if its probative value is outweighed by,

       among other things, confusing the issues or misleading the jury. The appellants

       contend that Robinson’s answer to the hypothetical questions was laden with a

       number of assumptions: “that he was traveling in the left lane (not the right) at

       the time he lost control; that the right lane would have been unoccupied such

       that he would have immediately changed lanes . . . ; and that the ice which may

       or may not have caused Robinson to lose control was located only in the left

       travel lane of I-65 North.” Reply Br. p. 25. We acknowledge the presence of




       5
         We note that, in the context of skilled lay witnesses offering opinion testimony pursuant to Indiana Rule of
       Evidence 701, this Court has held that such a witness may not base the opinion on a hypothetical question.
       Averitt Express, Inc. v. State, 18 N.E.3d 608, 612-13 (Ind. Ct. App. 2014). Here, however, Robinson was not
       offering opinion testimony. Instead, he was answering a hypothetical question based upon his own personal
       knowledge and experiences. Therefore, the Rule 701 prohibition on hypothetical questions does not apply in
       this case.

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016                        Page 12 of 32
       these assumptions in Robinson’s testimony. Indeed, had the appellants chosen

       to do so, they could have pointed out these assumptions during their cross-

       examination of Robinson, highlighting the issue for the jury. They elected not

       to pursue the line of questioning, however. Tr. p. 2325-26. We do not find that

       the presence of the above-listed assumptions renders the testimony overly

       confusing or misleading. Instead, they would potentially affect the weight to be

       assigned to the evidence—a task for the jury—rather than its admissibility. We

       decline to reverse on this basis.


                             2. Subsequent remedial measures
[26]   Next, the appellants argue that the trial court erred by admitting reports

       generated following Hunt’s review of the accident, as well as the deposition of

       David Rak, Brown’s supervisor at the time of the accident. The appellants

       contend that this evidence constitutes inadmissible evidence of subsequent

       remedial measures, which is barred by Indiana Evidence Rule 407. They direct

       our attention to caselaw standing for the proposition that evidence relating to a

       stage in the disciplinary/termination process of an employee at fault in an

       accident constitutes an inadmissible remedial measure. Strack & Van Til, Inc. v.

       Carter, 803 N.E.2d 666, 671 (Ind. Ct. App. 2004).


[27]   Indiana Rule of Evidence 407 states that evidence of “measures [that] are taken

       that would have made an earlier injury or harm less likely to occur” is

       inadmissible to prove negligence. In this case, the complained-of evidence is

       Hunt’s review and investigation of the accident. Guardianship insists that an


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 13 of 32
       investigation does not constitute a “measure” taken by the company.

       According to Guardianship, the “measure” that was taken here was Brown’s

       termination—which was redacted from the documents before submission to the

       jury.


[28]   Although we have been unable to find an Indiana case directly on point, other

       state and federal jurisdictions have addressed whether a post-incident

       investigation constitutes an inadmissible subsequent remedial measure. The

       majority of jurisdictions agree that a post-incident investigation and report of

       the investigation do not constitute inadmissible subsequent remedial measures.

       E.g., Prentiss & Carlisle Co. v. Koehring-Waterous Div. of Timberjack, Inc., 972 F.2d

       6, 10 (1st Cir. 1992) (holding that post-accident test of allegedly defective

       product is not a subsequent remedial measure); Wenger v. W. Pennsbro Twp., 868

       A.2d 638, 644 (Pa. Commw. Ct. 2005) (holding that post-accident engineering

       study itself was not a remedial measure as “the whole purpose of [the]

       investigation was to determine whether remedial measures were warranted”);

       Fox v. Kramer, 994 P.2d 343, 352-53 (Cal. 2000) (noting with approval that

       majority of courts “distinguish between an investigation and actual steps taken

       to correct a problem; postevent investigations do not themselves constitute

       remedial measures, although they migh provide the basis for such measures”)

       Ensign v. Marion Cnty., 914 P.2d 5, 7-8 (Or. Ct. App. 1996) (finding that

       investigation done and report prepared by sheriff’s board of review following a

       car accident was not a subsequent remedial measure). Other courts disagree.

