MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Sep 16 2016, 8:17 am

regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Wanda E. Jones                                           Thomas S. Ehrhardt
Jones Law Offices                                        Tracey S. Wetzstein
Griffith, Indiana                                        Kopka Pinkus Dolin, PC
                                                         Crown Point, Indiana
Kurt A. Young
Nashville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Phillip David Long and                                   September 16, 2016
Kathy Long,                                              Court of Appeals Case No.
Appellants-Plaintiffs,                                   45A03-1512-CT-2334
                                                         Appeal from the Lake Superior
        v.                                               Court
                                                         The Honorable Calvin D.
Michael J. Lopez,                                        Hawkins, Judge
Appellee-Defendant                                       Trial Court Cause No.
                                                         45D02-1112-CT-137



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 1 of 10
[1]   Phillip Long was struck by Michael Lopez’s vehicle. Phillip sued Lopez for

      negligence, and Phillip’s wife, Kathy, sued for loss of consortium. At trial, the

      parties disputed what jury instructions should be given. Eventually, the jury

      returned a verdict in the Longs’ favor, and awarded Phillip $24,000 and Kathy

      nothing.


[2]   The Longs filed a motion to correct error and requested additur, arguing that

      improper jury instructions resulted in a lowered damages award. The trial court

      denied these motions, and the Longs now appeal. Finding that the damages

      award was within the bounds of the evidence presented, we affirm.


                                                     Facts
[3]   On the morning of October 7, 2009, fifty-four-year-old Phillip was taking a walk

      to a local park. He stopped at an intersection, waited for the walk sign to light

      up, and began walking after the sign lit up. Lopez struck Phillip with his truck

      while Phillip was in the crosswalk. The impact threw Phillip to the ground, and

      he lost consciousness. He woke up in an ambulance. By the time he arrived at

      the hospital, he later testified, “I was hurting. My head was splitting. I was

      nauseous. My arm was swollen up. My rib cage hurt. My back was

      screaming.” Suppl. Tr. p. 17.


[4]   Prior to the accident, Phillip had an extensive history of back problems. His

      first back surgery was in 1989. After a 2003 work injury, he underwent an

      unsuccessful spinal fusion surgery in 2004, which was corrected by another

      back surgery in 2005. Although the 2005 surgery did not eliminate his back

      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 2 of 10
      pain, it reduced the pain to a level that Phillip could manage with medication;

      after several years of recovery, he was able to do yardwork, housework, and

      take walks.


[5]   On August 23, 2011, the Longs sued Lopez for negligence, with Kathy making

      a claim for loss of consortium. A jury trial was held on September 22-24, 2015.

      Following the October 2009 accident, Phillip underwent treatment from several

      doctors and physical therapists, several of whom testified at the trial. Phillip

      testified that he still experienced constant pain in his back and neck. Following

      the accident, he received injections of various medications, underwent several

      more procedures, and went to a chiropractor. The doctors who testified at trial

      acknowledged the acute pain that Phillip experienced as a result of the accident.

      At least one of the doctors testified, however, that some of the pain Phillip was

      experiencing in his lower back would have occurred absent the 2009 accident,

      given Phillip’s preexisting condition. Another doctor testified that Phillip

      reached maximum medical improvement from the 2009 accident within two

      and one-half months, and that Phillip’s current experience of pain could not be

      attributed to the accident.


[6]   At the close of evidence, the Longs moved for judgment on the evidence

      pursuant to Indiana Trial Rule 50, seeking a judgment that Phillip “was not

      negligent in any manner in this case” and “as to liability.” Appellants’ App. p.

      33. The trial court granted both motions.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 3 of 10
[7]   The parties then discussed what final instructions should be given to the jury.

      The trial court noted, “you’ll see an instruction that says the defendant is the

      responsible party and then . . . instructs the jurors that . . . the only issue is

      liability—I mean, damages, if any.” Tr. p. 241. But the trial court then told the

      defense, “that does not bar you from, well, he wasn’t negligent, but he’s the

      responsible party from the Court’s perspective. So it gives each of you

      something for what that’s worth.” Id. After the parties tried to clarify what the

      trial court meant, it explained, “If I’ve equally pissed both of you all off, I’ve

      accomplished something.” Id. at 245. The defense then asked the trial court to

      give the jury a verdict-for-the-defense form in case the jury found that Lopez

      was not negligent, and the trial court agreed.


