                                                        FILED
                                                   May 11 2017, 6:32 am

                                                        CLERK
                                                    Indiana Supreme Court
                                                       Court of Appeals
                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                             ATTORNEYS FOR APPELLEE
Robert F. Foos                                       Timothy S. Schafer
Neha M. Matta                                        Timothy S. Schafer II
Neal Bowling                                         Todd S. Schafer
Lewis Wagner, LLP                                    Schafer & Schafer, LLP
Indianapolis, Indiana                                Merrillville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Sandberg Trucking, Inc., and                               May 11, 2017
Kimiel Horn,                                               Court of Appeals Case No.
                                                           79A04-1605-CT-1069
Appellants-Defendants,
                                                           Appeal from the Tippecanoe Circuit
        v.                                                 Court
                                                           The Honorable Thomas H. Busch,
                                                           Judge
Brittany M. Johnson,
                                                           Trial Court Cause No.
Appellee-Plaintiff.                                        79C01-1503-CT-14




Bradford, Judge.




Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017                 Page 1 of 22
                                           Case Summary
[1]   Appellants-Defendants Sandberg Trucking, Inc., and Kimiel Horn (collectively,

      “Appellants”) appeal following a jury trial after which they were found thirty

      percent liable for the injuries of Appellee-Plaintiff Brittany Johnson and ordered

      to pay $2.13 million in damages. In April of 2008, a tractor-trailer owned by

      Sandberg and driven by Horn was southbound on I-65 when it struck a deer in

      the dark, leaving remains in the roadway. Horn stopped his truck

      approximately 250 feet down the roadway on the shoulder, exited his truck to

      examine the damage to it, but did not activate the truck’s emergency flashers or

      deploy deflective triangles behind his truck or near the deer remains.

      Approximately ninety seconds after parking on the shoulder, Horn activated his

      truck’s emergency flashers.


[2]   At around this time, a car driven by Johnson’s fiancé Joshua Horne approached

      from the north, and, while apparently attempting to avoid the deer remains,

      careened out of control into Horn’s parked truck, killing Joshua and seriously

      injuring Johnson. Johnson sued Appellants for negligence, and a jury found

      Appellants thirty percent liable for Johnson’s injures, awarding her $2.13

      million. Appellants argue that there is insufficient evidence to sustain the jury’s

      verdict, the trial court allowed the jury to base its verdict upon impermissible

      speculation, the trial court erred in concluding that Appellants had a duty to

      warn fellow motorists of a hazard in the road and that a federal regulation

      pertaining to stopped commercial vehicles applies in this case, and Johnson

      failed to produce evidence to support the jury award of damages. Johnson

      Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 2 of 22
      contests all of the above assertions. Because we find Appellants’ arguments to

      be without merit, we affirm.



                             Facts and Procedural History
[3]   On April 27, 2008, Horn was employed by Sandberg as a truck driver and was

      southbound in the dark on I-65 in Tippecanoe County at approximately 5:00

      a.m. When several deer ran out in front of Horn’s tractor-trailer, he

      unsuccessfully attempted to avoid them, striking one with the left front part of

      his truck, leaving the deer’s remains spread over both lanes of the highway.

      Horn pulled his truck completely onto the right shoulder, parking

      approximately 250 feet south of where he struck the deer.


[4]   Before activating his truck’s emergency flashers, Horn climbed out to assess the

      damage, which included a headlamp swinging from its connecting wire. After

      addressing the damaged headlamp, Horn climbed back into the cab, activated

      the emergency flashers, and began retrieving a box of reflective triangles.

      Approximately ninety seconds had elapsed since Horn parked the truck. As

      Horn unlocked the triangle case, he heard the squealing of tires, and, roughly

      ten seconds later, a car struck the back of his truck.


[5]   Meanwhile, Joshua had been approaching the scene driving southbound on I-

      65 in the right lane with Johnson, his fiancée, in the passenger seat.

      Presumably to avoid the remains of the deer, Joshua swerved hard to the left

      and overcorrected to the right, losing control of the vehicle, which slid into the


      Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 3 of 22
      rear of Horn’s truck; Joshua was severely injured and died at the scene.

