                                                                          FILED
                                                                     Jan 18 2017, 8:30 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jeffrey C. Gerish                                         Douglas D. Small
      Plunkett Cooney                                           Edmond W. Foley
      Bloomfield Hills, Michigan                                Foley & Small
                                                                South Bend, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      The Estate of Gary Pfafman,                               January 18, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                57A03-1603-CC-516
              v.                                                Appeal from the Noble Circuit
                                                                Court
      Lori Lancaster, Individually, and                         The Honorable G. David Laur,
      as Guardian of the Estate of                              Judge
      Kole Craig,                                               Trial Court Cause No.
      Appellee-Plaintiff.                                       57C01-1306-CC-30




      Najam, Judge.


                                        Statement of the Case
[1]   The Estate of Gary Pfafman (“Pfafman’s Estate”) appeals the trial court’s grant

      of a new trial following a jury verdict in favor of the Estate on a complaint filed

      by Lori Lancaster, Individually and as Guardian of the Estate of Kole Craig

      (“Craig’s Estate”). Pfafman’s Estate presents two issues for our review, one of

      Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017              Page 1 of 34
      which is dispositive, namely, whether the trial court complied with the

      requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the

      grounds that the verdict was against the weight of the evidence and that the

      evidence was insufficient to support the jury’s verdict. We reverse.1


                                      Facts and Procedural History
[2]   In 2004, Roger Diehm had a feed barn2 (“the barn”) built on his farm in Noble

      County. Diehm asked his brother-in-law Pfafman, an electrician and sole

      proprietor of a small business doing electrical work, for help with the electrical

      work in the barn. Through a bartering arrangement, Pfafman agreed to help

      Diehm. Diehm, who had previously worked as a general contractor and

      developer, assisted Pfafman with some aspects of the electrical work in the

      barn. Diehm began the work by himself when he “ran the trenching and got all

      the electrical to the barn.” Tr. at 702. Diehm did “80 to 90 percent” of the

      electrical work in the new barn by himself. Id. at 954. Pfafman then “set the

      panel” and installed the lights. Id. at 702.


[3]   In particular, Pfafman: purchased and installed a service panel box and circuit

      breakers for the barn; connected the panel box to the power line running to the

      barn from an old barn; installed junction boxes in the barn; installed a ground




      1
          We heard oral argument in this case on November 21, 2016.
      2
          The barn is also referred to as a hay barn.


      Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 2 of 34
      wire and ground rod3; installed electrical switches, including ground fault circuit

      interrupter (“GFCI” or “GFI”) plugs; and installed all of the electrical

      connections. At that time, in 2004, Diehm did not need electricity to run to two

      water troughs located in the barn, but “he wanted wires run back” to the

      troughs in the event that he would install de-icing units (“de-icers”) for the

      troughs at some time in the future. Id. at 485. Accordingly, Pfafman installed

      “a ten-foot piece of pigtail that [he] rolled up and taped and fastened” in a

      junction box.4 Id. at 488. Pfafman told Diehm that the pigtail “wasn’t GFI[-

      ]protected and it should [be] GFCI protected before [doing] anything down in

      there.” Id. at 485.


[4]   In 2007, Diehm, without consulting Pfafman or requesting help, purchased and

      installed de-icers for the water troughs in the barn. The instruction booklets for

      the de-icers stated in relevant part that, when installing the de-icers, “a qualified

      electrician [shall] install a properly grounded receptacle outlet” to the heater.

      Id. at 249. Despite that instruction, and despite Pfafman’s instructions in 2004

      that Diehm would have to install GFCI protection if he ever installed de-icers,

      Diehm did not install GFCI protection for the de-icers. Diehm also reversed

      the positive and negative wiring to one of the connectors to the de-icers. And

      Diehm left the de-icers in the troughs and plugged in year-round, contrary to

      the instruction on the de-icers’ labels, which stated that they should be “store[d]




      3
          Diehm confirmed that Pfafman grounded the panel box.
      4
          The parties do not define “pigtail” in this context.


      Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 3 of 34
      indoors after [the] winter season,” and the written instructions for the de-icers,

      which stated that the units should be unplugged “when not in use or before

      removal from the tank.” Id. at 248, 250.


[5]   During the evening of July 28, 2010, then sixteen-year-old Kole Craig was

      socializing with Diehm’s children at the Diehm home on the farm. A severe

      thunderstorm had passed through the area earlier that day, including “a really

      big strike” of lightning nearby. Id. at 137. In fact, at approximately 4:00 that

      afternoon, lightning struck a tree on the farm, and Diehm had noticed that the

      lightning strike “had burnt up an outlet or two in the kitchen.” Id. at 942. And

      at some point during the evening, Diehm’s daughter Lynn was in the house

      when her little brother Samuel told her that there was a dead heifer near the

      barn. Lynn decided to go check on the heifer, and Craig volunteered to go with

      her.


[6]   Lynn and Craig made their way to the barn and went inside. They could see

      the heifer lying on the ground outside the “head gates” to the barn. Id. at 121.

      Lynn started to move towards the heifer, but Craig stopped her and told her

      that he would check on it. So Lynn backed up, and Craig “grabbed onto the

      head gate and was like leaning and he stopped.” Id. After a short time, Lynn

      noticed that Craig was not moving, and she asked him if he was okay. Craig

      did not respond, so Lynn touched him and felt a “vibration.” Id. at 122. Lynn

      soon realized that Craig was “getting shocked” and she “pulled him off” and

      “laid him down” on the ground. Id. Lynn saw blood coming out of Craig’s

      mouth, and Craig did not have a pulse. Lynn had “accidentally called” her

      Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 4 of 34
      mom on her cell phone during that time, so Lynn’s mom heard everything and

      called 9-1-1. Id.


[7]   Emergency medical technicians arrived and transported Craig to a hospital in

      Fort Wayne, and Craig was ultimately transported to Riley Hospital for

      Children in Indianapolis. Craig had sustained an electric shock, which caused

      him to go into “full cardiac arrest” and ventricular fibrillation. 5 Id. at 149. As a

      result, Craig suffered a severe, permanent anoxic brain injury, and he was

      comatose for several days. Craig underwent months of therapy for cognitive,

      memory, executive functioning, and processing deficits.


