ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karl L. Mulvaney                                           Edward F. Harney, Jr.
Nana Quay Smith                                            Erin M. Radefeld
Dentons Bingham Greenebaum LLP                             Hume Smith Geddes Green &
Indianapolis, Indiana                                      Simmons, LLP
                                                           Indianapolis, Indiana
                                                                                                 FILED
James Ludlow                                                                               Aug 17 2020, 10:46 am

James F. Ludlow, Attorney at Law P.C.                                                            CLERK
                                                                                             Indiana Supreme Court
Indianapolis, Indiana                                                                           Court of Appeals
                                                                                                  and Tax Court




                                            IN THE
    COURT OF APPEALS OF INDIANA

Judy Vigus, as the                                         August 17, 2020
Administratrix of the Estate of                            Court of Appeals Case No.
Ruth C. Vigus and of the Estate                            19A-CT-1365
of Eugene Vigus,                                           Appeal from the Marion Superior
Appellant-Plaintiff,                                       Court
                                                           The Honorable Michael D. Keele,
        v.                                                 Special Judge
                                                           Trial Court Cause No.
Dinner Theater of Indiana, L.P.,                           49D07-1302-CT-6951
Appellee-Defendant.



Najam, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                    Page 1 of 25
                                        Statement of the Case
[1]   Judy Vigus, as administratrix of the Estates of Ruth C. Vigus and Eugene Vigus

      (“Vigus”), appeals the trial court’s judgment for Dinner Theater of Indiana,

      L.P. (“the Theater”) following a jury trial on Vigus’s complaint alleging

      negligence. Vigus raises two issues on appeal, which we restate as follows:


              1.       Whether the trial court erred when it revoked a pretrial
                       order and did not instruct the jury that the Theater had
                       made a judicial admission of a building code violation.


              2.       Whether the trial court abused its discretion when it
                       denied Vigus’s attempt to admit into evidence statements
                       the Theater’s owners had made after Ruth’s fall to seek a
                       variance for the step’s height rather than reduce that
                       height.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On August 30, 2012, Ruth and Eugene Vigus went to the Derby Dinner

      Playhouse in Clarksville. The Derby Dinner Playhouse offers customers a

      buffet dinner along with a live show. The Theater is the corporate owner of the

      Derby Dinner Playhouse, and the Theater is owned and operated by Rebecca

      Jo Saunders and Cynthia Knopp.


[4]   That evening, Ruth and Eugene were seated at a table on a riser. The step up

      to, or down from, the table was approximately ten inches. Ruth and Eugene

      successfully went up the step to initially sit at the table, and Ruth successfully

      Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020          Page 2 of 25
      got down from and back up the step in the course of visiting the buffet for

      herself and for Eugene. However, when they attempted to leave at the end of

      the show, Ruth fell off the step and broke her hip.


[5]   Thereafter, Ruth sued the Theater for negligence, and Eugene sued for loss of

      consortium. During the course of the proceedings, both Ruth and Eugene died,

      and Vigus took over the suit as administratrix of their estates. Meanwhile, the

      Theater moved for a preliminary determination as a matter of law that a

      building code violation in the height of the step was not negligence per se.

      Specifically, the Theater sought a motion in limine “[p]recluding a negligence

      per se jury instruction for any potential Building Code . . . violation.”

      Appellant’s App. Vol. 2 at 124. Noting that Vigus had “no objection,” the

      court granted the Theater’s request. Id.


[6]   In September of 2017, the trial court held a hearing on other pending motions

      (“2017 hearing”). At that hearing, counsel for the Theater engaged the court in

      the following colloquy:


              [Counsel for the Theater]: Our experts do not say that the step . . . as
              built, complies with any code . . . .

              As designed, it did. It was designed for nine inches. It was built.
              It’s about nine and three-quarters or ten inches . . . . So we’re not
              even in a situation where we’re saying it complies with the
              Building Code . . . .

              So we’re on the same page as to the existence of the Building Code
              violation as built and we agree on that, none of this other
              stuff . . . is relevant.

      Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                Page 3 of 25
        THE COURT: Because the Building Code is . . . seven and-a-
        half[,] is that right?

        [Counsel for the Theater]: Well, . . . [t]heir expert will say seven
        and-a-half for a step.

        THE COURT: Okay.

        [Counsel for the Theater]: Our expert says nine inches for a riser.