      Johnson, then twenty-two years old, sustained severe and, in some cases,

      permanent injuries, including traumatic brain injury, a ruptured spleen,

      multiple skull fractures, multiple rib fractures, permanent facial nerve palsy and

      scarring on her forehead, deafness in her left ear, and memory loss.

      Additionally, Johnson has trouble learning new things, suffers post-concussive

      migraines, has gait instability and balance problems, and is at increased risk of

      developing dementia in the future.


[6]   On July 23, 2009, Johnson filed her complaint against Sandberg and the then-

      unknown driver of the truck, alleging negligence in failing to activate the truck’s

      emergency flashers or deploy reflective triangles or flares. In response to

      Appellants’ motion for summary judgment, Johnson alleged that Appellants

      had violated section 392.22 of the Federal Motor Carrier Safety Administration

      regulations (“Section 392.22”), which provides, in part, as follows:

              (a) Hazard warning signal flashers. Whenever a commercial
              motor vehicle is stopped upon the traveled portion of a highway or
              the shoulder of a highway for any cause other than necessary
              traffic stops, the driver of the stopped commercial motor vehicle
              shall immediately activate the vehicular hazard warning signal
              flashers and continue the flashing until the driver places the
              warning devices required by paragraph (b) of this section. The
              flashing signals shall be used during the time the warning devices
              are picked up for storage before movement of the commercial
              motor vehicle. The flashing lights may be used at other times
              while a commercial motor vehicle is stopped in addition to, but
              not in lieu of, the warning devices required by paragraph (b) of this
              section.

      Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017    Page 4 of 22
      49 C.F.R. § 392.22. Appellants countered that Section 392.22 was inapplicable,

      as Horn was not engaged in interstate commerce at the time of the accident.

      The trial court denied Appellants’ motion for summary judgment and its

      request for an order preventing Johnson from placing into evidence the

      obligations mentioned in Section 392.22.


[7]   On February 23, 24, and 26, 2016, jury trial was held on Johnson’s negligence

      claim. James Pinckney, a transportation consultant opined that Horn’s failure

      to follow Section 392.22’s requirement to immediately activate his truck’s

      emergency flashers was the cause of the second accident. Following the

      presentation of Johnson’s case, the trial court denied Appellants’ motion for

      directed verdict. On February 26, 2016, the jury returned a verdict in favor of

      Johnson, finding that she had $7.1 million in damages and that Appellants were

      thirty percent at fault,1 for a total money judgment of $2.13 million. On March

      28, 2016, Appellants filed a motion to correct error, in which they argued that

      Johnson failed to establish that any act or omission on Appellants’ part was the

      proximate cause of Johnson’s injuries and that the verdict was unsupported by

      sufficient evidence. On April 27, 2016, the trial court denied Appellants’

      motion to correct error.


[8]   Appellants argue that (1) the trial court erred in concluding that Horn had a

      duty to warn other motorists not only of his stopped truck but also of the deer




      1
          The jury found Joshua to have been seventy percent at fault for the accident.


      Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017             Page 5 of 22
       remains, (2) Johnson failed to prove that the alleged negligent actions of Horn

       were the proximate cause of her injuries, (3) the trial court erroneously allowed

       the jury to engage in impermissible speculation, (4) the trial court erroneously

       concluded that Section 392.22 established the correct standard for Horn’s

       behavior in this case, and (5) the jury’s damages award in favor of Johnson for

       $2.13 million was not supported by the evidence presented at trial.



                                  Discussion and Decision
[9]    “‘[T]o 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.’” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62

       N.E.3d 384, 386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484

       (Ind. 2003)). “Whether a defendant owes a duty of care to a plaintiff is a

       question of law for the court to decide.” N. Ind. Pub. Serv. Co. v. Sharp, 790

       N.E.2d 462, 466 (Ind. 2003).


                                              Standards of Review

[10]   Appellants appeal from the trial court’s denial of their motion to correct error.