[8]   An investigation into what caused the electric shock revealed several factors

      that contributed to the short-circuiting of the de-icer and electrification of the

      head gates. A summary of the results of that investigation is as follows:


                 During the midafternoon of July 28, 2010, thunderstorms passed
                 through Noble County, including over the Diehm farm. The
                 Diehm farm experienced several lightning strikes, including one
                 by a tree near the Diehm’s home. It was near that tree that the
                 underground electrical service from the main service disconnect
                 ran back to the old barn and from there branching out to other
                 locations, including the feed barn. With the lightning strike, an
                 electrical surge from the lightning passed through that electrical
                 service and onto the feed barn. That power surge led to the de-
                 icer in the north waterer short[-]circuiting. The electrical surge
                 caused the fine nichrome wire coil in the interior ring of the de-
                 icer to break apart with the electrical surge fusing the insulating
                 magnesium oxide around the coil and that fused material
                 provided a connection from the energized nichrome coil wire to



      5
          Ventricular fibrillation is when “the heart is quivering” but is not pumping blood in or out. Tr. at 150.


      Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                            Page 5 of 34
                the steel shroud of the heater. The shroud was connected to the
                ground wire within the de-icer’s power cord and, as Mr. Diehm
                had cross-wired the plug, the electrical current flowed back to the service
                panel box. Because Mr. Pfafman had not installed a bonding jumper at
                the service panel box, the electrical current did not flow to the breaker.
                Consequently, the breaker did not trip to de-energize the circuit.
                Instead, electrical current flowed to the panel box and ground
                wire and energized the metal feed barn, including the metal
                stanchion, which Kole Craig would eventually come to touch. In
                addition, because GFCI protection had not been installed on the deicer
                circuit, there was no GFCI plug or breaker in place that would have
                tripped with the short circuit and thereby de-energized the line. As a
                result, when Kole Craig accompanied Lynn Diehm to check on
                the dead steer, the feed barn and the metal stanchion were hot
                with electricity.


      Appellees’ Br. at 20-21 (emphases added).


[9]   Craig’s Estate filed a complaint against Pfafman, Farm Innovators,6 and

      Cooper Industries7 alleging negligence and product liability, respectively. 8

      Craig’s Estate dismissed Cooper Industries prior to trial “due to a lack of

      evidence establishing liability.” Appellees’ Br. at 7. Craig’s Estate’s “claims

      against Farm Innovators were settled before trial.” Id. And, “[p]rior to suit

      being filed, a settlement was reached” with Diehm. Id.




      6
          Farm Innovators manufactured the de-icer involved in the electric shock incident.
      7
          Cooper Industries manufactured an electrical plug used to connect the de-icer.
      8
        Neither of the parties has provided this court with a copy of the complaint or any amended complaints, and
      neither party states the date that the original complaint was filed. Accordingly, we glean what we can
      regarding the allegations in the complaint from the appellees’ brief. We note that the CCS does not indicate
      the date that the initial complaint was filed.

      Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                     Page 6 of 34
[10]   On November 2, 2015, a five-day jury trial began on Craig’s Estate’s claims

       against Pfafman. Craig’s Estate argued that Pfafman was negligent in the

       following ways: he failed to install a “bonding jumper” 9 when he installed the

       service panel box in the barn, in violation of the National Electrical Code

       (“NEC”); he used “type NM wire”10 without placing it inside conduit, in

       violation of the NEC; and he failed to install GFCI protection to the lines

       placed for future use in the de-icers, in violation of the NEC. Pfafman’s Estate11

       argued that Pfafman did not breach his duty of care to Craig and, in the

       alternative, that his alleged breach of duty was not a proximate cause of Craig’s

       injuries. In particular, Pfafman’s Estate named Diehm and Farm Innovators as

       non-parties and argued that the jury could find that any one of the breaches of

       duty by Diehm and Farm Innovators proximately caused Craig’s injuries,

       including: Diehm’s decision to install de-icers in 2007 without consulting

       Pfafman at that time; Diehm’s incorrect wiring of the de-icer that ultimately

       contributed to cause the short-circuit and the electric shock incident; Diehm’s

       failure to install GFCI protection to the de-icers despite the installation

       instructions and Pfafman’s previous instruction; Diehm’s failure to unplug and

       store the de-icers during the summer months; and a possible defect in the de-icer




       9
         A bonding jumper is a steel bracket that was required to be installed in the three-wire service panel box for
       proper grounding.
       10
          According to expert testimony, using type NM wire in a barn environment without protective conduit
       violates the National Electrical Code.
       11
            Pfafman died prior to trial, but he had given a deposition in this case prior to his death.


       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                         Page 7 of 34
manufactured by Farm Innovators. The trial court instructed the jury in

relevant part as follows:


        Negligence is the failure to use reasonable care. A person may be
        negligent by acting or by failing to act. A person is negligent if he
        or she does something a reasonably careful person would not do
        in the same situation, or fails to do something a reasonably
        careful person would do in the same situation. A person’s
        conduct is legally responsible for causing an injury if: (1) the
        injury would not have occurred without the conduct, and (2) the
        injury was a natural, probable, and foreseeable result of the
        conduct. This is called a “responsible cause.” Sometimes an
        unrelated event breaks the connection between a defendant’s
        negligent action and the injury a plaintiff claims to have suffered.
        If this event was not reasonably foreseeable, it is called an
        “intervening cause.” When an intervening cause breaks the
        connection between a defendant’s negligent act and a plaintiff’s
        injury, a defendant’s negligent act is no longer a “responsible
        cause” of that plaintiff’s injury. A contractor is liable for injuries
        of third persons after acceptance by the property owner where the
        work is reasonably foreseeable to endanger third parties if an[d]
        only if negligently completed by the contractor. An injury is
        foreseeable when a person should realize that his act or failure to
        act might cause that injury. A party who violates a building,
        electrical or other code is not automatically liable. . . . A
        defendant may identify as a “nonparty” any person the defendant
        claims was at fault and caused any or all of the plaintiff’s claimed
        damages. In this case, the Estate of Gary Pfafman (Pfafman) has
        named Roger Diehm as a non-party. Pfafman has the burden of
        proving by the greater weight of the evidence that Roger Diehm
        was at fault. Pfafman has also named Farm Innovators, Inc., as
        a non-party. . . . To decide if Kole Craig is entitled to recover
        damages from the Estate of Gary Pfafman, and, if so, the amount
        of those damages, [you must] apportion the fault of Gary
        Pfafman, Roger Diehm and Farm Innovators, Inc. on a
        percentage basis. Do this as follows: First, if Gary Pfafman is not

Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 8 of 34
                at fault, return your verdict for the Estate of Gary Pfafman and against
                Kole Craig, and deliberate no further. . . .


       Tr. at 1114-24 (emphasis added).