       E.g., Maddox v. City of Los Angeles, 792 F2d 1408, 1417 (9th Cir. 1986) (holding


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 14 of 32
       that after a police officer used a choke hold on a suspect, subsequent internal

       affairs investigation was an inadmissible remedial measure); Martel v. Mass. Bay

       Transp. Auth., 525 N.E.2d 662, 664 (Mass. 1988) (holding that post-accident

       investigation is a “prerequisite to any remedial safety measure” and is

       “inextricably bound up with the subsequent remedial measures,” and was

       therefore inadmissible).


[29]   The Tenth Circuit Court of Appeals considered whether tests and a report

       prepared by a helicopter manufacturer following a helicopter accident was an

       inadmissible subsequent remedial measure. Rocky Mountain Helicopters, Inc. v.

       Bell Helicopters Textron, 805 F.2d 907 (10th Cir. 1986) (applying Federal Rule of

       Evidence 407, which is identical to Indiana Rule of Evidence 407). The Rocky

       Mountain Court found the evidence admissible, holding that


               [i]t would strain the spirit of the remedial measure prohibition in
               Rule 407 to extend its shield to evidence contained in post-event
               tests or reports. . . . [I]t is usually sounder to recognize that such
               tests are conducted for the purpose of investigating the
               occurrence to discover what might have gone wrong or right.
               Remedial measures are those actions taken to remedy any flaws or
               failures indicated by the test.


       Id. at 918 (emphasis added). Adding to this analysis, which we find to be

       sound, is the Supreme Court of Alaska, which considered whether a post-

       accident report was admissible. City of Bethel v. Peters, 97 P.3d 822 (Alaska

       2004). Finding that the investigation and report on the investigation did not

       constitute subsequent remedial measures, the Alaska Court reasoned as follows:


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016    Page 15 of 32
               Rule 407 prohibits evidence of “measures” that have been
               “taken.” We take “measures” to mean concrete actions, and to
               leave outside the rule’s prohibition preliminary investigations and
               recommendations pointing toward those actions. Even if post-
               accident investigations and reports were considered “measures,”
               the rule would not reach them. The rule excludes “subsequent
               measures” that would have reduced the likelihood of the accident
               if they had been “taken previously,” meaning before the accident.
               “One cannot investigate an accident before it occurs, so an
               investigation and report . . . cannot be a measure that is
               excluded.” The language of Rule 407 and the general
               presumption of admissibility laid down by Rule 402, along with
               persuasive authority from other courts, compel us to hold that
               evidence of post-accident investigations and recommendations
               are not automatically excluded as subsequent remedial measures.


       Id. (quoting Ensign, 914 P.2d at 7) (other internal citations and footnotes

       omitted). We find this analysis to be compelling, and agree that evidence of

       post-accident investigations are not automatically excluded as subsequent

       remedial measures. Therefore, in this case, the trial court did not err by

       admitting Hunt’s post-accident reports or Rak’s deposition.


                                       3. Indiana State Police
[30]   Finally, the appellants argue that the trial court should have admitted evidence

       that the Indiana State Police did not direct Brown to activate flashers or place

       reflective triangles near the jackknifed semi. They contend that this evidence

       was relevant to show what a reasonably prudent person under similar

       circumstances would have done following the accident.




       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 16 of 32
[31]   Here, Indiana State Police (ISP) was originally named a defendant in this case

       but was dismissed after summary judgment was granted in its favor. It was

       reasonable for the trial court to have found that, by seeking to introduce

       evidence that Corporal Weems did not direct Brown to activate flashers or

       place reflective triangles on the roadway, the appellants sought to imply fault on

       the part of ISP, which was no longer a party to the case. Indeed, after ISP’s

       motion for summary judgment—to which the appellants did not object—was

       granted, the appellants did not seek to have ISP named as a non-party. Had the

       appellants wished to include ISP as a party or non-party for the purpose of

       allocation of fault, they should have filed a motion to that effect or in some way

       indicated a wish to have ISP remain for the purpose of allocation of fault. See

       Bloemker v. Detroit Diesel Corp., 687 N.E.2d 358, 359-60 (Ind. 1997) (holding that

       if co-defendant is dismissed at summary judgment, defendant may not assert

       statutory nonparty defense unless defendant objected to the dismissal or

       otherwise asserted any claim that the other party should remain for purposes of

       allocation of fault).