               In general, we review a trial court’s ruling on a motion to correct
               error for an abuse of discretion. Hawkins v. Cannon, 826 N.E.2d
               658, 661 (Ind. Ct. App. 2005), trans. denied. However, to the
               extent the issues raised by the City are purely questions of law, our
               review is de novo. See Ind. BMV v. Charles, 919 N.E.2d 114, 116
               (Ind. Ct. App. 2009) (“Although rulings on motions to correct

       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 6 of 22
               error are usually reviewable under an abuse of discretion standard,
               we review a case de novo when the issue … is purely a question of
               law.”)[.]
       City of Indpls. v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied.

       In the present case, this standard of review is appropriately applied only to the

       questions of whether Appellants had a duty of care to Johnson and whether

       Section 392.22 applies in this case, which are questions of law for the court.


[11]   For the remainder of their claims, Appellants are essentially arguing that there

       was insufficient evidence to sustain the jury’s verdict. “The jury, as the trier of

       fact, must weigh the evidence, draw any reasonable inferences, resolve conflicts

       in the evidence, determine the credibility of witnesses and decide in whose

       favor the evidence preponderates.” Ferdinand Furniture Co. v. Anderson, 399

       N.E.2d 799, 805 (Ind. Ct. App. 1980).

               Consequently, our standard of review allows us to overturn a
               jury’s verdict only if there is no evidence on the elements of the
               plaintiff’s claim which will support the verdict. Farm Bureau Ins.
               Co. v. Crabtree (1984), Ind. App., 467 N.E.2d 1220, 1225, rehearing
               denied, transfer denied. On such challenges to the sufficiency of the
               evidence we view the record in a light most favorable to the
               verdict, do not reweigh evidence, and will not rejudge the
               credibility of witnesses.
       Planned Parenthood of Nw. Ind., Inc. v. Vines, 543 N.E.2d 654, 658 (Ind. Ct. App.

       1989), trans. denied.




       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017    Page 7 of 22
                                               I. Duty of Care
[12]   Appellants contend that the trial court erroneously concluded that Horn had a

       duty to warn of the entire hazard, including the deer remains on the roadway.

       Johnson argues that Appellants have framed this issue too narrowly and that

       the general duty of all motorists to use reasonable care to avoid endangering

       fellow motorists applies in all traffic cases, including this one.


                Whether a defendant has a duty to conform conduct to a certain
                standard for the benefit of the plaintiff is generally a question of
                law. The question of the breach of a duty is usually one for the
                trier of fact. However, if any reasonable jury would conclude that
                a specific standard of care was or was not breached, the question
                of breach becomes a question of law for the court.
       Cox v. Paul, 828 N.E.2d 907, 911-12 (Ind. 2005) (citations omitted).


[13]   In general, “[t]he law requires of every person that he shall exercise due care to

       avoid injury to others and to protect himself, and the vigilance required is

       always commensurate with the danger to be apprehended.”2 Lake Shore & Mich.

       S. Ry. Co. v. Brown, 41 Ind. App. 435, 437, 84 N.E. 25, 26 (1908). More

       particularly, “the duty owed by motorists to fellow motorists is well-

       established.” Romero v. Brady, 5 N.E.3d 1166, 1168 (Ind. Ct. App. 2014), trans.

       denied. “All operators of motor vehicles have a general duty to use ordinary




       2
         The version of this passage found in the www.westlaw.com database differs from the official version as found
       in the Indiana Appellate Court Reports by replacing “he” with “they” and “himself” with “themselves.”

       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017                           Page 8 of 22
       care to avoid injuries to other motorists.” Wilkerson v. Harvey, 814 N.E.2d 686,

       693 (Ind. Ct. App. 2004), trans. denied.


[14]   Appellants argue that the trial court incorrectly interpreted Shaw v. Stewart’s

       Transfer, 2010 WL 2943202 (D. Me. 2010), and the Restatement (Second) of

       Torts § 322 to find that a duty existed in this case. Appellants also go to great

       lengths to argue that Johnson’s own witnesses’ testimony supports the

       proposition that Horn had no duty to warn fellow motorists of the deer remains.