        THE COURT: Riser.

        [Counsel for the Theater]: Which is why step and riser [are]
        different. . . .

                                             ***

        . . . So . . . in any event, . . . it’s too tall as built. . . .

                                             ***

        And on this violation issue and the Building Code violation, we
        don’t disagree that, as built, it[’s] evidence of negligence. . . .

                                             ***

        I feel like I’m in the Twilight Zone with some of these things . . . .
        [Plaintiff’s counsel and I are] not communicating very well. I
        think I heard [plaintiff’s counsel] say that [the Theater says the
        ten-inch step] complies with the [local] Building Code, and I
        think I just said that that’s not the case. Our expert doesn’t say
        that because we can’t . . . . [The step] is ten inches. Evidence of
        negligence, certainly. We know that, but not [a] Building Code
        violation.

                                             ***


Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020            Page 4 of 25
              Plaintiff[s] say in their response, This evidence is fair to show the
              existence of [a] Building Code violation. Again, we don’t deny
              there’s a Building Code violation.


      Tr. Vol. 2 at 149-51, 157-58 (emphases added).


[7]   About one and one-half years later, on the day before the jury trial was to begin,

      Vigus moved to have the statements made by the Theater’s counsel at the 2017

      hearing declared to be a judicial admission that the step at issue was in violation

      of relevant building codes. In that motion, Vigus asked


              that the Court issue an Order that conclusively finds that the step
              which allegedly caused Plaintiff’s injury was 10” in height, that
              this step was in violation of Indiana Building Code, that this
              evidence is conclusive, that Defendant cannot contradict these
              facts at any point throughout the trial, and for all further relief
              which is just and proper.


      Appellant’s App. Vol. 9 at 61. In her motion, Vigus did not request a jury

      instruction on this issue. Within hours, the Theater filed a motion to strike

      denying that counsel for the Theater had “made such an admission under

      applicable Indiana law.” Appellant’s App. Vol. 9 at 108. On the same day, the

      trial court denied the Theater’s motion to strike and granted Vigus’s motion in

      part. The court found that “the step . . . was a violation of [the] applicable

      Indiana Building Code,” and it prohibited the Theater “from attempting to

      submit argument or evidence to contradict these conclusive facts.” Id. at 118.

      But in its order, the trial court struck the finding proposed by Vigus that the step

      “has been conclusively established as being 10” in height.” Id.


      Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020         Page 5 of 25
[8]   The next day, during voir dire, a prospective juror asked the Theater’s counsel,

      “Did you say . . . [the code] was indeed broken?” Tr. Vol. 3 at 104. The

      Theater’s counsel replied, “The code was broken. There will be evidence of a

      building code violation.” Id. (emphasis added). Then, immediately following voir

      dire, the court asked counsel for both sides how to proceed with the

      “stipulation” or the Theater’s “admission” on the building code violation. Id.

      at 132. The following discussion ensued:


              [Counsel for the Theater]: The admission . . . we will admit that
              there is a Building Code violation as to the step, as built, being
              higher than nine inches.

                                                   ***

              THE COURT: . . . Thank you. And that’s a stipulation?

              [Counsel for the Theater]: Correct.

              THE COURT: Thank you.

              [Counsel for the Theater]: Well, it’s a ruling on your part.

              THE COURT: I guess it is. That’s true. But I’m just, I guess,
              frankly surprised that it wasn’t by stipulation of the parties.

              [Counsel for the Theater]: I think it’s just because there’s—it’s a
              bit semantic in terms of an expert would come in and say, you
              know, [“]Most of you would not get cited for that type of
              infraction,[”] but I can’t say it’s lower than nine inches as built.

              THE COURT: Right. And that’s why I didn’t include—there
              was a proposed order saying about the height.


      Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020            Page 6 of 25
        [Counsel for the Theater]: Right.

        THE COURT: We don’t…

        [Counsel for the Theater]: That part we don’t dispute.

        THE COURT: We don’t. Okay.

        [Counsel for Vigus]: So the jury will be informed that this is a
        Building Code violation, that the step is . . .

        THE COURT: Right.

        [Counsel for Vigus]: The step in question is a Building Code
        violation?

        THE COURT: That the step, as built…

        [Counsel for the Theater]: Is higher than nine inches which is
        violative of the code.