[11]   The jury entered a general verdict in favor of Pfafman’s Estate. Craig’s Estate

       then filed a motion to correct error and for a new trial alleging that the verdict

       was against the weight of the evidence. Following a hearing, the trial court

       adopted, verbatim, Craig’s Estate’s proposed findings of fact and conclusions of

       law and granted the motion to correct error and ordered a new trial.12 The trial

       court found and concluded in part as follows:


                II. Facts and Testimony Favorable to the Defense

                A. In 2004, Mr. Diehm had informed Mr. Pfafman that Mr.
                Diehm might install deicers in the future if problems occurred
                with freezing water in the water troughs. Mr. Pfafman testified
                that he told Mr. Diehm that if Mr. Diehm did install deicers that
                Mr. Diehm would need to install [a] Ground-Fault Circuit
                Interrupter on [sic] for the deicers.

                B. Three years after building the hay barn, Mr. Diehm installed
                deicers in the two water troughs in the hay barn. Farm
                Innovators, Inc., manufactured the deicers. When installing the
                deicer to the north water trough, Mr. Diehm incorrectly wired
                the Cooper manufactured electrical connector. The energized




       12
          While we acknowledge that the verbatim adoption of a party’s findings and conclusions leaves us with a
       lower level of confidence that the findings reflect the independent judgment of the trial court, we do not find
       that the trial court’s findings of fact and conclusions of law in this case are inherently suspect because they
       are verbatim reproductions of Craig’s Estate’s submission. See Kitchell v. Franklin, 26 N.E.3d 1050, 1058 (Ind.
       Ct. App. 2015), trans. denied.

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                        Page 9 of 34
        conductor was placed on the neutral terminal and the neutral
        conductor was placed on the energized terminal. This violated
        the National Electric Code.

        C. Mr. Diehm did not install a Ground-Fault Circuit Interrupter
        for the circuit to the deicers.

        D. Mr. Diehm did not properly maintain and store the deicers,
        contrary to Farm Innovators’ instructions, including leaving the
        deicers in the waterers year-round and not cleaning the deicers.

        E. Farm Innovators, Inc., like Roger Diehm, was named as a
        non-party defendant under the Indiana Comparative Fault Act
        by Pfafman. Farm Innovators, Inc., is a corporation organized
        and existing under the laws of Indiana and has its principal place
        of business in Plymouth, Indiana. Pfafman asserted the Farm
        Innovators’ deicers contained defects in manufacture, design, and
        warnings. Pfafman asserted the Farm Innovators’ deicer
        involved in the incident had an internal fault which contributed
        to the barn becoming energized. Pfafman offered the testimony
        of Elizabeth Buc and James Finneran to support this defect
        contention.

        F. The defense contended at trial that Mr. Pfafman performed
        his electrical installation work at the Feed Barn as a favor for his
        brother-in-law, Roger Diehm, and that Pfafman’s work was only
        to supply lights at the Feed Barn.

        G. Pfafman was not aware of Roger Diehm’s installation of the
        deicers at the Feed Barn in approximate[ly] 2007.

        H. Roger Diehm form[er]ly operated a residential and
        commercial construction business.

        I. The lightning strikes at the Diehm farm were a cause of the
        deicer to malfunction. A lightning strike triggered the short-
        circuiting of the deicer in question.

Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 10 of 34
        III. Facts and Testimony Supporting the Grant of a New Trial — That
        Gary Pfafman Was Negligent and Liable.

        A. Michael Franks. Mr. Franks has been a licensed electrician
        since 1972. Mr. Franks was called to the farm by Roger Diehm
        after Kole Craig’s electrical shock. Mr. Franks discovered the
        absence of a bonding jumper in the panel box at the Feed Barn
        and he was the one who installed the copper wire to serve as a
        bonding jumper connecting the ground bar to the neutral bar.

        1. He testified that the electrical work at the Feed Barn should
        have been completed by Pfafman in compliance with the NEC.
        He testified that a main bonding jumper is required by the
        National Electrical Code and that connecting the bonding jumper
        is the most important connection any electrician can make to the
        service panel.

        2. Mr. Franks indicated that had the bonding jumper been in
        place the circuit breaker would have blown as soon as the deicer
        shorted. The Feed Barn structure would have deenergized
        immediately with the circuit being broken and Kole would not
        have been shocked. He indicated that without the bonding
        jumper the hay barn was not properly grounded. He stated
        that without the bonding jumper the electrical service panel was
        an accident waiting to happen — the building would become
        “hot” with any short circuit event.

        3. Mr. Franks testified that had Mr. Pfafman installed a GFCI
        circuit breaker that too would have prevented Kole’s electric
        shock incident. The NEC requires the installing electrician, here
        Mr. Pfafman, to place either a GFCI circuit breaker or GFCI
        plug on the circuit going out to the waterers. With the short
        circuit in the deicer, such GFCI protection would have
        immediately tripped, deenergizing the building and preventing
        the electric shock event to Kole.



Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 11 of 34
        4. He testified that even though Mr. Diehm had mis-wired the
        outlet plug, the presence of the bonding jumper would have
        prevented the incident as the short circuit would have blown the
        breaker. He testified that the ultimate safety guard in an
        electrical panel box is the bonding jumper.[13]

                                                  ***

        V. Conclusions of Law and Ruling That a New Trial Should Be
        Granted

        A. The verdict was against the weight of the evidence in that the
        evidence showed Gary Pfafman violated the NEC and was
        negligent in failing to install a bonding jumper in the service
        panel box at and for the Feed Barn.

        B. The verdict was against the weight of the evidence in that the
        evidence showed that had Mr. Pfafman installed a bonding
        jumper, Kole Craig would not have been shocked as the short
        circuit with the deicer would have caused the circuit breaker to
        blow and such would have deenergized the Feed Barn structure.

        C. The verdict was against the weight of the evidence in that the
        evidence showed Gary Pfafman violated the NEC and was
        negligent in failing to install GFCI protection to the circuit going
        out to the waterers. It was a violation of the NEC and negligent
        for Mr. Pfafman to leave his work at the Feed Barn with a taped
        end, 10 foot coiled wire left hanging from the support beam
        above the waterer. It was similarly a violation of the NEC for
        Mr. Pfafman to leave his completed installation work at the Feed




13
   The trial court’s findings also include synopses of the testimony of several other experts and other
witnesses at the trial, but the substance of each of those synopses is similar to that regarding Franks’
testimony. The bottom line is that there was a great deal of expert witness testimony supporting Craig’s
Estate’s contention that Pfafman breached his duty of care to Craig and that his breaches of duty proximately
caused Craig’s injuries.

Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                      Page 12 of 34
        Barn with no GFCI protection installed on the circuit going to
        the waterers, when that circuit was in an outdoor, wet
        environment and for a water application — a deicer for a
        waterer.

        D. The verdict was against the weight of the evidence in that the
        evidence showed that had Mr. Pfafman installed GFCI
        protection, either a GFCI breaker or a GFCI plug, on the circuit
        going out to the water[er]s, Kole Craig would not have been
        shocked. The short circuit with the deicer would have caused
        such GFCI protection to trip and instantaneously deenergized
        the Feed Barn structure.