[32]   Because the appellants did not preserve the right to include ISP as a non-party,

       the trial court could have concluded that to inject a possible question of fault on

       the part of the ISP would have confused and misled the jury. As we give our

       trial courts considerable leeway in conducting the required balancing under

       Rule 403, e.g., Anderson v. State, 681 N.E.2d 703, 706 (Ind. 1997), we are

       compelled by our standard of review to affirm this decision.




       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 17 of 32
                                        II. Substantive Issues
                                         A. Jury Instructions
[33]   Jury instructions are generally left to the sound judgment of the trial court.

       Franciose v. Jones, 907 N.E.2d 139, 151 (Ind. Ct. App. 2009). In reviewing a trial

       court’s decision to give or refuse an instruction, we consider whether the

       instruction correctly states the law, is supported by the record, and is

       substantively covered by other instructions. Id. When seeking a new trial on

       the basis of an improper jury instruction, a party must show a reasonable

       probability that her substantial rights have been adversely affected. Elmer

       Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind. 2001).


                           1. Giving of Instructions 15 and 32
[34]   The appellants contend that the trial court erred by giving Final Instructions 15

       and 32 and by supplying the jury with an incorrect verdict form permitting it to

       assess independent and vicarious fault against Hunt. Final Instruction 15

       provides as follows:

               The defendants agree that [Brown] was an agent of [Hunt] and
               acting within the scope of his authority at all times relevant to
               this lawsuit.


               If [Brown] wrongfully acted or failed to act, both [Hunt] and
               [Brown] are liable for that action or inaction.


               If you decide that [Brown] is liable, then you must decide that
               [Hunt] is liable. However, if you decide that [Brown] is not

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 18 of 32
        liable, then you must also decide that [Hunt] is not liable, unless
        you find separate and independent liability on behalf of [Hunt].


Appellants’ App. p. 97 (emphasis added). Final Instruction 32 reads:

        To decide if [Zak] is entitled to recover damages from [Hunt],


        [Brown], or [Robinson], and if so, the amount of those damages,
        apportion the fault of the defendants on a percentage basis. Do
        this as follows:


        First, if [Hunt], [Brown], and [Robinson], are not at fault, return
        your verdict for the defendants and against [Zak]; and deliberate
        no further. (Use Verdict Form A).


        If [Hunt], [Brown], or [Robinson] are at fault, decide each
        defendants’ [sic] percentages of fault that caused [Zak’s] injuries.
        These percentages must total 100 percent. Do not apportion fault
        to any other person or entity. (Use Verdict Form B).


        After you decide each defendant’s percentage of fault that caused
        [Zak’s] injuries, do the following:


        (1) Decide the total amount of [Zak’s] damages, if any. Do not
        consider fault when you decide this amount.


        (2) Multiply [Zak’s] total damages by each [Hunt], [Brown], and
        [Robinson’s] percentage of fault.


        (3) Return your verdict for [Zak] and against each defendant in
        the amount of the product of that multiplication.


Id. at 68 (emphasis added).

Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 19 of 32
[35]   Although they have framed their argument as one that relates to jury

       instructions, in truth, the appellants are arguing that the trial court improperly

       permitted Guardianship to conform its pleadings to the evidence at the close of

       the trial and assert an independent claim against Hunt for its alleged failures to

       monitor the weather before 6:00 p.m., direct Brown to shut down his semi

       before it reached the overpass, and communicate with Brown after the accident,

       instructing him to activate his flashers and set out reflective triangles.


[36]   Indiana Evidence Rule 15(B) states that “[w]hen issues not raised by the

       pleadings are tried by express or implied consent of the parties, they shall be

       treated in all respects as if they had been raised in the pleadings. Such

       amendment of the pleadings as may be necessary to cause them to conform to

       the evidence and to raise these issues may be made upon motion of any party at

       any time, even after judgment . . . .” Here, it was the appellants’ own expert

       who testified that any reasonable trucking company would make an

       “independent analysis” of the weather, and make an “independent decision” as

       to whether it was safe for its trucks to operate in the area. Tr. p. 2746. In

       Thomas’s opinion, the decision to keep driving in poor conditions is “not all on

       the driver . . . . The trucking company should assist the driver.” Id. at 2747.