        THE COURT: Which is violative of the Building Code.
        Correct. And I just presumed—forgive me for presuming this—
        that the parties, again, if not agreeing, then [Vigus] would mention,
        explain that.

        [Counsel for the Theater]: Absolutely.

        THE COURT: Right.

        [Counsel for the Theater]: And we will explain nine inches and
        how it’s as built.

        THE COURT: Absolutely.

        [Counsel for the Theater]: Being violative. But the question
        though then becomes provided—because I—the way I read the
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020             Page 7 of 25
              order was I can’t argue it’s not basically. So as long as I don’t say,
              [“]We didn’t violate [the] Building Code[”] . . .

              THE COURT: Right.

                                                   ***

              [Counsel for Vigus]: Your Honor, I wanted to make clear that
              we’re not stipulating that the step should have been nine inches.

              [Counsel for the Theater]: No. . . . Their expert is saying it’s
              seven and-a-half inches.

              THE COURT: Right. We’re going to hear from experts with
              respect to that issue. . . .


      Id. at 132-34 (emphases added).


[9]   Vigus’s counsel then proceeded with his opening argument and informed the

      jury that


              there is no dispute there is a building code violation with this
              particular step, that is[,] the judge will instruct you that that is taken
              as a given. That is something that—we don’t need to prove it.
              It’s—you’ll be instructed that there is a building code violation.


      Id. at 137 (emphases added). Thereafter, counsel for the Theater informed the

      jury in his opening argument that


              [y]ou will hear evidence that [the step] was constructed according
              to plans in 1974. . . .




      Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                  Page 8 of 25
               I will challenge Plaintiff’s expert, . . . who will come in and say
               that it’s seven inches[, t]hat’s what’s required. A step is required
               to be seven inches. Our expert will say differently. . . .

               What you will hear from our expert from that perspective is that
               there was some plywood put on top, the carpeting put on top,
               and that gave it the nominal distance past the nine inches.

               What you will not hear . . . is this idea that the judge is going to tell you
               that there was a building code violation. It’s not going to happen. It’s
               not going to be one of the instructions.


       Id. at 156-57 (emphasis added).


[10]   Vigus did not object to the Theater’s opening statement as inconsistent with the

       court’s pretrial order. Later, during her case-in-chief, Vigus’s expert, Lee

       Martin, testified that relevant building codes required the step to be seven and

       one-half inches, that the step at issue exceeded that, that that difference was

       contrary to the safety purposes underlying the code’s standard, and that the

       height of this step was the single most significant cause in Ruth’s fall. And

       Martin explicitly testified that “this is a Building Code violation” and added that it

       was also “a Fire Code violation.” Id. at 192 (emphasis added).


[11]   During its ensuing case-in-chief, the Theater called its own expert witness, Greg

       Wisniewski. He testified that the building’s construction plan called for a nine-

       inch riser, which was correct under the relevant code at that time, and that the

       building received a certificate of occupancy following its construction, which

       was evidence that the structure as built was “reasonably compliant

       with . . . what the code requires.” Tr. Vol. 6 at 3. He also testified that a nine-

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                     Page 9 of 25
       inch riser “complies with the current code,” which was likely “more stringent”

       than the code at the time of construction. Id. at 7-8. Regarding the riser from

       which Ruth fell, Wisniewski testified that it was in excess of nine inches by

       “some fraction,” i.e., seven-eighths of an inch, but it was not quite “ten inches”

       in height. Id. at 18. But he expressly acknowledged that the riser “exceeds the

       nine inches” that was called for in the construction plan. Id. According to

       Wisniewski, that difference was likely attributable to adding about one-half inch

       of plywood on top of the concrete and then adding about one-quarter-inch thick

       carpet to the plywood. Vigus did not object to Wisniewski’s testimony and,

       specifically, she did not object that any part of his testimony contradicted the

       trial court’s pretrial order on the Theater’s judicial admission.


[12]   After Wisniewski’s testimony, the Theater asked the court to reconsider its

       pretrial order granting Vigus’s motion for the judicial admission and to deny the

       Theater’s motion to strike. The court responded as follows:


               . . . After what I’ve heard from the experts, I don’t know if there’s
               a Building Code violation . . . and I won’t include an instruction that
               as built it’s a Building Code violation because I don’t know that.

                                                    ***

               . . . I think there’s a discrepancy. . . . I think you can argue
               respectively based on what your experts have testified to, about
               their research and their findings . . . .