[8]   After discussing other issues, plaintiffs’ counsel returned to the issue of the

      negligence instruction: “I feel that it’s going to be confusing to the jury to be

      told that he is the responsible cause on one hand, and then on the other hand be

      told that they should look into the issue of negligence.” Id. at 256. The trial

      court responded, “I can reconcile them, but I don’t want to because that gets

      into the province of me, kind of, construing your argument, okay. After the

      trial is over, I’ll tell you.” Id.


[9]   In closing, defense counsel argued that Lopez had not been negligent and that

      the jury could enter that as a verdict. He then mentioned the doctor’s testimony

      regarding Phillip’s maximum medical improvement, and noted that “the total

      medical bills for that time period are $24,575.73. If you’re inclined to find that

      Mr. Long was, in fact, negligent, I believe the proven medical bills that would

      Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 4 of 10
       be due and owing to Mr. Long is that figure . . . .” Id. at 285. He also told

       them that if they were inclined to make an award regarding pain and suffering,

       “a reasonable verdict . . . which includes that would be probably between $50-

       to $75,000.” Id. at 289.


[10]   The trial court gave the jury instructions on the definition of negligence and a

       defense verdict form. It also instructed the jury on its previous finding: “The

       Court has determined that Defendant, Michael J. Lopez, was responsible for

       the pedestrian/motor vehicle collision involved in this case. The only issue for

       your determination is the nature and extent of the Plaintiffs’ injuries and

       damages, if any, proximately caused by the Defendant.” Appellant’s App. p.

       41. The jury found that Lopez was negligent, and it awarded Phillip $24,000

       and his wife nothing. The Longs filed a motion to correct error and requested

       additur. The trial court denied these motions, and the Longs now appeal.


                                    Discussion and Decision
[11]   The Longs challenge the trial court’s jury instructions. They also argue that the

       trial court erred by not granting their motion to correct error or their request for

       additur.


[12]   The manner of instructing a jury is left to the sound discretion of the trial court.

       Kimbrough v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016). Its ruling will

       not be reversed unless the instructional error is such that the charge to the jury

       misstates the law or otherwise misleads the jury. Id. Jury instructions must be

       considered as a whole and in reference to each other. Id. In reviewing a trial

       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 5 of 10
       court’s decision to give or refuse a tendered instruction, we consider (1) whether

       the instruction correctly states the law; (2) whether there is evidence in the

       record to support giving the instruction; and (3) whether the substance of the

       tendered instruction is covered by the other instructions that are given. Id.

       Where the verdict would not have differed had the jury been properly

       instructed, any error in the giving of instructions is harmless. Canfield v.

       Sandock, 563 N.E.2d 1279, 1282-83 (Ind. 1990). An erroneous instruction is

       grounds for reversal only where we conclude that, given the totality of the

       instructions, the opponent’s substantial rights were adversely affected. Lovings

       v. Cleary, 799 N.E.2d 76, 79 (Ind. Ct. App. 2003).


[13]   In addition, a trial court has broad discretion to correct error. Childress v.

       Buckler, 779 N.E.2d 546, 550 (Ind. Ct. App. 2002). We will reverse such a

       decision only where the trial court’s decision was against the logic and effect of

       the facts and circumstances before it, together with the inferences that can be

       drawn therefrom. Id.


[14]   Lopez argues that the negligence instructions and defense verdict form were

       appropriate because “[t]he trial court had not found liability as a matter of law,”

       and that therefore the instructions were not confusing or misleading. Appellee’s

       Br. p. 12. But this argument is belied by the jury instruction that informed the

       jury, “The only issue for your determination is the nature and extent of the

       Plaintiffs’ injuries and damages, if any, proximately caused by the Defendant.”

       Appellants’ App. p. 41. Moreover, the trial court granted the Longs’ Trial Rule

       50 motion for judgment on the evidence regarding Lopez’s liability. Trial Rule

       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 6 of 10
       50 instructs that, in addition to entering judgment on the issue, “the court shall

       withdraw such issues from the jury . . . .”


[15]   We find that the trial court erred by instructing the jury on an issue that,

       following the grant of the Longs’ Trial Rule 50 motion, the trial court was

       required to withdraw from the jury’s consideration. The instructions were also

       contradictory, simultaneously asking the jury to determine liability and

       informing it that it should only consider damages. The question becomes

       whether this error requires a reversal.


[16]   We have previously held that a trial court commits reversible error in

       instructing the jury on propositions of law not pertinent to the issues or

       applicable to the evidence. E.g., Power v. Brodie, 460 N.E.2d 1241, 1243 (Ind.