       We conclude that this is a too-narrow framing of the issue, i.e., arguing whether

       a general duty to fellow motorists exists given a particular set of unique facts.


[15]   As the Indiana Supreme Court has explained in the context of a school’s duty

       to its students,

               An approach that focuses on rearticulating that duty based upon a
               given set of facts is misplaced in our view because to do so
               presupposes that an issue which is thought to be settled must be
               revisited each time a party frames the duty issue a little differently.
               Rather, because a school’s duty to its students already has been
               established, the focus shifts to whether a given set of facts
               represents a breach of that duty.
       Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 974-75 (Ind.

       2001) (footnote omitted). Because of the existence of Horn’s duty to his fellow

       motorists (including Joshua and Johnson), the focus shifts to whether a given

       set of facts constitutes a breach of that duty. See, e.g., Romero, 5 N.E.3d at 1169

       (“Similarly, it is well-established that motorists have a duty to use due care to

       avoid collisions, and whether a motorist was following another motorist too

       closely goes to the issue of breach.”). The trial court did not err in concluding
       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017      Page 9 of 22
       that Appellants had a duty of care to Joshua and Johnson, and the question

       then becomes whether that duty was breached, to be determined by the jury.


                                        II. Proximate Cause
[16]   Appellants also contend that the jury did not have sufficient evidence on which

       to find that their actions or omissions proximately caused Johnson’s injuries.

       “The proximate cause of an injury is not merely the direct or close cause, rather

       it is the negligent act which resulted in an injury which was the act’s natural

       and probable consequence in light of the circumstances and should reasonably

       have been foreseen and anticipated.” City of Indpls. Hous. Auth. v. Pippin, 726

       N.E.2d 341, 346 (Ind. App. 2000).


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

       plaintiff’s injuries. See, e.g., J.B. Hunt Transp., Inc. v. Guardianship of Zak, 58

       N.E.3d 956, 972-73 (Ind. Ct. App. 2016), trans. denied. In this case, the jury

       found as much by assigning seventy percent of the fault to Joshua. To resolve

       this case as a matter of law, as Appellants request, this court must find that

       under no circumstances could any of the fault be properly assigned to

       Appellants. Put another way, “the issue of proximate cause becomes a question

       of law where only a single conclusion can be drawn from the facts.” Florio v.

       Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007).


[18]   We conclude that this is not one of those cases. Even though a short time

       elapsed between Horn striking the deer and Joshua and Johnson running into

       Horn’s truck, Horn did have time to do things differently, i.e., immediately

       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017       Page 10 of 22
       activate his truck’s emergency flashers, and the jury could have concluded that

       the second accident could have been avoided if he had. In other words, Horn

       had time to take different action, action that the jury was entitled to conclude

       might have alerted Joshua that there was trouble ahead and/or caused Joshua

       to slow down. In fact, Johnson’s expert James Pinckney opined that Horn’s

       failure to immediately activate his truck’s emergency flashers was the cause of

       the second accident. The jury was entitled to credit Pinckney’s testimony, and

       likely did.


[19]   As we have stated,

               Where, as here, the actor’s conduct has created a situation which
               without more is not dangerous to anyone but which may become
               dangerous if subsequently acted upon by a human being or force
               of nature, the reasonableness of the actor’s conduct must be
               evaluated, ultimately by weighing the likelihood and potential for
               harm against the utility of the actor’s conduct. Whether the risk
               involved in doing a particular act is apparent to an ordinarily
               prudent person is most appropriately left for a jury which can
               bring to bear its varied experience and common knowledge.
       Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1265 (Ind. Ct. App. 1989)

       (citations omitted). We conclude that the jury heard sufficient evidence to

       sustain its finding that Appellants’ acts or omissions were a proximate cause of

       Johnson’s injuries.


                               III. Impermissible Speculation
[20]   In what seems to be essentially a slight variation of the previous two arguments,

       Appellants contend that the trial court erred in allowing the jury to engage in

       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 11 of 22
       what they characterize as impermissible speculation in reaching its verdict.