               The only reason I entered [that pretrial order] was because . . .
               [counsel for the Theater] did, in fact, indicate that he believed
               there was a Building Code violation.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020         Page 10 of 25
                But, again, based on what I’ve heard from these experts, I don’t
                have a clue. I know what we do know and what the jury should
                understand is that these plans, as built, prepared by architects
                charged with that knowledge and responsibility and then getting
                the building authorities to review and approve, I mean, it was
                stamped, sealed[,] and then built . . . .

                . . . I’m not comfortable with a judicial admission that there was a
                Building Code violation because I’ve not heard that.


       Id. at 77-78 (emphases added). Vigus then stated that, “once that admission is

       made . . . , then that fact is taken as conclusively established . . . [e]ven if it’s

       wrong” and “contradictory evidence thereafter will not be considered . . . .” Id.

       at 79.


[13]   The court took the matter under advisement and, the next day, before it

       instructed the jury, returned to the topic of the Theater’s admission. The parties

       then engaged with the court as follows:


                [Counsel for the Theater]: . . . [T]here w[ere] no repercussions as
                we were always contending the height was . . . it was undisputed
                what it was. We all knew it was nine and three-quarters.

                THE COURT: Right.

                [Counsel for the Theater]: We contended nine. They contended
                seven. That was disputed.

                THE COURT: Right. . . . But let me ask this. What wasn’t
                disputed is that the nine and three-quarters . . . close to ten is not
                in compliance with the approved plans submitted?

                [Counsel for the Theater]: True. That’s true as built.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020             Page 11 of 25
        THE COURT: Exactly. . . . As built. Because the plans
        . . . called for nine inches?

        [Counsel for the Theater]: Right.

        THE COURT: So as constructed, not in compliance with
        approved building . . . plans.

        [Counsel for the Theater]: Agreed. . . . [A]nd then Mr.
        Wisniewski explained why that would be the case . . . .

        THE COURT: Well, right. We heard conflicting testimony
        from the experts. Yes[, g]entlemen?

        [Counsel for Vigus]: Your Honor . . . the issue is that once a
        judicial admission is made, can it be taken back? There is . . . no
        dispute . . . that the step, as built, was not compliant with the plans.

        THE COURT: Right. Everybody agrees with that. I agree with
        that. I can judicially admit that. I think the jury will understand
        that. They should understand that. As built . . . it doesn’t
        comply with the plans which called for nine inches.

        [Counsel for Vigus]: Now, the question is . . . that [counsel for
        the Theater], in that [September 2017] hearing, did say . . . “We
        do not dispute that there’s a Building Code violation.” I believe
        that was the quoted language. . . . So there is a judicial
        admission. . . . [Case law] says that once that judicial admission
        is made, then evidence to contradict that cannot be considered or
        admitted. I think the Defense has . . . tried to submit evidence
        that basically says, Well, you know, okay. So it is an inch. . . .
        [B]ut that doesn’t take away the fact . . . that[ it is] still not built
        in accordance with the plans. So it is a Building Code violation
        because it’s not built according to the plans.

                                             ***


Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                Page 12 of 25
        THE COURT: . . . [A] judicial admission is . . . a substitute for
        evidence at trial. We heard evidence and conflicting evidence
        from two experts with respect to that issue. I can’t find that it’s a
        Building Code violation. I can’t do that. So the motion to strike or
        vacate the order that was entered [the day before trial began] is granted.
        But, again, that doesn’t mean that there isn’t an
        admission . . . that, as built, . . . [the step] was not built in
        compliance with approved building plans . . . . And argue that
        and point that out because that’s, in fact, the case.

                                             ***

        [Counsel for Vigus]: . . . [B]oth parties have told the jury—
        [counsel for the Theater] said that—words to the effect . . . that
        there is a building code violation in his opening statement or Voir
        Dire. I said the same thing, . . . that[ t]he Court is going to tell
        you that there’s a building code violation based upon your
        current order . . . . So I’m trying to figure out . . . what’s the best
        way to not come across as a liar to the jury on that topic.

                                             ***

        [Counsel for the Theater]: . . . [H]e did say, The judge is going to
        instruct you. I think that was a misinterpretation of . . . how you were
        going to handle the actual situation.

                                             ***

        THE COURT: . . . I think the best way . . . is simply at this
        point emphasizing that . . . the structure, as built, does not
        comply with plans approved by all appropriate government
        entities at the time because that’s not in dispute . . . .