       The trial court did not err by concluding, based on the appellants’ expert’s

       testimony, that the issue of Hunt’s direct liability had been brought into the

       litigation. Therefore, the trial court did not err by finding that this evidence

       created a separate, independent claim against Hunt and by permitting the

       pleadings to conform to that evidence.

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016    Page 20 of 32
[37]   Because the trial court did not err by allowing the pleadings to conform to the

       evidence, it did not err by giving Jury Instructions 15 and 32. Similarly, as for

       the verdict form, which listed Hunt and Brown separately, it is well established

       that a “trial court [is] required by statute to furnish a jury verdict form capable

       of showing the percentage of fault, if any, attributable to each defendant.”

       Indian Trucking v. Harber, 752 N.E.2d 168, 177 (Ind. Ct. App. 2001). This

       verdict form did not permit Guardianship to recover twice against Hunt;

       instead, it recovered against Brown (for which Hunt is vicariously liable, but it

       was Brown’s negligence for which damages were awarded) and against Hunt

       (for its own independent negligence). Consequently, we find no error in Jury

       Instructions 15 or 32 or in the verdict form.


                                   2. Giving of Instruction 22
[38]   Next, the appellants argue that the trial court erred by giving Final Instruction

       22, which provided as follows:

               When the events in this case happened, [FMCS] Regulation §
               392.14 provided as follows: “Extreme caution in the operation of
               a commercial motor vehicle shall be exercised when hazardous
               conditions, such as those caused by snow, ice, sleet, fog, mist,
               rain, dust, or smoke, adversely affect visibility or traction. Speed
               shall be reduced when such conditions exist. If conditions
               become sufficiently dangerous, the operation of the commercial
               motor vehicle shall be discontinued and shall not be resumed
               until the commercial motor vehicle can be safely operated.
               Whenever compliance with the foregoing provisions of this rule
               increases hazard to passengers, the commercial motor vehicle
               may be operated to the nearest point at which the safety of
               passengers is assured.”

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 21 of 32
               Also, when the events in this case happened, Indiana Code § 9-
               21-8-2 provided as follows: “Except, when passing a slower
               vehicle, entering or leaving a highway, or where a special hazard
               exists that requires, for safety reasons, the use of an alternate
               lane, a person may not operate a truck, truck tractor, trailer,
               semitrailer, or pole trailer on an interstate highway in any lane
               except the far right lane.”


               If you decide from the greater weight of the evidence that [Brown]
               violated [FMCS] Regulation § 392.14 or Indiana Code § 9-21-8-12, and
               that the violation was not excused, then you must decide that they were
               negligent.


               The above statutes do not apply to [Robinson] because he was
               not operating a commercial motor vehicle.


       Appellants’ App. p. 104 (emphasis added).


[39]   The appellants argue that this instruction is misleading, “as it fails to take into

       account that there were two distinct accidents—separated by one hour—and

       that Brown’s failure (if any) to comply with the above-cited statute and

       regulation . . . did not proximately cause Robinson to lose control of his vehicle

       and injure Zak in the second accident.” Appellants’ Br. p. 73. According to the

       appellants, whether they engaged in negligence per se by violating the above

       statutes is irrelevant because violation of a statutory duty is not actionable

       negligence unless it was a proximate cause of the plaintiff’s injuries.


[40]   It is well established that jury instructions are to be read as a whole. E.g.,

       Underwood v. Gale Tschuor Co., 799 N.E.2d 1122, 1128 (Ind. Ct. App. 2003) (“in

       determining whether the jury was properly instructed, we must read all of the

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016     Page 22 of 32
       jury instructions together and construe the instructions as a whole”). Other jury

       instructions clearly informed the jury of the causation requirement and of the

       elements—including causation—that Guardianship had the burden to prove.

       Appellants’ App. p. 86, 107, 109, 110. Therefore, we find no error in the trial

       court’s decision to give Instruction 22.


                 3. Refusal of Tendered Instructions 26 and 27
[41]   Next, the appellants argue that the trial court erroneously refused to give their

       Tendered Instructions 26 and 27. Tendered Instruction 26 states:


               In absence of notice to the contrary, Defendants [Hunt] and
               [Brown] had a right to assume that Co-Defendant [Robinson]
               would use reasonable care in driving on the highway, and
               Defendants [Hunt] and [Brown] had no duty to anticipate
               negligent acts on the part of Co-Defendant [Robinson].