       This is little more than a restated claim that the jury’s verdict was not sustained

       by sufficient evidence. The gravamen of this argument is that the jury never

       heard any evidence from Joshua (who is dead) or Johnson (who sustained head

       injuries and remembers nothing about the accident) that Joshua would have

       slowed, shifted to the left lane, or done anything else differently had Horn

       activated his flashers earlier than he did.


[21]   To support this argument, Appellants cite to Zak, 58 N.E.3d at 956, a case with

       somewhat similar facts:


                                               The First Accident

               [3] On January 17, 2006, [Terry] Brown[, Jr.,] was a semi tractor-
               trailer driver employed by Hunt [Transport. Inc]. He was driving
               an empty trailer from Greencastle, Indiana, to Bolingbrook,
               Illinois. At some point, it began snowing. A few miles south of
               mile marker 205 on I-65 North, Brown felt his trailer move from
               side to side. He reduced his speed to between fifty and fifty-five
               miles per hour but did not believe that the weather conditions were
               bad enough that he had to pull over.
               [4] At approximately 6:00 p.m., Brown began driving on the
               overpass at mile marker 205. He felt a bump in the back, looked
               in his rear view mirror, and saw the trailer veering to the left side
               of the interstate. Brown attempted to counter-steer to prevent his
               trailer from jack-knifing, but his efforts failed. He blacked out
               briefly, and when he returned to consciousness, he saw that the
               semi had come to rest in the median between the north and
               southbound lanes of I-65. The vehicle was in a jackknife position,
               abutted the guardrail adjacent to the southbound lanes, and was
               fully contained within the median, approximately 200 to 500 feet


       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 12 of 22
        from the overpass. Although Brown never saw any black ice on
        the roadway, he assumed that it was the cause of the accident.
        [5] Brown, who had a noticeable bump on his head, reported the
        accident to his employer and the police. An ambulance and tow
        truck were called to the scene. Brown did not turn on the semi’s
        flashers or place reflective warning triangles on the roadway. At
        6:05 p.m., Indiana State Police Corporal Terence Weems
        responded to the accident. Corporal Weems remained at the scene
        for approximately thirty to forty-five minutes, during which time
        the ambulance arrived and transported Brown to a nearby
        hospital.
        [6] Corporal Weems did not believe that the location of the semi in
        the median was a safety hazard to motorists traveling on I-65
        North. The surrounding area was dark and unlit, and another
        officer testified that northbound drivers would likely not even have
        known that the tractor-trailer was in the median because they
        would not have been able to see it. The overpass is protected by
        three-foot concrete barriers on each side, and there is a berm in the
        median that meets the concrete wall. Together, these barriers
        would have prevented headlights from northbound vehicles from
        reflecting off of the semi. Because Corporal Weems believed the
        scene to be safe to passing motorists, he left before the tow truck
        arrived to go to the scene of another, unrelated accident.

                                      The Second Accident

        [7] At approximately 7:00 p.m., conditions on I-65 had worsened
        dramatically. Sleet, heavy snow, and ice became serious
        problems. Matthew Robinson was driving on I-65 North with his
        fiancée, Kristen Zak, as the sole passenger. Robinson lost control
        of his vehicle somewhere on the overpass at mile marker 205. His
        vehicle slid off of the roadway and spun out of control into the
        median, eventually striking the side of Brown’s jackknifed trailer.
        Zak, who was thirty-one years old and asleep at the time, received
        the brunt of the impact and was seriously injured. She sustained
        serious brain damage, leaving her unable to walk, care for herself,


Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 13 of 22
               or care for her six-year-old daughter. Neither Robinson nor Zak
               have any memory of the accident.
               [8] Indiana State Police Officer Martin Benner responded to the
               scene of the accident. Robinson twice told Officer Benner that he
               had been driving at the speed limit of seventy miles per hour when
               he lost control of the vehicle, though Robinson later told an EMT
               that he had been driving sixty miles per hour. Robinson has no
               memory of these interactions; indeed, there is a gap in his memory
               from before the accident to one week after the accident.
       Id. at 961-62.