        [Counsel for Vigus]: Okay.

        THE COURT: And I do see that in the revised proposed
        finals—thank you. I didn’t see one but perhaps that was
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020             Page 13 of 25
               anticipating how I might rule on the motion. But I see that you
               didn’t include an instruction as it relates to the judicial admission of a
               building code violation but instead have included some other language
               that I do think based on the evidence that we’ve heard is appropriate.


       Tr. Vol. 7 at 33-41 (emphases added).


[14]   The court then adopted Vigus’s Proposed Final Instruction Number 11 and

       instructed the jury in relevant part as follows:


               At the time of Ruth Vigus’[s] injury, there were certain Indiana
               Building Codes . . . and industry practices that [the Theater] was
               subject to . . . relat[ing] to the safe construction and maintenance
               of the building. You are to consider the violation of any Indiana
               Building Code . . . or industry practice as evidence of
               negligence . . . .


       Id. at 108; see Appellant’s App. Vol. 9 at 159. Vigus proposed no other

       instructions with respect to the Theater’s alleged judicial admission. And Vigus

       did not move the court for leave to recall any witnesses or otherwise submit

       additional evidence relevant to the building code violation. The jury returned a

       verdict for the Theater, and the court entered judgment for the Theater

       accordingly. This appeal ensued.


                                       Discussion and Decision
                                       Issue One: Judicial Admission

[15]   Vigus first contends that the trial court erred when it revoked its pretrial order

       finding that the Theater had made a judicial admission on the question of a

       building code violation. It is well settled that a trial court may reconsider an

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                  Page 14 of 25
       order or ruling if the action remains in fieri, or pending resolution. Lewis v.

       Toliver (In re Estate of Lewis), 123 N.E.3d 670, 673 (Ind. 2019). We review such

       reconsiderations for an abuse of discretion. Id. An abuse of discretion occurs

       when the court’s decision either clearly contravenes the logic and effect of the

       facts and circumstances or misinterprets the law. River Ridge Dev. Auth. v.

       Outfront Media, LLC, 146 N.E.3d 906, 912 (Ind. 2020).


[16]   As this Court has explained,


               [a] judicial admission “is an admission in a current pleading or
               made during the course of trial; it is conclusive upon the party
               making it and relieves the opposing party of the duty to present
               evidence on that issue.” Weinberger v. Boyer, 956 N.E.2d 1095,
               1105 (Ind. Ct. App. 2011), trans. denied. “Statements contained
               in a party’s pleadings may be taken as true as against the party
               without further controversy or proof.” Lutz v. Erie Ins. Exch., 848
               N.E.2d 675, 678 (Ind. 2006). “Opposing parties prepare their
               case on the assumption that facts admitted by other parties
               require no proof. For this scheme to work properly, parties must
               be entitled to rely on trial courts to treat admissions in pleadings
               as binding on the party making the admission.” Id.


       Brazier v. Maple Lane Apts. I, LLC, 45 N.E.3d 442 (Ind. Ct. App. 2015), trans.

       denied. However, “[a] party must testify clearly and unequivocally to a fact

       peculiarly within his knowledge in order for it to be considered a judicial

       admission.” Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016). And

       this Court has held that where “‘there is ambiguity or doubt in a statement’”

       made by a party’s attorney, “‘it is presumed that the attorney did not intend to

       make an admission.’” Sans v. Monticello Ins. Co., 718 N.E.2d 814, 816 n.3 (Ind.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020       Page 15 of 25
       Ct. App. 1999) (quoting Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind. Ct.

       App. 1982)), trans. denied.


[17]   In her brief on appeal, Vigus maintains that the Theater’s counsel’s statements

       during the 2017 hearing and during and immediately following voir dire,

       “individually and collectively, constituted a judicial admission that the step in

       question did not comply with the applicable building code.” 1 Appellant’s Br. at

       46. Whether a party’s statement constitutes a judicial admission is a question of

       law, which we review de novo. See Stewart, 53 N.E.3d at 570. We decline to

       cherry pick a particular statement by counsel to the exclusion of other

       statements. When we consider, as we must, both the content and context of the

       statements by counsel, as a whole, we conclude that counsel’s statements did

       not amount to a clear and unequivocal statement of fact. See id. at 570. Thus,

       we cannot agree with Vigus’s assertion, made during her opening argument at

       trial, that “there is no dispute there is a building code violation.” Tr. Vol. 3 at

       137.