       Id. at 159. Tendered Instruction 27 provides:


               The Defendants, [Brown] and [Hunt], did not owe a duty to
               [Robinson] or [Zak] to warn them that I-65 and the overpass
               located near the scene of the accident were in an unsafe condition
               due to the accumulation of ice and snow because the Defendants
               did not have any control over the highway or overpass.


       Id. at 162.


[42]   According to the appellants, these instructions are correct statements of law,

       supported by the record, and not covered by other instructions. The appellants

       insist that throughout the trial, Guardianship maintained that Brown should


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 23 of 32
       have anticipated that another motorist would have encountered the same ice.

       They argue that Brown had no duty to anticipate Robinson’s negligent acts.


[43]   As for tendered Instruction 26, its substance was covered by Final Instruction

       18, which states: “Unless a person using a road has notice to the contrary, that

       person is entitled to assume that others using the road will use reasonable care.”

       Appellants’ App. p. 100. Therefore, it was not error to decline to give tendered

       Instruction 26.


[44]   As for tendered Instruction 27, the trial court did not err by finding that it was

       confusing, misleading, and not supported by the evidence. Guardianship did

       not, in fact, maintain that the appellants had a duty to warn motorists of the icy

       bridge. Instead, the primary claim was that any reasonable truck driver would

       have slowed his speed while driving in poor conditions and warned “of his

       white truck in the median of a major highway, at night, during a snow storm

       after he himself lost control and crashed into the median.” Appellee’s Br. p. 51

       (emphasis omitted). Therefore, this tendered instruction was not supported by

       the record and the trial court did not err in declining it.


            B. Denial of Summary Judgment/Directed Verdict

                                       1. Standard of Review
[45]   Next, the appellants argue that the trial court should have granted their motion

       for summary judgment and motion for directed verdict because Guardianship

       failed to establish duty or proximate cause as a matter of law. Summary

       judgment is proper where no genuine issue of material fact remains and the

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 24 of 32
       movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). A

       directed verdict—also known as a judgment on the evidence—is proper where

       all or some of the issues are not supported by sufficient evidence. Ind. Trial

       Rule 50(A).


[46]   To prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty

       owed by the defendant to the plaintiff; (2) a breach of that duty by the

       defendant; and (3) an injury to the plaintiff proximately caused by the breach.

       E.g., Florio v. Tilley, 875 N.E.2d 253, 255 (Ind. Ct. App. 2007). Summary

       judgment is rarely appropriate in negligence cases. Id. Issues of negligence,

       contributory negligence, causation, and reasonable care are generally more

       appropriately left for the determination of a trier of fact. Id. at 256. In this case,

       the appellants argue that the trial court should have granted summary judgment

       based on the elements of duty and causation.


                                                    2. Duty
[47]   It is well established that “[t]he duty to exercise care for the safety of another

       arises as a matter of law out of some relationship existing between the

       parties[.]” Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1261 (Ind. Ct. App.

       1989). While duty is generally a question of law, “factual questions may be

       interwoven with the determination of the existence of a relation, rendering the

       existence of a duty a mixed question of law and fact, ultimately to be resolved

       by the fact-finder.” Id. at 1261-62.




       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 25 of 32
[48]   The duty alleged to be owed by the appellants to Zak is the general duty to use

       ordinary care to avoid injuries to other motorists. Romero v. Brady, 5 N.E.2d

       1166, 1168 (Ind. Ct. App. 2014), trans. denied. The appellants concede that this

       duty was owed by Brown to other motorists, but deny that Zak was another

       motorist at the time Brown’s accident occurred, given that her vehicle was still

       an hour away at that time. According to the appellants, while an operator of a

       motor vehicle owes a duty to others using a common highway simultaneously,

       in this case, Brown and Zak were never using the roadway simultaneously.


[49]   We disagree that so clear a line can be drawn as a matter of law. See, e.g., Ind.