[22]   Rejecting several challenges by the appellants in that case, we affirmed the

       jury’s verdict in favor of Zak’s guardian. Id. at 974. Appellants note that in

       Zak, Robinson (the driver) testified that if he had seen the flashers on the truck,

       he would have slowed down, moved to the right lane, and proceeded with

       caution. Id. at 964. Appellants argue that the absence of such evidence in this

       case means that any verdict in favor of Johnson was necessarily based on

       speculation. The presence of certain facts in Zak does not mean that a lack of

       any of those facts in other cases requires a different result. Each case stands

       alone, and the question is whether the evidence presented in this case—and

       reasonable inferences arising therefrom—would allow the jury to reach the

       verdict it did. Here, we conclude that there was sufficient evidence to conclude

       that Joshua likely would have slowed down or taken other measures had the

       truck’s flashers been on, even in the absence of direct evidence to that effect.


[23]   Moreover, we will not adopt a rule that effectively eliminates the possibility of a

       verdict in favor of the plaintiff(s) in failure-to-warn cases if the relevant person

       does not testify that he or she would have done anything differently had he or
       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017    Page 14 of 22
       she been warned of the danger. Put bluntly, it will not be uncommon in such

       cases for that person to be dead. The jurors should be entitled to infer that

       things would have played out differently had there been a warning, despite the

       lack of testimony to that effect.


[24]   Appellants also argue that there is no reasonable inference that Joshua would

       have done anything differently had Section 392.22 been followed because that

       provision does not address bringing attention to hazards in the roadway, only

       stationary commercial vehicles. In other words, Appellants argue that the harm

       in this case was not within the risk that Section 392.22 was designed to avoid,

       which, they claim, is solely to prevent another motorist from colliding with the

       stationary truck. This seems to be a variation on Appellants’ argument that

       Johnson failed to prove proximate cause. That said, this is a too-narrow

       interpretation of Section 392.22. There are any number of reasons why a

       commercial vehicle might pull off and stop on a shoulder, including striking

       something in the roadway—something that, as in this case, might still pose a

       hazard. Arguably, a reasonable person might slow down and exercise caution

       whenever encountering a stopped commercial vehicle with flashers on, because

       that person likely has no idea why the vehicle is stopped. Indeed, Horn, Officer

       Kruger, Officer Cody and Pinckney all testified that the purpose of Section

       392.22 was to provide other motorists with warning so that they could slow

       down, move over, and proceed with caution.




       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 15 of 22
                                          IV. Section 392.22
[25]   Appellants also argue that Section 392.22, as a federal regulation, does not

       apply in this case because Horn was not engaged in interstate commerce. Even

       assuming, arguendo, that Horn was engaged exclusively in intrastate commerce,

       Indiana Code section 8-2.1-24-18(a) explicitly provides that “49 CFR Parts 40,

       375, 380, 382 through 387, 390 through 393, and 395 through 398 are

       incorporated into Indiana law by reference, and … must be complied with by

       an interstate and intrastate motor carrier of persons or property throughout

       Indiana.” (Emphases added).


[26]   Appellants argue that this incorporation is too vague to be effective because it

       does not apply to individual drivers like Horn and other incorporated federal

       regulations render Section 392.22 inapplicable to intrastate transport. We find

       these arguments unpersuasive. Appellants note that Indiana Code section 8-

       2.1-24-18(a)applies, by its own terms, only to “motor carriers” and not

       individual drivers like Horn. Another one of the regulations incorporated by

       Indiana Code section 8-2.1-24-18(a), however, provides that “[t]he rules in

       subchapter B of this chapter are applicable to all employers, employees, and

       commercial motor vehicles that transport property or passengers in interstate

       commerce.” 49 CFR § 390.3(a)(1) (emphasis added). Appellants also note that

       49 CFR § 390.3(a)(1) applies to interstate commerce and seem to argue that the

       General Assembly went to the trouble of adopting federal regulations and

       specifically making them applicable to intrastate commerce while

       simultaneously adopting one that nullified the entire adoption. It is, of course,

       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 16 of 22
       implausible that this was the General Assembly’s intent when it enacted

       Indiana Code section 8-2.1-24-18. “We must construe statutes to prevent

       absurdity or a result the legislature, as a reasonable body, could not have

       intended.” Chavis v. Patton, 683 N.E.2d 253, 258 (Ind. Ct. App. 1997).

