      MEMORANDUM DECISION
                                                                         Dec 29 2015, 8:25 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jason A. Scheele                                         Dean J. Arnold
      Andrew L. Palmison                                       Ken Nunn Law Office
      Fort Wayne, Indiana                                      Bloomington, Indiana
                                                               Bryan H. Babb
                                                               Bose McKinney & Evans, LLP
                                                               Indianapolis, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      OmniSource Corporation,                                  December 29, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               27A02-1407-CT-476
              v.                                               Appeal from the Grant Circuit Court
                                                               Trial Court Cause No.
      Linda K. Fuller and Greg Fuller,                         27C01-1203-CT-220
                                                               The Honorable Mark E. Spitzer,
      Appellees-Plaintiffs.
                                                               Judge




      Pyle, Judge.

[1]   OmniSource Corporation (“OmniSource”) appeals the denial of its motion for

      judgment on the evidence during the trial of Linda and Greg Fuller’s

      (collectively “the Fullers”) negligence claim. On appeal, OmniSource argues

      Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 1 of 8
      that the Fullers’ evidence supporting their claim was speculative and therefore

      insufficient to survive its motion for judgment on the evidence. Finding that the

      evidence was reasonably open to more than one interpretation, we conclude

      that the trial court did not err in denying the motion and sending the case to the

      jury.


[2]   We affirm.


                                                     Issue
                      Whether the trial court erred in denying OmniSource’s
                      motion for judgment on the evidence.

                                                     Facts
[3]   OmniSource is a processor of scrap and secondary metals and operates a metal

      scrapyard in Grant County, Indiana. Kenny Merritt (“Merritt”) is an

      OmniSource employee and works as a certified crane operator. Merritt was

      operating a crane at the scrapyard on March 29, 2011, and the Fullers brought

      metal to OmniSource that day, as they regularly gather scrap metal as a means

      of supporting themselves.


[4]   The Fullers parked their truck in the area of Merritt’s crane and began

      unloading their materials. Greg was in the bed of the truck passing materials to

      Linda, who then placed them in a pile behind the truck. Meanwhile, Merritt

      had finished unloading materials for another customer. When he swung the

      boom of his crane around, he saw the Fullers and the pile of materials they had

      unloaded from their truck.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 2 of 8
[5]   Merritt began moving items from the Fullers’ pile. Merritt picked up a bumper

      with the boom and began dragging it away from the pile. While Merritt was

      moving the bumper, it came into contact with Linda, and she fell to the ground.

      Greg yelled to Merritt that he had hit Linda, and Merritt exited the cab of the

      crane to check on her. Linda stated that her knee hurt but that she felt okay.

      Merritt asked her if she needed an ambulance, and she said no.


[6]   The next day, the pain in Linda’s knee worsened, and she and Greg went to the

      emergency room. Linda eventually sought treatment from Dr. Salil Rajmaira

      (“Dr. Rajmaira”), and he diagnosed her with a meniscus tear in her right knee.

      While tests revealed pre-existing degenerative changes in the knee, Dr.

      Rajmaira found that the tear was consistent with trauma to the knee.


[7]   On March 30, 2012, the Fullers, by counsel, filed a complaint alleging that

      Linda had suffered injury and that Greg had suffered loss of services,

      companionship, society, and consortium due to OmniSource’s negligence. The

      case was tried to a jury on June 9 and 10, 2014.


[8]   At trial, Merritt acknowledged that the Fullers were within ten feet of the boom

      of his crane and that part of the load he was moving came into contact with

      Linda. He also said that he should have had the Fullers move out of the area

      where the boom of his crane was operating. Mike McIntire (“McIntire”), the

      OmniSource plant manager, acknowledged during a deposition that if a

      customer were within twenty-five feet of the crane, the operator should set the

      magnet on the boom down “and motion for the person to remove themselves


      Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 3 of 8
      from that area.” (Tr. 106). Linda testified that there was a loud noise, the truck

      moved, and she fell to the ground. While she stated that she did not know what

      had happened, Greg testified that he saw the metal on the crane’s boom hit

      Linda’s arm, causing her to fall to the ground.