        E. The verdict was against the weight of the evidence in that the
        evidence showed elements of cause and proximate cause were
        proven by the plaintiffs. Under Indiana law, a negligent
        defendant is liable for a plaintiff’s injury if his or her actions were
        a proximate cause of that injury. Our Indiana Supreme Court
        has stated that a “negligent act is the proximate cause of an injury
        if the injury is a natural and probable consequence, which in the
        light of the circumstances, should have been foreseen or
        anticipated.” Bader v. Johnson,732 N.E.2d 1212, 1218 (Ind. 2000)
        (emphasis added). As a result, “liability may not be imposed on
        an original negligent actor who sets into motion a chain of events
        if the ultimate injury was not reasonably foreseeable as the
        natural and probable consequence of the act or omission.”
        Control Techniques, Inc. v. Johnson,762 N.E.2d 104, 108 (Ind.
        2002). In addition, since enactment of Indiana’s Comparative
        Fault Act, the Indiana Supreme Court has expressed that that
        doctrine of “superseding cause has been essentially swallowed up
        by the general definition of proximate cause. The court wrote:

                 In capsule form, we conclude that the doctrines of
                 causation and foreseeability impose the same
                 limitations on liability as the “superseding cause”
                 doctrine. Causation limits a negligent actor’s liability
                 to foreseeable consequences. A superseding cause is,
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 13 of 34
                 by definition, one that is not reasonably foreseeable.
                 As a result, the doctrine in today’s world adds
                 nothing to the requirement of foreseeability that is
                 not already inherent in the requirement of causation.

        Control Techniques, Inc. v. Johnson,762 N.E.2d 104, 108 (Ind.
        2002). More specifically, as to superseding cause, the Indiana
        Supreme Court has indicated that the inquiry turns on whether
        the “injury” or “harm” could have been reasonably foreseen by
        the original negligent actor.

                 A subsequent act is “superseding” when the harm
                 resulting from the original negligent act “could not
                 have reasonably been foreseen by the original
                 negligent actor.” Vernon v. Kroger Co., 712 N.E.2d
                 976, 981 (Ind. 1999) (quoting Hooks SuperX, Inc. v.
                 McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994)).

        See Control Techniques, 762 N.E.2d [at] 107. . . .

        F. The verdict was against the weight of the evidence in that the
        evidence showed it was reasonably foreseeable someone would
        be shocked because Gary Pfafman failed to properly ground the
        Feed Barn. Pfafman knew and acknowledged that Diehm
        intended to use the taped pigtail Pfafman left to connect a deicer
        for use in the waterer. The reasonably foreseeable “harm
        resulting from the original negligent act” remained the same.
        That was of injury due to an electric shock because of improper
        grounding. Roger Diehm’s conduct and the claimed defect with the
        Farm Innovator’s deicer were not a superseding cause(s), as defined by
        Indiana case law. They were acts to be considered by the jury with
        respect to the issue of comparative fault.

        G. The verdict was against the weight of the evidence in that the
        evidence showed Gary Pfafman’s conduct was the essential cause
        for Kole Craig to have suffered the electric shock and his injuries.
        It was only because Gary Pfafman failed to install a bonding jumper in
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 14 of 34
        the panel box and failed to install GFCI protection on the circuit going to
        the waterer that Kole Craig was shocked. Had Gary Pfafman done
        either of these things, as were required by the NEC, and
        regardless of the claimed negligent conduct of Diehm and Farm
        Innovators, Kole Craig would not have been shocked.

        H. The verdict was against the weight of the evidence in that the
        evidence did not show it was justifiable or excusable for Mr.
        Pfafman not to comply with the NEC in performing his work at
        the Feed Barn. There was no expert testimony offered by the
        defense or by the plaintiff indicating that Mr. Pfafman should be
        excused under the circumstances from complying with the NEC.
        Neither was there any lay testimony offered for justification or
        excuse for Mr. Pfafman not to comply with the NEC.

        I. The verdict was against the weight of the evidence regarding
        the circumstances under which Mr. Pfafman performed his work
        at the Feed Barn. Mr. Pfafman testified he performed his work at
        the Feed Barn as part of his P & S Electrical business. . . .

        J. The verdict was against the weight of the evidence as to the
        contention that Pfafman only installed the “lighting” in the Feed
        Barn. Gary Pfafman testified that he installed the panel box, all
        the junction boxes, the GFCI plugs on the west wall of the Feed
        Barn and did all the connecting work of the wires to those
        locations. He also installed the ground rod and its connections to
        the panel box, and he installed the “pigtail” which he left
        hanging on the support beam above the waterer. . . .

        K. The evidence favorable to the defense, discussed in Section II,
        above, is insufficient to support the jury’s verdict.

        L. The plaintiffs did not waive their right to a new trial by not
        moving for a directed verdict as to Pfafman and not objecting to
        Verdict Form A in light of the fact that Pfafman had raised
        comparative fault allegations as to Roger Diehm and Farm
        Innovators. Pfafman would have been unfairly prejudiced by an
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017       Page 15 of 34
               instruction to the jury that the court had found Pfafman at fault
               as a matter of law and by a verdict form indicating that the jury
               had to find fault as to Pfafman in light of the directed verdict.
               Moreover, even if it could be said that there was a waiver by
               plaintiffs, the court retains the authority to grant a new trial
               where the evidence does not support the verdict, as is the case
               here.

               THEREFORE, based upon the foregoing facts and authorities,
               the Court hereby, ORDERS, ADJUDGES AND DECREES
               that the Plaintiffs’ Motion to Correct Error and Motion for New
               Trial BE GRANTED.


       Appellant’s App. at 30-54 (some emphases original). This appeal ensued.


                                       Discussion and Decision
                                                     Overview

[12]   “In order to prevail on a claim of negligence the plaintiff must show: (1) duty

       owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall

       below the applicable standard of care; and (3) compensable injury proximately

       caused by defendant’s breach of duty.” King v. Ne. Sec., Inc., 790 N.E.2d 474,

       484 (Ind. 2003). Here, at trial, the parties agreed that Pfafman owed Craig a

       duty of care, and the only questions presented to the jury were: whether

       Pfafman breached his duty and, if so, whether his breach proximately caused

       Craig’s injuries; and whether any fault should be allocated to the named

       nonparties. The jury entered a general verdict in favor of Pfafman’s Estate,

       which means that the jury: found that Pfafman did not breach his duty of care;

       found that Pfafman’s breach did not proximately cause Craig’s injuries; or


       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 16 of 34
       allocated 100% fault to one or both of the nonparties. The crux of the issue on

       appeal is whether the jury’s verdict is clearly erroneous as contrary to or not

       supported by the evidence.