       1
          We note that the parties dispute whether a judicial admission can occur “at any point in a judicial
       proceeding” or may only occur in a pleading or during the course of a trial. We need not resolve that issue,
       but we observe that the statement in Stewart that a judicial admission can occur “at any point in a judicial
       proceeding” is mere dicta and unsupported by prior Indiana case law. 53 N.E.3d at 568. This statement was
       part of a general discussion clarifying case law, the essential distinction between judicial and evidentiary
       admissions, and the conclusive legal effect of judicial admissions. The statement had no bearing on and was
       irrelevant to the holding in Stewart. Further, we note that Vigus’s reliance on Stewart is misplaced because we
       held that the witness testimony at issue was not a judicial admission and that, “when determining whether a
       party has made a judicial admission, the party’s testimony must be considered as a whole and be clear and
       unequivocal.” Id. at 570.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                              Page 16 of 25
[18]   The transcripts of the 2017 hearing, subsequent conferences, and the trial show

       that the parties engaged in back-and-forth discussions with the trial court

       regarding the issue of a building code violation that were confusing, ambiguous,

       and inconclusive. As the Theater’s counsel put it during the 2017 hearing,


               I feel like I’m in the Twilight Zone with some of these things . . . .
               [Plaintiff’s counsel and I are] not communicating very well. I
               think I heard [plaintiff’s counsel] say that [the Theater says the
               ten-inch step] complies with the [local] Building Code, and I
               think I just said that that’s not the case. Our expert doesn’t say
               that because we can’t . . . . [The step] is ten inches. Evidence of
               negligence, certainly. We know that, but not [a] Building Code
               violation.


       Tr. Vol. 3 at 157 (emphases added). Then, just a few moments later, the

       Theater’s counsel said, “Again, we don’t deny there’s a building code violation.” Id.

       at 158 (emphasis added). In sum, at the 2017 hearing, the Theater conceded

       that the height of the riser was evidence of negligence but equivocated on the

       question of whether or not the riser was a building code violation.


[19]   Some twenty months later, during voir dire, the Theater’s counsel responded to

       a question from a prospective juror and said, “The code was broken. There will

       be evidence of a building code violation.” Id. at 104 (emphasis added). After voir

       dire, during a colloquy with the court, the parties attempted to get clarification

       on the judicial admission as follows:


               [Counsel for Vigus]: So the jury will be informed that this is a
               Building Code violation, that the step is . . .



       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020        Page 17 of 25
               THE COURT: Right.

               [Counsel for Vigus]: The step in question is a Building Code
               violation?

               THE COURT: That the step, as built…

               [Counsel for the Theater]: Is higher than nine inches which is
               violative of the code.


       Id. at 133 (emphases added). And in her opening argument, Vigus declared,

       “there is no dispute there is a building code violation,” an assertion that the

       Theater immediately disputed in its opening argument, without an objection

       from Vigus. Tr. Vol. 3 at 137.


[20]   The transcript reveals that the parties frequently talked past each other, and

       there was no clarity on the parameters of the judicial admission under

       discussion. The parties disagreed whether the Viguses’ table was located on a

       “step” or a “riser,” a fact material to the building code violation issue. And

       Theater’s counsel equivocated, saying that the height of the riser was only

       evidence of a building code violation, was a building code violation, and was not a

       building code violation. Given these and other ambiguities, we cannot say as a

       matter of law that the Theater’s counsel made a definitive, unequivocal judicial

       admission of a building code violation. See, e.g., Harr v. Hayes, 106 N.E.3d 515,

       527 (Ind. Ct. App. 2018) (holding party had not made binding judicial

       admission where statement, taken in context, contained an ambiguity).




       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020      Page 18 of 25
[21]   The trial court concluded that it was not “comfortable saying there’s a building

       code violation.” Tr. Vol. 6 at 78. Indeed, considering the Theater’s counsel’s

       statements “as a whole,” they were neither “clear” nor “unequivocal.” Stewart,

       53 N.E.3d at 570. Thus, we cannot say that the trial court erred, and we hold

       that the trial court did not abuse its discretion when it revoked its pretrial order

       finding that the Theater had made a judicial admission on the building code

       violation.