[9]   At the close of the Fullers’ case-in-chief, OmniSource moved for judgment on

      the evidence, arguing that the Fullers had not established what had caused

      Linda to fall and suffer an injury. After hearing arguments and considering

      cases cited by the parties, the trial court ruled on the motion as follows:

              We have the testimony of Mr. Merritt[,] who indicated that he
              did, in some form or fashion, come [into] contact with the
              Plaintiff. Now, he testified he didn’t see the Plaintiff fall[.]
              [H]owever, the Plaintiffs testified that . . . Mrs. Fuller did fall as a
              result of some contact that occurred. Certainly, there’s going to
              be a need for the jury to reconcile the testimony of the[]different
              witnesses. Somebody [has] either perceived something . . .
              differently or frankly somebody’s not telling the truth. However,
              given the evidence, the jury could conclude that there was a
              contact with Mrs. Fuller from the testimony of Mr. Merritt. [The
              jury] [c]ould conclude from the testimony of the Fullers that that
              contact caused Mrs. Fuller to fall. [The jury] [c]ould conclude
              from the testimony of Mrs. Fuller that that fall resulted in the
              injury to the[]knee [and resulted] in damages and so, using the
              standard that the Court is required to apply, which is[]there
              [being] some evidence[]where the jury could draw a conclusion
              that there was negligence here. Looking at the elements of the
              case, looking at the evidence here, notwithstanding the fact that it
              could certainly be and probably will be argued a different way by
              counsel and could ultimately, a different decision could be made
              by the jury. The question is whether they could draw those
              inferences in favor of Mrs. Fuller and Mr. Fuller and find that the
              Defendant was negligent and there were damages resulting from

      Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 4 of 8
               that negligence[.] The Court is finding that that could happen no
               matter how, sort of, no matter how we might argue as to whether
               the jury would have to sort of selectively stretch things from one
               testimony to the other in order to reach that conclusion. There
               certainly is evidence in the record which if the proper inferences
               are drawn could result in a finding of negligence. Not saying that
               it necessarily will [will happen], but could they do it, they
               certainly could. So Court finds this is a case that should go to the
               jury and so denies the motion for judgment on the evidence.


       (Tr. 237-238). OmniSource presented no other evidence, and the jury found in

       favor of Linda for her negligence claim, assigning eighty percent (80%) fault to

       OmniSource and twenty percent (20%) fault to the Fullers. The jury found in

       favor of OmniSource for Greg’s claims. OmniSource now appeals.


                                                   Decision
[10]   OmniSource appeals the denial of its motion for judgment on the evidence

       during the trial of the Fullers’ complaint.


[11]   On appeal, we apply the following standard of review to a trial court’s ruling on

       a motion for judgment on the evidence:

               It is axiomatic that in reviewing the trial court’s ruling on a
               motion for judgment of the evidence[,] the reviewing court must
               consider only the evidence and reasonable inferences most favorable to the
               nonmoving party. Judgment on the evidence in favor of the
               defendant is proper when there is an absence of evidence or
               reasonable inferences in favor of the plaintiff upon an issue in
               question. The evidence must support without conflict only one
               inference which is in favor of [the] defendant. If there is any
               probative evidence or reasonable inference to be drawn from the

       Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 5 of 8
               evidence or if there is evidence allowing reasonable people to
               differ as to the result, judgment on the evidence is improper.


       Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1051 (Ind. 2003)


       (emphasis in original) (internal citations omitted).


[12]   OmniSource argues that its motion for judgment on the evidence should have

       been granted because there was no proof that any act or omission on its part

       caused Linda to fall. A negligent act is said to be the proximate cause of an

       injury “if the injury is a natural and probable consequence, which in light of the

       circumstances, should have been foreseen or anticipated.” Id. at 1055 (quoting

       Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000)). At a minimum,

       proximate cause requires that the injury would not have occurred but for the

       defendant’s conduct. Id.