[13]   In granting Craig’s Estate’s motion for a new trial, the trial court concluded

       that, as a matter of law, Pfafman breached his duty of care to Craig and that

       that breach proximately caused Craig’s injuries. Indeed, the trial court found

       that the only reason Craig was injured was because of Pfafman’s breach of duty.

       Nevertheless, the trial court also stated that, under the Comparative Fault Act

       (“the Act”), the jury might allocate some fault to the nonparties,14 Diehm and

       Farm Innovators. Accordingly, rather than entering a directed verdict in favor

       of Craig’s Estate, the trial court ordered a new trial.


[14]   We hold that the trial court’s findings and conclusions are insufficient under

       Trial Rule 59(J). In particular, the trial court did not relate the evidence of the

       nonparties’ negligence to the issue of comparative fault under the Act, but

       erroneously concluded that Pfafman’s conduct was the sole cause of Craig’s

       injuries. And the trial court did not address the possibility that the jury

       allocated 100% fault to Diehm and/or Farm Innovators despite the lack of an

       intervening cause. Accordingly, we reverse.




       14
          A nonparty is “a person who caused or contributed to cause the alleged injury, death, or damage to
       property but who has not been joined in the action as a defendant.” Ind. Code § 34-6-2-88 (2016).

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                     Page 17 of 34
                                                 Trial Rule 59(J)

[15]   Our supreme court has explained our standard of review and the trial court’s

       obligations under Trial Rule 59 as follows:


               As a general matter, a decision to grant a new trial (often called
               “acting as the thirteenth juror”) is reviewed for an abuse of
               discretion, and the trial court’s decision is given a strong
               presumption of correctness. Weida v. Kegarise, 849 N.E.2d 1147
               (Ind. 2006); see also Lake Mortg. Co. v. Federal Nat’l Mortg. Ass’n, 262
               Ind. 601, 321 N.E.2d 556 (1975). The strong presumption of correctness
               only arises if the court’s decision is supported by the special findings required
               by Trial Rule 59(J). . . .

               Indiana Trial Rule 59(J) authorizes trial courts to grant new trials to
               correct an error in prior proceedings. In all cases where relief is
               granted, the court is required to “specify the general reasons” for
               granting relief. Setting aside a jury’s verdict and granting a new trial
               is not to be done lightly, thus Rule 59(J) requires that, when granting
               a new trial because the verdict does not accord with the evidence,
               judges must

                        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 the judgment
                        was not entered upon the evidence.

               Ind. Trial Rule 59(J).

               We have long held that strict compliance with the substantive and
               procedural requirements of Trial Rule 59(J) is of “paramount”
               importance. Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265
               Ind. 457, 464, 358 N.E.2d 974, 978 (1976). Specific findings are
       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017           Page 18 of 34
               necessary to temper the use of the “extraordinary and extreme”
               power to overturn a jury’s verdict by assuring that the decision is
               based on a complete analysis of the law and facts. Id. at 464-65, 358
               N.E.2d at 978. In Weida v. Kegarise, we explained that the most
               important reason for Rule 59(J)’s “arduous and time-consuming
               requirements,” Nissen, 265 Ind. at 464-65, 358 N.E.2d at 978, is “to
               assure the public that the justice system is safe not only from
               capricious or malicious juries, but also from usurpation by
               unrestrained judges.” Weida, 849 N.E.2d at 1153. In other words,
               when a “court overrides the jury in its special domain and
               substitutes its own verdict for theirs without a clear showing that the
               ends of justice required it, it is likely that they did not.” State v.
               White, 474 N.E.2d 995, 1000 (Ind. 1985). When a court grants a
               new trial without making the specific findings, the remedy on
               appeal is to reinstate the jury verdict. Weida, 849 N.E.2d 1147.

       Walker v. Pullen, 943 N.E.2d 349, 351-52 (Ind. 2011) (emphases added; footnote

       omitted).


[16]   Here, although the trial court at one point concluded that the evidence was

       “insufficient to support the jury’s verdict,” it is clear from its multiple

       pronouncements about weighing the evidence that the court was acting as a

       thirteenth juror and determined the jury’s decision to be against the weight of

       the evidence. See Santelli v. Rahmatullah, 993 N.E.2d 167, 175 (Ind. 2013). The

       trial court was thus bound under Trial Rule 59(J) to “relate the supporting and

       opposing evidence to each issue upon which a new trial is granted.” See id.


[17]   Pfafman’s Estate contends that the trial court’s findings and conclusions are

       insufficient under Trial Rule 59(J) because they are not based on “a complete

       analysis of the law and facts” and do not make “a clear showing that the ends

       of justice required” that the verdict be set aside. Appellant’s Br. at 20. We

       must agree.

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017    Page 19 of 34
[18]   The trial court’s findings and conclusions are insufficient for two reasons. First,

       the trial court did not relate the evidence of the nonparties’ negligence to the

       issue of comparative fault under the Act, but erroneously concluded that

       Pfafman’s conduct was the sole cause of Craig’s injuries. Specifically, the trial

       court concluded that “Roger Diehm’s conduct and the claimed defect with the

       Farm Innovator’s deicer were not a superseding cause(s), as defined by Indiana

       case law. They were acts to be considered by the jury with respect to the issue

       of comparative fault.” Appellant’s App. at 52. And the trial court also

       concluded that “[i]t was only because Gary Pfafman failed to install a bonding

       jumper in the panel box and failed to install GFCI protection on the circuit

       going to the waterer that Kole Craig was shocked.” Id. (emphasis added).

       These conclusions demonstrate that, not only did the trial court ignore the

       significant evidence of Diehm’s and Farm Innovator’s negligence, but it

       erroneously concluded that Pfafman’s conduct was the only but-for cause of

       Craig’s injuries. Thus, the trial court did not sufficiently relate the evidence of

       the nonparties’ negligent conduct to the issue of comparative fault under the

       Act.


[19]   Second, the trial court did not consider the possibility that the jury allocated

       100% fault to one or both of the nonparties despite the lack of an intervening

       cause.15 In Green v. Ford Motor Co., 942 N.E.2d 791, 794-96 (Ind. 2011), our




       15
          In its brief on appeal, Pfafman’s Estate points out that the trial court’s “use of ‘superseding’ cause [in its
       order] is inconsistent with the jury instruction to which [Craig’s Estate] did not object.” Appellant’s Br. at 26
       n.3. And we note that the jury instruction on intervening cause is contrary to law. Our supreme court has

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                         Page 20 of 34
supreme court explained the jury’s role in the allocation of fault under the Act

as follows:


         The appropriate considerations in determining comparative fault
         are primarily established by statute. The statutory definition of
         “fault” provides:

                  (a) “Fault,” for purposes of [the Indiana Product
                  Liability Act], means an act or omission that is
                  negligent, willful, wanton, reckless, or intentional
                  toward the person or property of others. The term
                  includes the following:

                            (1) Unreasonable failure to avoid an
                            injury or to mitigate damages.