[22]   In any event, even if we were to assume that the Theater made a judicial

       admission, it did not affect the manner in which the case was tried or the

       question the parties asked the jury to decide. Both parties conducted the trial as

       though the jury would be instructed on the judicial admission, and it was not

       until the instruction conference that the court actually revoked its order. Thus,

       the prejudice, if any, would not have occurred until the instruction Vigus

       wanted was not given.


[23]   In other words, the ultimate question was whether the court would give a final

       instruction on the Theater’s admission that the riser was in violation of the

       building code. After both parties had rested, during the instruction conference,

       the court granted the Theater’s motion to reconsider its pretrial order finding a

       judicial admission and revoked the order that had been entered the day before

       the trial began. The court stated that “the best way” to address the building

       code issue would be to emphasize that “the structure, as built, does not comply

       with plans approved by all appropriate government entities at the time because

       that is not in dispute.” Tr. Vol. 7 at 40. Counsel for Vigus replied, “Okay.” Id.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020       Page 19 of 25
       The court then noted that, “perhaps [in] anticipating” how the court would rule

       on the Theater’s motion to reconsider the judicial admission order, Vigus had

       tendered the following instruction:


               At the time of Ruth Vigus’[s] injury, there were certain Indiana
               Building Codes . . . and industry practices that [the Theater] was
               subject to . . . relat[ing] to the safe construction and maintenance
               of the building. You are to consider the violation of any Indiana
               Building Code . . . or industry practice as evidence of
               negligence[.]


       Id. at 40-41; Appellant’s App. Vol. 9 at 159. The court expressly observed at the

       instruction conference that Vigus did not request or tender a final jury

       instruction on the Theater’s judicial admission. The court all but invited Vigus

       to tender such an instruction. She did not.


[24]   For the first time on appeal, Vigus contends that the trial court should have

       instructed the jury that the Theater had admitted that the step violated the

       applicable building code. Indiana Trial Rule 51(C) provides that, at the close of

       the evidence, each party may file written requests that the court instruct the jury

       on the law as set forth in the requests. And, as our Supreme Court has made

       clear, when, as here, the claimed error is the failure to give an instruction, as

       distinguished from the giving of an erroneous one, a tendered instruction is

       necessary to preserve error because, without the substance of an instruction

       upon which to rule, the trial court has not been given a reasonable opportunity

       to consider and implement the request. Scisney v. State, 701 N.E.2d 847, 848 n.3

       (Ind. 1998). In this procedural posture, a party’s “failure to . . . tender a

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020        Page 20 of 25
       relevant jury instruction” results in waiver. Bowman v. State, 51 N.E.3d 1174,

       1178-79 (Ind. 2016).


[25]   Here, again, the court and the parties discussed the judicial admission issue

       before the trial, during the trial, and during the instruction conference. As we

       have noted, the transcript shows that those discussions between the court and

       counsel, which occurred outside the presence of the jury, were confusing and

       equivocal. And, again, at no time did Vigus request a jury instruction on the

       Theater’s admission of a building code violation. As Scisney directs, Vigus was

       required to tender an instruction in order to give the trial court an opportunity

       during the trial to deny or implement the request and for Vigus to preserve the

       issue for appeal. 701 N.E.2d at 848 n.3. This was necessary even though Vigus

       may well have believed and anticipated that the court would refuse to give the

       instruction. 2 Instead, Vigus acquiesced and tendered a different instruction,

       which the trial court gave. Thus, we cannot consider whether the trial court

       erred when it did not instruct the jury on the Theater’s alleged judicial

       admission.


[26]   In sum, we hold that the trial court did not abuse its discretion when it revoked

       its pretrial order finding that the Theater had made a judicial admission on the

       building code violation. Even if the Theater had made a judicial admission, it




       2
         The day before the instruction conference, during the parties’ colloquy with the court regarding the
       Theater’s motion to reconsider the judicial admission order, the court stated, “I won’t include an instruction
       that as built [the step was] a Building Code violation because [I] don’t know that.” Tr. Vol. 6 at 77.
       Regardless, Vigus was required to tender the desired instruction in order to preserve the issue for our review.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                               Page 21 of 25
       was incumbent on Vigus to tender a jury instruction on the judicial admission.

       Vigus did not tender that instruction, and she has not preserved that issue for

       our review.