       Ct. App. 1986). In Power, the plaintiff was a passenger in a vehicle that ran into

       another car when the two cars both ran through stop signs. Id. at 1242. The

       trial court gave an instruction to the jury regarding the doctrine of incurred risk,

       and the jury found in favor of the defendant. Id. Because “[t]here was no

       evidence presented from which to infer that Power had actual knowledge and

       voluntarily incurred the risk of being struck by another vehicle that had also run

       the stop sign,” we reversed the jury’s decision and remanded for a new trial. Id.

       at 1243. A similar issue arose in Hinkley v. Montgomery Ward, Inc., 497 N.E.2d

       255 (Ind. Ct. App. 1986). In that case, a plaintiff sued a tire manufacturer after

       a tire allegedly blew out, which caused his truck to crash into a guardrail. Id. at

       256. The plaintiff sued under a products liability theory and a breach of

       warranty theory. Id. The trial court gave an instruction to the jury regarding

       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 7 of 10
       the type of operator’s license the plaintiff was legally required to obtain before

       driving his truck, and the jury eventually returned a verdict for the defendant.

       Id. We reversed and remanded for a new trial, noting that “unless a causal

       connection between the injuries and the failure to have a license is shown, the

       lack of a license is immaterial.” Id. at 257.


[17]   In both of these cases, however, the appellants were appealing from negative

       judgments. In Power, we reversed because the jury’s verdict in favor of the

       defendant could have been based on the impertinent instruction. The same was

       true in Hinkley.


[18]   The same cannot be said in this case; the jury returned a verdict in the Longs’

       favor. The jury’s verdict accords with the trial court’s ruling that found Lopez

       to be negligent. Clearly, the Longs suffered no harm in this aspect of the jury’s

       verdict.


[19]   Rather, the Longs contend that the improper instructions on negligence resulted

       in a damages calculation that was lower than it otherwise would have been. A

       jury is to be afforded a great latitude in making damage award determinations.

       Russell v. Neumann-Steadman, 759 N.E.2d 234, 237 (Ind. Ct. App. 2001). A

       verdict will be upheld if the award falls within the bounds of the evidence. Id.

       The trial court may only reverse a jury verdict when it is apparent from a review

       of the evidence that the amount of damages awarded by the jury is so small or

       so great as to clearly indicate that the jury was motivated by prejudice, passion,

       partiality, corruption or that it considered an improper element. Id.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 8 of 10
[20]   In some circumstances, a jury’s damages award may be inadequate as a matter

       of law. In Russell, the defendant admitted fault for an accident, but despite

       undisputed evidence of the plaintiff’s medical expenses, the jury awarded no

       damages. 759 N.E.2d at 238. We explained, “The proper remedy in a case

       such as this, where liability is clear through admission, and where the jury

       verdict was inadequate as a matter of law, is a new trial on the issue of

       damages.” Id. In Childress, we affirmed a trial court’s grant of a motion to

       correct error after the jury awarded damages of $1639.00 to a plaintiff who had

       incurred medical bills and lost wages of at least $4149.00. 779 N.E.2d at 551.


[21]   We find both of these cases to be easily distinguishable from the instant case.

       In Russell, the plaintiff received zero percent of her proven damages. In

       Childress, the plaintiff received less than forty percent of her proven damages.

       Here, in contrast, the Longs acknowledge that at least one expert witness

       testified that Phillip reached maximum medical improvement after two-and-a-

       half months, and that he had incurred $24,575.73 in medical bills up to that

       point. The jury awarded him $24,000.00, or roughly ninety-eight percent of his

       medical bills. We cannot say that this award was substantially inadequate, or

       that the trial court erred by denying the Longs’ motion to correct error and

       request for additur.


[22]   This case required the jury to determine the extent to which the October 2009

       accident aggravated Phillip’s longstanding degenerative back problems. The

       jury had to weigh the testimony of several expert witnesses along with Phillip’s

       testimony regarding his subjective pain levels before and after the accident. In

       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016   Page 9 of 10
       complicated factual scenarios like this, we rely heavily on juries to use their

       wisdom and judgment to decide what compensation is appropriate. In this

       case, the jury was not convinced that Phillip’s pain and suffering would not

       have occurred absent the new accident. Ultimately, the Longs’ argument that

       the extra jury instructions had a subtle psychological effect that influenced the

       jury to reduce its damages award is pure speculation and is therefore

       unavailing.


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


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016 Page 10 of 10