                            (2) A finding under IC 34-20-2 . . . that a
                            person is subject to liability for physical
                            harm caused by a product,
                            notwithstanding the lack of negligence




held that a subsequent act is intervening or “superseding” when the harm resulting from the original
negligent act “could not have reasonably been foreseen by the original negligent actor.” Control Techniques,
762 N.E.2d at 107. Thus, here, the question on the issue of intervening cause should have been whether the
harm of electric shock was reasonably foreseeable to Pfafman when he failed to install either a bonding
jumper or GFI protection. But the jury was instructed in relevant part as follows:
         Sometimes an unrelated event breaks the connection between a defendant’s negligent action
         and the injury a plaintiff claims to have suffered. If this event was not reasonably foreseeable, it
         is called an “intervening cause.” When an intervening cause breaks the connection
         between a defendant’s negligent act and a plaintiff’s injury, a defendant’s negligent act is no
         longer a “responsible cause” of that plaintiff’s injury.
Tr. at 1115 (emphases added). In other words, the jury was not asked to determine whether, in 2004,
Pfafman could have reasonably foreseen the harm of electric shock, but whether he could have reasonably
foreseen subsequent events such as Diehm’s failure to install GFI protection, miswiring of a connector, and
leaving the heaters in the water troughs during the summer months. Craig’s Estate did not object to the
instruction, and it maintains on appeal that the instruction was “proper.” Appellee’s Br. at 46 n.8. Thus,
Craig’s Estate has waived for appellate review any challenge to the instruction.

Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                              Page 21 of 34
                          or willful, wanton, or reckless conduct
                          by the manufacturer or seller.

                 (b) “Fault,” for purposes of [the Indiana Comparative
                 Fault Act], includes any act or omission that is
                 negligent, willful, wanton, reckless, or intentional
                 toward the person or property of others. The term
                 also includes unreasonable assumption of risk not
                 constituting an enforceable express consent, incurred
                 risk, and unreasonable failure to avoid an injury or to
                 mitigate damages.

        Ind. Code § 34-6-2-45. In evaluating and allocating comparative
        fault, a jury may also consider “the relative degree of causation
        attributable among the responsible actors.” Paragon Family Restaurant
        v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Our statutory
        scheme thus allows a diverse array of factors to be considered in
        the allocation of comparative fault. “The process by which a jury
        analyzes the evidence, reconciles the views of its members, and reaches a
        unanimous decision is inherently subjective and is entitled to maximum
        deference. The Comparative Fault Act entrusts the allocation of fault to
        the sound judgment of the fact-finder.” Id.

        In both the Product Liability Act and the Comparative Fault Act,
        the legislature employed expansive language to describe the
        breadth of causative conduct that may be considered in
        determining and allocating fault. Both enactments require
        consideration of the fault of all persons “who caused or contributed to
        cause” the harm. Ind. Code §§ 34-20-8-1(a), 34-51-2-7(b)(1), 34-51-
        2-8(b)(1). We note that in prescribing the scope of such initial
        consideration, the legislature employed the phrase “caused or
        contributed to cause” instead of “proximately caused.” The
        Comparative Fault Act, however, further specifies that, in
        comparative fault actions, the “legal requirements of causal
        relation apply.” Ind. Code § 34-51-2-3. This requirement of
        proximate cause to establish liability was preserved in the


Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017     Page 22 of 34
        Indiana comparative fault scheme. Control Techniques[,] 762
        N.E.2d [at] 109[.]

        The legislature has thus directed that a broad range of potentially
        causative conduct initially may be considered by the fact-finder
        but that the jury may allocate comparative fault only to those
        actors whose fault was a proximate cause of the claimed injury.
        As explained in Control Techniques, “the jury is first required to
        decide whether an actor’s negligence was a proximate cause of
        the plaintiff’s injury.” Id. “Whether or not proximate cause
        exists is primarily a question of foreseeability.” Id. at 108. The
        fact-finder must evaluate whether the injury “is a natural and
        probable consequence, which in the light of the circumstances,
        should have been foreseen or anticipated.” Id. (quoting Bader v.
        Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000)). Fault may not be
        imposed “on an original negligent actor who sets into motion a
        chain of events if the ultimate injury was not reasonably
        foreseeable as the natural and probable consequence of the act or
        omission.” Id. The determination and allocation of each party’s
        proportionate fault “is a question for the trier of fact, except
        where there is no dispute in the evidence and the fact finder
        could come to only one conclusion.” Walters v. Dean, 497 N.E.2d
        247, 254 (Ind. Ct. App. 1986) (internal citations omitted).

                                                 ***

        The fact-finder may allocate as comparative fault only such fault
        that it finds to have been a proximate cause of the claimed
        injuries. And if the fault of more than one actor is found to have been a
        proximate cause of the claimed injuries, the fact-finder, in its allocation of
        comparative fault, may consider the relative degree of proximate
        causation attributable to each of the responsible actors.


(Emphases added). Put another way, “[u]nder comparative fault, the trier of

fact can allocate fault to multiple contributing factors based on their relative


Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017          Page 23 of 34
       factual causation, relative culpability, or some combination of both.” City of

       Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1244 (Ind. 2003).


[20]   The Act provides that the trial court shall instruct the jury on the allocation of

       fault as follows:

               The jury shall determine the percentage of fault of the claimant,
               of the defendant, and of any person who is a nonparty. . . . In
               assessing percentage of fault, the jury shall consider the fault of all
               persons who caused or contributed to cause the alleged injury, . . .
               regardless of whether the person was or could have been named
               as a party. The percentage of fault of parties to the action may total less
               than one hundred percent (100%) if the jury finds that fault contributing
               to cause the claimant’s loss has also come from a nonparty or nonparties.


       I.C. § 34-51-2-7(b)(1) (2016) (emphases added).


[21]   The first step in interpreting a statute is to determine whether the Legislature

       has spoken clearly and unambiguously on the point in question. City of Carmel

       v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). While the Act provides that a jury

       may allocate fault only “to those actors whose fault was a proximate cause of

       the claimed injury,” see Green, 942 N.E.2d at 795, the Act does not require that

       a jury allocate some fault to every actor who proximately caused the plaintiff’s

       injury. Rather, the Act permits the allocation of any percentage or no

       percentage of fault to a party or nonparty who caused or contributed to cause

       the injury.