                         Issue Two: Post-Fall Evidence that the Theater
                     Sought a Variance Instead of Reducing the Riser’s Height

[27]   Vigus also asserts on appeal that the trial court abused its discretion when it did

       not admit into evidence communications between the Theater’s owners, after

       Ruth’s fall, that they would seek a variance in the riser’s height rather than

       reduce that height. We review the trial court’s decision to admit or not admit

       evidence for an abuse of the court’s discretion. Snow v. State, 77 N.E.3d 173,

       177 (Ind. 2017). “This discretion means that, in many cases, trial judges have

       options. They can admit or exclude evidence, and we won’t meddle with that

       decision on appeal.” Id.


[28]   Vigus’s argument on this issue is that the Theater’s owners “lied under oath”

       because, during trial, they testified that they would have taken remedial actions

       if they had known the riser’s height posed a danger, yet, following Ruth’s fall,

       they applied for a building variance rather than reduce the riser’s height.

       Appellant’s Br. at 51. Vigus asserts that that evidence was relevant

       impeachment evidence and, as such, the court erred when it denied the

       admission of that evidence.




       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020      Page 22 of 25
[29]   In a pretrial order, 3 the trial court prohibited the admission of those

       communications, stating that they did not reveal that the owners “knew the

       condition of the platform as-built did not comply with potentially applicable

       building codes” and thus were “not relevant.” Appellant’s App. Vol. 4 at 98.

       The court further stated that, under Indiana Evidence Rule 403, even if those

       communications had “some limited relevance . . . , the probative value of the

       evidence is substantially outweighed by the danger of confusing the issues at

       trial as well as misleading the jury” by asking the jury to focus on what was

       known by the owners “after the fall . . . when the relevant inquiry is what [they]

       knew at the time of [Ruth’s] fall.” Id.


[30]   The trial court did not abuse its discretion. The purported relevance of those

       communications aside, Indiana Evidence Rule 403 permits the trial court to

       exclude “relevant evidence if its probative value is substantially outweighed by

       a danger of one or more of the following: . . . confusing the issues[ or]

       misleading the jury . . . .” “[T]his balancing is committed to the trial court’s

       discretion.” Snow, 77 N.E.3d at 179.


[31]   The trial court here concluded that the relevance, if any, of the owners’

       communications to seek a variance after Ruth’s fall would be substantially

       outweighed by the danger of suggesting to the jury that the owners knew at the

       time of Ruth’s fall of the alleged danger posed by the riser. The court’s



       3
         Vigus sought to admit the evidence at trial, and the court denied the request for the same reasons as in the
       pretrial order. Vigus objected, and the court permitted her to make an offer of proof.

       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020                               Page 23 of 25
       balancing of those concerns was not error as a matter of law, and we will not

       usurp the trial court’s role of balancing those factors. See id. Accordingly,

       Vigus has not met her burden to show error on this issue.


                                                  Conclusion
[32]   We hold that the trial court did not abuse its discretion when it revoked its

       pretrial order on the judicial admission. Even assuming that the Theater had

       made a judicial admission that the riser was a building code violation, Vigus

       has not shown reversible error. In particular, prior to trial, the court asked

       Vigus to “explain” the building code violation to the jury. Tr. Vol. 3 at 133.

       Vigus obliged and, in her opening argument, told the jury that, “you’ll be

       instructed that there is a building code violation.” Id. at 137. But Vigus made

       no objection when the Theater told the jury in its opening argument that the

       court would not instruct the jury on the violation. Neither did Vigus object to

       any of the Theater’s evidence on the basis that it violated the court’s judicial

       admission order. In the end, the dispute on the judicial admission became “an

       instructional issue.” See Bowman, 51 N.E.3d at 1178. But at the instruction

       conference, Vigus did not argue she was entitled to such an instruction, and she

       did not tender an instruction on the judicial admission. See Scisney, 701 N.E.2d

       at 848. Thus, Vigus has not preserved for our review her contention on appeal

       that the trial court erred when it did not instruct the jury that the Theater had

       made a judicial admission of a building code violation.




       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020       Page 24 of 25
[33]   We also hold that the trial court did not abuse its discretion when it excluded

       evidence of communications between the Theater’s owners, after Ruth’s fall,

       that they would seek a variance in the riser’s height rather than reduce that

       height. And we affirm the judgment for the Theater.


[34]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020     Page 25 of 25