       Limestone Co. v. Staggs, 672 N.E.2d 1377, 1380-84 (Ind. Ct. App. 1996) (finding

       a question of fact regarding duty of landowner to driver where driver lost

       control of vehicle, left roadway, and drove into a decades-old quarry located

       twenty-five feet from the highway); Smith v. Armor Plus Co., 617 N.E.2d 1346,

       1352 (Ill. App. Ct. 1993) (finding a question of fact regarding duty where truck

       had been abandoned on shoulder of highway for hours when another vehicle

       collided with it). The appellants would have us draw a line, but we question,

       where should it be drawn? What proximity is “close enough” or “simultaneous

       enough” for a duty to be imposed as a matter of law—within visible sight of the

       driver? Five minutes away? Ten? Thirty? We believe that this issue is heavily

       laden with factual questions that must be answered by a jury. Therefore, we

       believe that the trial court did not err by denying summary judgment and

       directed verdict on this issue.




       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 26 of 32
                                         3. Proximate Cause
[50]   As noted above, the question of proximate cause is generally left to the

       factfinder. Rhodes v. Wright, 805 N.E.2d 382, 388 (Ind. 2004). This tends to be

       the case because the question of causation often requires a weighing of disputed

       facts. Smith v. Beaty, 639 N.E.2d 1029, 1035 (Ind. Ct. App. 1994). It is well

       established that an injury may have more than one proximate cause. Hellums v.

       Raber, 853 N.E.2d 143, 146 (Ind. Ct. App. 2006). In determining whether an

       act is a proximate cause of an injury, we consider whether the injury was a

       natural and probable consequence of the negligent act, which, in light of

       attending circumstances, could have been reasonably foreseen. Collins v. J.A.

       House, Inc., 705 N.E.2d 568, 573 (Ind. Ct. App. 1999). In other words,

       “[w]hether or not proximate cause exists is primarily a question of

       foreseeability.” Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind.

       2002).


[51]   The appellants insist that even if their actions were negligent, those actions did

       not set into motion any chain of circumstances that contributed to or caused the

       second accident and Zak’s injuries. The conduct highlighted by Guardianship

       as negligent includes the following: Hunt’s failure to shut down its trucks due

       to the poor weather conditions; Brown driving too fast for weather conditions

       and in the wrong lane; Brown’s failure to keep a proper lookout and to avoid

       the first accident; after the accident, Brown’s failure to activate the emergency

       flashers or set out reflective triangles; Hunt’s failure to contact Brown and direct



       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 27 of 32
       him to turn on his flashers and set out triangles; and, Hunt’s failure to have

       other drivers stop at the scene to turn on the flashers and set out triangles.


[52]   It is well established that there may be more than one proximate cause of a

       plaintiff’s injuries. E.g., Hellums, 853 N.E.2d at 146. And indeed, in this case,

       the jury implicitly found as much by assigning 40% of the fault to Robinson.

       To resolve this case as a matter of law, however, we must find that under no

       circumstances could more than 0% of the fault be assigned to Hunt and Brown.


[53]   More specifically, to resolve proximate cause as a matter of law, we must find

       that “only a single conclusion can be drawn from the facts.” Florio, 875 N.E.2d

       at 256. In this case, we cannot make such a finding. While it may be true that

       the presence of the semi in the median did not cause Robinson to lose control of

       his vehicle, there is certainly a question of fact as to whether the presence of the

       semi in the median caused Zak’s injuries. Hunt’s own litigation director

       testified that having a semi disabled “[a]ny place off of the roadway is not a safe

       place[.]” Griffin Dep. p. 73. Zak’s treating neurologist testified that her brain

       injury was caused by the sudden impact with the 29,000-pound immovable

       semi; we agree with Guardianship that this testimony creates a question of fact

       as to whether Brown’s actions caused or contributed to the severity of Zak’s

       injuries.


[54]   Furthermore, if Brown’s negligence caused the first accident, a reasonable

       factfinder could conclude that it would be foreseeable that another vehicle

       would slide off the road in the same spot and strike the semi. This Court has


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 28 of 32
       addressed a similar issue previously and found that the jury must answer such

       questions:


               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, 533 N.E.2d at 1265 (internal citations omitted). Ultimately, while the

       second accident may seem to be considerably attenuated from the first, we

       cannot say as a matter of law that the appellants’ actions and omissions played

       no role whatsoever in proximately causing Zak’s injuries. These issues needed

       to be evaluated by a jury. Therefore, we find that the trial court did not err by

       denying summary judgment and directed verdict.