[22]   Again, Indiana Code Section 34-51-2-7(b)(1) provides in relevant part that, in

       assessing the percentage of fault, the jury “shall consider the fault of all persons

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017       Page 24 of 34
       who caused or contributed to cause the alleged injury[.]” (Emphasis added).

       As our supreme court has held, “[i]t is just as important to recognize what the

       statute does not say as it is to recognize what it does say.” State v. Dugan, 793

       N.E.2d 1034, 1036 (Ind. 2003). The statute does not say that the jury shall

       allocate fault to all persons who caused or contributed to cause the alleged

       injury. Rather, the jury shall merely consider a person’s fault in making that

       determination. Moreover, and significantly, the statute expressly permits a jury

       to allocate less than 100% fault to a party. Indiana Code Section 34-51-2-

       7(b)(1) provides that the court “shall instruct the jury” that “[t]he percentage of

       fault of parties to the action may total less than one hundred percent (100%) if

       the jury finds that fault contributing to cause the claimant’s loss has also come

       from a nonparty or nonparties.” The legislature could have required that a

       minimum percentage of fault be allocated to a party under the statute, but it did

       not.


[23]   “Fault,” as defined in the Act, is not synonymous with “proximate cause.”

       Rather, it is after a determination of proximate cause that a determination of

       fault is made under the Act. And the Act “entrusts the allocation of fault to the

       sound judgment of the fact-finder,” id. at 795, based on “the relative degree of

       causation attributable among the responsible actors.” Bartolini, 799 N.E.2d at

       1056. Here, Pfafman identified two nonparties, Diehm and Farm Innovators,

       and the jury heard evidence that Craig would not have been injured but for




       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 25 of 34
Diehm’s conduct16 (namely, failing to install GFCI protection; miswiring the

connector; and leaving the deicers in the troughs all summer) and/or Farm

Innovators’ manufacture of a defective deicer. Accordingly, the trial court

instructed the jury in relevant part as follows:


         [Pfafman] has named Roger Diehm as a non-party. . . . Pfafman
         has also named Farm Innovators, Inc., as a non-party. . . . To
         decide if Kole Craig is entitled to recover damages from the
         Estate of Gary Pfafman, and, if so, the amount of those damages,
         [you must] apportion the fault of Gary Pfafman, Roger Diehm
         and Farm Innovators, Inc. on a percentage basis. Do this as
         follows: First, if Gary Pfafman is not at fault, return your verdict for
         the Estate of Gary Pfafman and against Kole Craig, and deliberate no
         further. . . .


Tr. at 1123 (emphasis added). Thus, the general verdict in favor of Pfafman’s

Estate indicates either, first, that the jury found that Pfafman was not negligent

or second, that, despite Pfafman’s negligence, the jury allocated 100% fault to

Diehm and/or Farm Innovators based upon the relative degree of causation

attributable to them. The trial court’s findings and conclusions do not

adequately address the second possibility, and for that reason, they are

insufficient under Trial Rule 59(J).




16
   The element of causation requires that the harm would not have occurred but for the defendant’s conduct.
Topp v. Leffers, 838 N.E.2d 1027, 1032 (Ind. Ct. App. 2005), trans. denied. The “but for” analysis presupposes
that, absent the tortious conduct, a plaintiff would have been spared suffering the claimed harm. Id.

Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                       Page 26 of 34
[24]   In sum, despite its length,17 the trial court’s order omits any meaningful analysis

       of the evidence, including testimony by Craig’s Estate’s own expert witnesses,

       that Diehm and Farm Innovators proximately caused Craig’s injuries. While

       the trial court’s findings include a list of some of that evidence regarding the

       nonparties’ negligence, the court did not explain in its conclusions why that

       evidence would not support a jury’s allocation of fault to one or both of the

       nonparties with none to Pfafman’s Estate. We hold that the trial court’s

       findings and conclusions are not based on a complete analysis of the law and

       facts, see T.R. 59(J), and the court did not make “a clear showing that the ends

       of justice required” a new trial. Walker, 943 N.E.2d at 352. When a court

       grants a new trial without making sufficiently specific findings, the remedy on

       appeal is to reinstate the jury verdict. Id. at 353. Because the trial court’s

       findings are insufficient here, we reinstate the jury’s verdict.


                                                       Conclusion

[25]   The trial court’s findings and conclusions in granting Craig’s Estate’s motion

       for a new trial are insufficient under Trial Rule 59(J). The trial court did not

       relate the evidence of the nonparties’ negligence to the issue of comparative

       fault under the Act, but erroneously concluded that Pfafman’s conduct was the

       sole cause of Craig’s injuries. And the trial court did not address the possibility




       17
          Craig’s Estate appears to suggest that the length of the trial court’s order, without more, shows that it
       satisfies Trial Rule 59(J). And Craig’s Estate argues that, if we hold that the court’s order is insufficient, we
       would place an “impossible burden” on trial courts. Appellee’s Br. at 40. Craig’s Estate’s contention on this
       issue is without merit.

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                          Page 27 of 34
       that the jury allocated 100% fault to Diehm and/or Farm Innovators despite the

       lack of an intervening cause. Given the evidence that there were several but-for

       causes of Craig’s injuries attributable to the nonparties, the jury was entitled to

       allocate 100% fault to one or both of the nonparties and 0% to Pfafman.

       Accordingly, we reverse the trial court’s order and reinstate the jury’s verdict in

       favor of Pfafman’s Estate.


[26]   Reversed.


       Vaidik, C.J., concurs in result with separate opinion.

       Baker, J., concurs.




       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 28 of 34
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       The Estate of Gary Pfafman,
       Appellant-Defendant,

               v.                                                Court of Appeals Case No.
                                                                 57A03-1603-CC-516
       Lori Lancaster, Individually, and
       as Guardian of the Estate of
       Kole Craig,
       Appellee-Plaintiff.




       Vaidik, Chief Judge, concurring in result.


[27]   The trial court erred in finding as a matter of law that Pfafman proximately

       caused Craig’s injuries. Therefore, I concur in the result and would reinstate

       the jury’s verdict. But, I respectfully disagree with the majority that a jury is

       allowed to find an actor proximately caused an injury, yet decline to allocate a

       percentage of fault to that actor.


[28]   Proximate cause is a question of foreseeability, a question that must be

       answered by the fact-finder—in this case, the jury not the court. “A negligent

       act is said to be the proximate cause of an injury ‘if the injury is a natural and

       probable consequence, which in the light of the circumstances, should have

       been foreseen or anticipated.’” Paragon Family Rest. v. Bartolini, 799 N.E.2d

       1048, 1054 (Ind. 2003) (quoting Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind.