       Similarly, Appellants note that the General Assembly also incorporated 49 CFR

       § 383.5, which requires that “commercial motor vehicles” be “used in

       commerce” and defines “commerce” as


               (1) Any trade, traffic or transportation within the jurisdiction of
               the United States between a place in a State and a place outside of
               such State, including a place outside of the United States, and
               (2) Trade, traffic, and transportation in the United States that
               affects any trade, traffic, and transportation described in paragraph
               (1) of this definition.
       As with Appellants’ previous argument, we seriously doubt that the General

       Assembly actually intended to adopt a number of federal regulations and then

       nullify them in another portion of the same statute. Appellants have failed to

       establish that Section 392.22 does not apply in this case.


[27]   That said, having concluded that Section 392.22 applies to this case, it strikes us

       as prudent to include some observations regarding the scope and effect of

       Section 392.22. The parties argue at great length regarding the applicability of

       Section 392.22, with Johnson asserting that Horn’s failure to immediately

       activate his emergency flashers as required by Section 392.22 automatically

       leads to liability, and Appellants asserting that Section 392.22 is, essentially,

       irrelevant, as its purpose is to alert other motorists that the truck is stationary,


       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017     Page 17 of 22
       not to warn of other road hazards. In our view, both suggested interpretations

       are too narrow.


[28]   Neither party offers any authority for the proposition (and research has

       recovered none) that Section 392.22 limits, expands, or otherwise defines the

       general duty of care a motorist owes to fellow motorists in Indiana. Whatever

       Section 392.22’s effect in other contexts, we believe that it is best to view it as a

       useful guideline in the context of Indiana negligence law. Put another way,

       following Section 392.22 to the letter should not absolutely shield you from

       liability any more than failing to follow it should automatically subject you to

       it. In fact, this court has rejected such a rigid application, explaining that

       “[u]nder Indiana law, an unexcused or unjustified violation of a duty dictated by

       statute is negligence per se.” Indian Trucking v. Harber, 752 N.E.2d 168, 172

       (Ind. Ct. App. 2001) (emphasis added). In other words, violation of a statutory

       duty creates a presumption of negligence that may be rebutted.3




       3
          Indeed, it is not difficult to come up with hypotheticals that illustrate why rigid application of Section
       392.22 could lead to injustice. Suppose, for example, that Horn had struck a person instead of a deer and
       that it was a sunny day instead of a dark morning. Under those circumstances, if Horn had attended to the
       victim first instead of immediately activating his emergency flashers, it seems that requiring rigid adherence
       392.22 could lead to injustice. On the other hand, suppose that Horn had hit a difficult-to-see road hazard
       that disabled his truck. If Horn could have easily and safely removed the hazard from the roadway or alerted
       other motorists to its presence, relieving him of liability for a subsequent collision because he immediately
       engaged his emergency flashers—while doing nothing about the hazard—also seems unjust.


       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017                         Page 18 of 22
                                         V. Damages Award
[29]   Appellants argue that the jury’s damages award of $7.1 million is unsupported

       by evidence in the record.