                                   C. Sufficiency of Evidence
[55]   The appellants also argue that there is insufficient evidence supporting the jury’s

       verdict in favor of Guardianship. In the appellate review of a claim of

       insufficient evidence in a civil case, we affirm when, considering the probative

       evidence and reasonable inferences, a reasonable jury could have arrived at the

       same determination. TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209

       (Ind. 2010). We will consider only the evidence and inferences most favorable

       to the judgment in conducting our review. Id. As noted above, to prevail on its

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 29 of 32
       negligence claim, Guardianship was required to prove a duty owed by the

       appellants to Zak; a breach of that duty; and an injury to Zak proximately

       caused by that breach. E.g., Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010).


[56]   With respect to duty, Guardianship offered evidence that, within an hour of

       Brown’s crash, Zak’s vehicle traversed the same stretch of I-65. And at the time

       Robinson lost control of his vehicle, Brown’s semi was jackknifed in the

       median. We find that a reasonable jury could have determined, based on this

       evidence, that Brown—and Hunt—owed a duty of care to Zak under these

       circumstances.


[57]   With respect to breach, Guardianship offered the following evidence:


            Brown was driving too fast for the weather conditions.
            Brown was driving in the left lane of the interstate, in violation of Hunt’s
             policies and procedures as well as Indiana Code section 9-21-8-12.
            Hunt failed to direct its drivers to shut down their trucks because of the
             weather.
            After the accident, Brown did not activate the semi’s flashers or place
             reflective triangles on the roadway. Hunt failed to direct him to do the
             same.
            Hunt’s own witnesses testified that Brown was driving too fast and that,
             by failing to activate flashers and place triangles on the roadway, he
             failed to comply with Hunt’s policies and procedures.

       We find that a reasonable jury could have determined, based on this evidence,

       that Brown and Hunt breached their duty of ordinary care owed to Zak.


[58]   With respect to proximate cause, Robinson testified that if he had seen flashers

       or warning triangles, he would have slowed his speed and moved into the right-

       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 30 of 32
       hand lane of travel. Whether that testimony is credible was for the jury to

       determine, and we will not second-guess the jury’s assessment on appeal. As

       noted above, Zak’s neurologist testified that her severe injuries were caused by

       her vehicle colliding with a stationary semi. Whether the placement of the semi

       in the median was a proximate cause of her injuries was for the jury to

       determine. We find that a reasonable jury could have determined, based on this

       evidence, that the negligent actions of Brown and Hunt proximately caused the

       injuries sustained by Zak. In sum, given our standard of review, we decline to

       reverse the jury’s verdict based upon insufficient evidence.


                                  D. Apportionment of Fault
[59]   Finally, the appellants argue that the jury’s comparative fault apportionment

       was against the weight of the evidence. The apportionment of fault is uniquely

       a question of fact to be decided by the factfinder. St. Mary’s Med. Ctr. of

       Evansville, Inc. v. Loomis, 783 N.E.2d 274, 285 (Ind. Ct. App. 2002). The only

       point at which it becomes an issue of law is when there is no dispute in the

       evidence and there is only one logical conclusion. Id.


[60]   Here, the jury apportioned 30% fault to Brown, 30% fault to Hunt

       (independently), and 40% fault to Robinson. The appellants argue that because

       the second accident would not have occurred if Robinson had remained in

       control of his vehicle, this apportionment of fault is erroneous. But the

       evidence also supports the jury’s conclusion that, had Brown not been driving

       negligently, the first accident would not have occurred, and the semi—which


       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 31 of 32
       caused Zak’s severe brain injury—would not have been in the median at the

       time of the second accident. In other words, this argument requires us to

       reweigh the evidence, which we may not do in considering apportionment.

       Dennerline v. Atterholt, 886 N.E.2d 582, 598 (Ind. Ct. App. 2008). There is

       simply no basis on which we can reverse the jury’s apportionment of fault in

       this case, and we decline to do so.


[61]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1506-CT-670 | August 18, 2016   Page 32 of 32