       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017            Page 29 of 34
       2000)). “Proximate cause requires, at a minimum, that the harm would not

       have occurred but for the defendant’s conduct.” Bader, 732 N.E.2d at 1218.

       Even then, however, “liability may not be imposed on an original negligent

       actor who set into motion a chain of events if the ultimate injury was not

       reasonably foreseeable as the natural and probable consequences of the act or

       omission.” Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind. 2002).

       “A subsequent act is superseding when the harm resulting from the original

       negligent act could not have reasonably been foreseen by the original negligent

       actor.” Id. at 107. Whether the ultimate injury is reasonably foreseeable “such

       that liability may be imposed on the original [actor]” is a matter for the jury to

       consider in allocating fault. Id.


[29]   There was plenty of evidence for the jury to find that the acts of Diehm and

       Farm Innovators were superseding, cutting off Pfafman from liability. In

       particular: (1) Diehm did not install GFCI protection for the de-icers despite

       warnings from Pfafman and the instruction manual that accompanied the de-

       icers; (2) Diehm ignored the instruction manual and did not have an electrician

       install the de-icers; (3) Diehm miswired the de-icer that short circuited; (4)

       Diehm ignored the instruction manual and kept the de-icers plugged in during

       the summer months; and (5) the de-icer that short circuited had a

       manufacturing defect when it left Farm Innovators’ facility. Based on this

       evidence, the jury could find that these subsequent acts were superseding—that

       Pfafman’s actions did not proximately cause Craig’s injuries. Put differently,

       given these circumstances, the issue of proximate cause and foreseeability of


       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017   Page 30 of 34
       injury was the jury’s call. On this basis alone, I would reverse the trial court

       and reinstate the jury’s verdict.


[30]   I disagree with the majority when it says that even assuming there were no

       intervening causes to cut off Pfafman’s liability, the jury was entitled to allocate

       0% fault to Pfafman and 100% to the nonparties. See slip op. at 27-28. In other

       words, the majority concludes that even if the jury found that Pfafman was a

       proximate cause of Craig’s injury, it was permitted to allocate no fault to him.

       The majority reaches its conclusion based on our Supreme Court’s holding in

       Green. The Court said in Green that “the jury may allocate comparative fault

       only to those actors whose fault was a proximate cause of the claimed injury.”

       942 N.E.2d at 795 (emphases added). Thus, liability cannot be allocated to

       those who do not proximately cause an injury. This does not mean that after

       the jury has determined which actors have proximately caused the injury, it can

       then decide which of those responsible actors it wants to allocate fault.


[31]   Instead, Green stands for the proposition that a percentage of fault is allocated to

       all actors whose conduct proximately caused the injury.18 When multiple actors

       are alleged to have proximately caused the plaintiff’s injuries, the fact-finder

       must apply a two-step analysis to determine and allocate fault. This process is




       18
         I agree with the majority that in some cases determining fault under the Comparative Fault Act requires
       more than a proximate-cause inquiry. In particular, fault also includes “assumption of risk” by a plaintiff,
       “incurred risk” by a plaintiff, and a plaintiff’s “failure to avoid an injury or to mitigate damages” before the
       accident or initial injury. Ind. Code § 34-6-2-45; see Kocher v. Getz, 824 N.E.2d 671, 674 (Ind. 2005). Since
       none of these circumstances of fault occurred here and there is no issue of duty, breach of duty, or damages,
       fault is synonymous with proximate cause in this case.

       Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017                          Page 31 of 34
       outlined in Green: “And if the fault of more than one actor is found to have been

       a proximate cause of the claimed injuries, the fact-finder, in its allocation of

       comparative fault, may consider the relative degree of proximate causation

       attributable to each of the responsible actors.” Id. at 796 (emphasis added). In

       other words, the jury first has to determine what actors proximately caused an

       injury. Then step two requires the jury to allocate fault among all at-fault

       actors. The total percentage of fault must equal 100%. See Shand Mining, Inc. v.

       Clay Cty. Bd. of Comm’rs, 671 N.E.2d 477, 479 (Ind. Ct. App. 1996) (“Under the

       CFA, a jury is charged with allocating 100 percent of the fault among all

       culpable parties and non-parties.”), reh’g denied, trans. denied; see also Kmart Corp.

       v. Englebright, 719 N.E.2d 1249, 1260 (Ind. Ct. App. 1999) (“Under the Act, the

       total fault for an accident is apportioned between the plaintiff, defendant, and

       any other negligent person who is properly named as a nonparty.”), trans.

       denied. Thus, once an actor is determined in step one to be a proximate cause of

       an injury, the jury must allocate a percentage of fault—even nominally so—to

       that actor.


[32]   In reaching a contrary conclusion, the majority relies in part on the portion of

       Indiana Code section 34-51-2-7(b)(1) that permits a jury to allocate less than

       100% to the parties if it finds that “fault contributing to cause the claimant’s loss

       has also come from a nonparty or nonparties.” See slip op. at 25. But I fail to

       see how this provision supports the majority’s holding that a jury can find that a

       party’s conduct was a proximate cause of the injury yet decline to allocate any

       of the fault to that party. In other words, the fact that a jury can allocate less

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       than 100% of the fault to an at-fault party in no way leads to the conclusion that

       the jury can simply choose to allocate 0% of the fault to that party. Nothing in

       Section 34-51-2-7(b)(1) allows a jury to free a responsible party—one who was a

       proximate cause of an injury—from liability for damages because of the

       “degree” of his causation in relation to other responsible parties.


[33]   The majority’s approach raises a number of difficult questions. Could a verdict

       ever be against the weight of the evidence where, as here, the plaintiff bears no

       fault but there are multiple at-fault actors? And if it could, how much relative

       causation of an actor is necessary to absolve another responsible actor from

       liability? Can an actor who is a proximate cause of an injury be relieved of a

       fault allocation when he is 10% at fault? 20%? 80%? What percentage of fault

       is forgivable among responsible actors?


[34]   One of the main purposes of the Act is to hold a negligent actor accountable for

       his percentage of fault. “[T]he Act did not change the standard for imposing

       liability. . . . [L]iability is to be apportioned among persons whose fault caused

       or contributed to causing the loss in proportion to their percentages of ‘fault’ as

       found by the jury.” Control Techniques, 762 N.E.2d at 109 (citing Ind. Code §

       34-51-2-8; Cahoon v. Cummings, 734 N.E.2d 535, 541 (Ind. 2000)).


[35]   Accordingly, I disagree with the majority that if Pfafman was a proximate cause

       of the injury to Craig, he may be relieved of liability “based upon the relative

       degree of causation attributable” to Diehm and Farm Innovators. However, I




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do believe that the evidence supports the jury’s verdict. As such, I concur in

result only.




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