[13]   Here, the evidence most favorable to the Fullers was that Greg saw the metal

       on the crane’s boom hit Linda’s arm, and she fell. Merritt testified that a

       bumper he was dragging on the crane’s magnet hit Linda. He then exited the

       crane to see if she was okay. Finally, both Merritt and McIntire acknowledged

       that the magnet on the boom of the crane should have been set down until the

       Fullers cleared the area.


[14]   Nevertheless, OmniSource argues that it is unreasonable to infer from the

       above-mentioned evidence that any act on its part caused Linda to fall.

       OmniSource relies on the facts in our decision in Hayden v. Paragon Steakhouse,


       Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 6 of 8
       731 N.E.2d 456 (Ind. Ct. App. 2000) to essentially argue that Greg’s testimony

       was speculation as to what had occurred instead of evidence to be weighed by

       the jury. However, we distinguish the facts in Hayden from those before us

       now.


[15]   In Hayden, we recognized that an inference is not reasonable when it rests on no

       more than speculation or conjecture, and we affirmed the trial court’s grant of

       summary judgment because the designated evidence “clearly revealed that [the

       plaintiff] did not know what caused his fall.” Hayden, 731 N.E.2d at 458.

       Although the plaintiff’s complaint alleged that he fell on snow and ice, the

       plaintiff testified in his deposition that he did not see any snow where he fell

       and did not know whether there was ice in the area. Id. Plaintiff also testified

       to his “belief” that he slipped on ice and that he suspected he slipped on

       something. Id. There were no witnesses to the plaintiff’s fall, and he stated that

       he did not recall the pavement being slippery prior to his fall. We reasoned that

       “without any evidence on how or why [the plaintiff] fell, the [plaintiff] was

       relying on speculation and conjecture to explain the proximate cause of his

       injuries.” Id. at 458-59.


[16]   Here, Greg testified that metal connected to the crane’s boom struck Linda.

       OmniSource argues that Greg’s “testimony and vantage point make clear that

       he was not in a position to see whether any contact with the crane or any

       portion thereof is what caused [Linda] to fall.” (OmniSource’s Br. 19).

       However, considering the evidence most favorable to the Fullers, when

       OmniSource’s attorney directly confronted Greg with this point on cross-

       Court of Appeals of Indiana | Memorandum Decision 27A02-1407-CT-476 | December 29, 2015   Page 7 of 8
       examination, he again stated that he saw metal come into contact with his wife.

       (Tr. 193). Greg was adamant that his wife fell after being struck by the metal;

       there was no reservation in his testimony. We find that any dispute about

       Greg’s testimony is a question of weighing credibility, which is a matter

       reserved for the fact-finder and not appropriate for judgment on the evidence.

       Hartford Steam Boiler Inspection and Ins. Co. v. White, 775 N.E.2d 1128, 1143 (Ind.

       Ct. App. 2002), trans. denied.


[17]   Moreover, even if we were to treat Greg’s testimony as we treated the evidence

       in Hayden, there was other evidence presented, namely the testimony of Merritt

       and McIntire, that allowed for the reasonable inference that Linda would have

       never been struck by metal on the crane’s boom but for Merritt operating the

       crane in the area of the Fullers. See Bartolini, 799 N.E.2d at 1055. Thus, the

       evidence met the minimum for showing proximate cause. See, e.g., id.


[18]   The trial court properly recognized that reasonable jurors could come to

       different conclusions regarding the evidence. Indeed, the jury apportioned

       some fault to the Fullers and found for OmniSource on Greg’s claims.

       Accordingly, the trial court did not err in denying OmniSource’s motion for

       judgment on the evidence.


[19]   Affirmed.


       Crone, J., and Brown, J., concur.




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