               A person injured by the negligence of another is entitled to
               “reasonable compensation,” which is the “sum [that] would
               reasonably compensate the victim both for bodily injuries and for
               pain and suffering.” [Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind.
               Ct. App. 2001), trans. denied.] We apply a “strict standard” when
               we review an appellate claim that a jury’s damages award was
               excessive. Id. “A jury’s determination of damages is entitled to
               great deference when challenged on appeal.” Sears Roebuck and
               Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001).
                    Damages are particularly a jury determination. Appellate
                    courts will not substitute their idea of a proper damage
                    award for that of the jury. Instead, the court will look only
                    to the evidence and inferences therefrom which support
                    the jury’s verdict. We will not deem a verdict to be the
                    result of improper considerations unless it cannot be
                    explained on any other reasonable ground. Thus, if there
                    is any evidence in the record which supports the amount of
                    the award, even if it is variable or conflicting, the award
                    will not be disturbed.
               Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App.
               1994), reh’g denied, trans. denied). When considering a claim of an
               excessive jury verdict, we [do not] reweigh the evidence, and we
               “look only to the evidence and the reasonable inferences
               therefrom which uphold the verdict.” Lutheran Hosp. of Indiana,
               Inc. v. Blaser, 634 N.E.2d 864, 873 (Ind. Ct. App. 1994), reh’g
               denied. “To warrant reversal, the award ‘must appear to be so
               outrageous as to impress the Court at “first blush” with its
               enormity.’” Ritter, 745 N.E.2d at 844 (quoting Kimberlin v.
               DeLong, 637 N.E.2d 121, 129 (Ind. 1994) (quoting New York Cent.


       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017      Page 19 of 22
               R.R. Co. v. Johnson, 234 Ind. 457, 127 N.E.2d 603 (1955)), reh’g
               denied, cert. denied).
       Reed v. Bethel, 2 N.E.3d 98, 113-14 (Ind. Ct. App. 2014).


[30]   Appellants’ argument is that the jury’s award must be altered or vacated

       because (1) Johnson did not present any evidence of special, i.e., pecuniary

       damages at trial and (2) she has been able to maintain employment since the

       accident and receive raises and promotions. Appellants point to no authority

       that evidence of special damages is required in negligence cases, however, and

       it was for the jury to weigh evidence regarding Johnson’s employment history

       against the other evidence.


[31]   Among the evidence produced by Johnson about the extent of her injuries was

       testimony from Dr. Jonathan Liss, a neurologist, who testified that she suffered

       severe traumatic brain injury, “has trouble learning new things[,]” “will forever

       have inter grade amnesia[,]” and “will have to live with these significant

       deficient’s [sic] the rest of her life.” Tr. p. 332. Dr. Liss testified that Johnson

       was close to not surviving the accident; doctors “opened her up from kind of

       stem to stern” and removed her damaged spleen; she sustained multiple skull

       and rib fractures; she suffers from permanent facial nerve palsy; and she is deaf

       in her left ear. Tr. p. 335. Dr. Liss added that Johnson suffers from

       “tremendous” memory loss, tr. p. 350, suffers from post-concussive migraines,

       and is at increased risk for developing dementia in the future. Moreover,

       Johnson lost her fiancé in the accident that permanently injured her.




       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017    Page 20 of 22
[32]   The trial court instructed the jury, in part and without challenge from

       Appellants, as follows:


               Brittany Johnson does not have to present evidence of the dollar
               value of her pain, suffering, and mental anguish, disfigurement,
               deformity, and permanent injuries. These types of damages need
               not be proven to a mathematical certainty.
               She must prove the nature and extent of these types of damages,
               however. The dollar value, if any, of these damages is left to your
               good judgment.
       Tr. p. 724.


[33]   Considering the extent and permanent nature of Johnson’s injuries, the jury’s

       total award of $7.1 million is not so outrageous that it should impress this court

       with its enormity. Appellants have failed to establish that the jury’s damages

       award cannot be explained on any reasonable ground.



                                                Conclusion
[34]   We conclude that the trial court (1) did not err in finding that Horn had a duty

       of care to Joshua, Johnson, and his other fellow motorists; (2) did not allow the

       jury to engage in speculation; and (3) correctly concluded that Section 393.22

       applies to intrastate commerce. We further conclude that Johnson produced

       sufficient evidence to sustain findings that (1) Horn’s actions (or inactions) were

       the proximate cause of her injuries and (2) she sustained $2.13 million in

       damages.


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

       Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 21 of 22
Najam, J., and Riley, J., concur.




Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017   Page 22 of 22
