      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                           Aug 17 2017, 6:50 am

      the defense of res judicata, collateral                                     CLERK
                                                                              Indiana Supreme Court
      estoppel, or the law of the case.                                          Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Richard J. LaSalvia                                      Daniel W. Glavin
      South Bend, Indiana                                      Schererville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Perpetual Wambugu, as Personal                           August 17, 2017
      Representative of the Estate of                          Court of Appeals Case No.
      Kelvin Mwangi, et al.,                                   71A03-1609-CT-2255
      Appellants-Plaintiffs,                                   Appeal from the St. Joseph
                                                               Superior Court
              v.                                               The Honorable Steven L.
                                                               Hostetler, Judge
      Palmer Funeral Homes, Inc.,                              Trial Court Cause No.
      Appellee-Defendant.                                      71D07-1307-CT-172




      Barnes, Judge.


                                             Case Summary
[1]   Perpetual Wambugu and John Mwangi appeal the jury verdict and subsequent

      judgment in favor of Palmer Funeral Homes, Inc. (“Palmer”) on Perpetual and


      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017          Page 1 of 14
      John’s claims for negligent and intentional infliction of emotional distress that

      resulted from viewing the remains of Kelvin Mwangi (Perpetual’s son and
                                  1
      John’s twin brother). We affirm.


                                                        Issues
[2]   The issues raised for review, as restated, are:

               I. whether the trial court properly allowed evidence of
               intervening cause; and


               II. whether the trial court properly instructed the jury on
               intervening cause.


                                                        Facts
[3]   Perpetual is Kelvin’s mother, and John is Kelvin’s twin brother. On July 18,

      2012, twenty-two-year-old Kelvin drowned in a swimming pool at an apartment

      complex located in Mishawaka. On July 19, 2012, an autopsy was conducted

      by the South Bend Medical Foundation (“SBMF”), which determined that

      Kelvin’s death was due to an accidental drowning.


[4]   On July 20, 2012, Perpetual hired Palmer to embalm Kelvin’s body, supply a

      casket, provide a funeral visitation at Palmer in South Bend, and arrange for

      Kelvin’s remains to be transported to Kenya where a second funeral service was




      1
       Daniel Kabui (Kelvin’s friend) and the Estate of Kelvin Mwangi were plaintiffs in the trial court case;
      however, they have not joined this appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017            Page 2 of 14
      to be held and the burial was to take place. After the autopsy was completed,

      Kelvin’s body was transported to Palmer. Problems arose, however, when the

      funeral director tried to embalm Kelvin. During the autopsy, Kelvin’s carotid

      arteries were cut in a fashion that made them unavailable for use for traditional

      embalming methods. This made it difficult to supply embalming fluid to

      Kelvin’s face and head. It was determined that a topical preservation gel would

      be applied to Kelvin’s face.


[5]   When Perpetual and John viewed Kelvin’s body at the funeral visitation at

      Palmer, they were unhappy with the way Kelvin looked because Kelvin’s face

      showed signs of discoloration due to dehydration that was caused by the gel.

      After seeing his brother’s body at the visitation, John chose not to view his

      brother’s body again.


[6]   Once the visitation at Palmer concluded, Kelvin’s body was placed inside of a

      metal case. The case was placed inside of a casket that was locked and then

      transported to Kenya. Palmer provided Perpetual with a key to the casket.


[7]   Perpetual and John traveled to Kenya and received Kelvin’s body from

      customs. Perpetual was required to use the key to open the casket to prove that

      the casket belonged to her. The casket then was transported to the Kenyatta

      University Funeral Home (“Kenyatta”) in Nairobi. Perpetual use the key to

      open the casket at Kenyatta, and a foul odor emanated. Perpetual viewed her

      son’s body at Kenyatta, and the body appeared to be decomposing.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 3 of 14
[8]    Kenyatta performed some work on Kelvin’s body, and the body then was

       transferred to another funeral home located in a town outside of Nairobi.

       When the body arrived at the second funeral home, Perpetual again used the

       key to open the casket. She saw that her son’s body was severely decomposed.

       Perpetual fainted and was removed from the funeral home.

                                               2
[9]    On July 17, 2013, the plaintiffs filed a complaint against Palmer, alleging

       negligent and intentional infliction of emotional distress. The plaintiffs alleged

       that Palmer engaged in extreme and outrageous conduct related to the

       embalming and preservation of Kelvin’s body and that, as a result of Palmer’s

       actions, Perpetual, John, and Daniel Kabui suffered emotional distress.


[10]   Palmer filed its answer and affirmative defenses to the plaintiffs’ complaint and

       named SBMF as a nonparty. After leave of the trial court, the plaintiffs filed an

       amended complaint adding SBMF as a party defendant. SBMF filed a motion

       for summary judgment, which the trial court granted as to all claims asserted by

       the plaintiffs.


[11]   On April 7, 2016, the plaintiffs filed a motion in limine, asking the trial court to

       exclude any evidence or mention by Palmer that SBMF was the proximate

       cause of the plaintiffs’ damages as a nonparty or for any other purposes. On

       June 28, 2016, the trial court granted the plaintiffs’ motion in limine as to




       2
        In this appeal, “plaintiffs” refers to Perpetual Wambugu, John Mwangi, the Estate of Kelvin Mwangi, and
       Daniel Kabui, the parties to the trial court case.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017       Page 4 of 14
       evidence of fault allocation as to SBMF, but denied the motion as to evidence

       of the actions of SBMF as to proximate cause.


[12]   On August 17, 2016, the trial court signed and filed the pretrial order. In the

       order, Palmer set forth in its contentions:


               At no time did Palmer Funeral Homes act intentionally or
               negligently to cause harm to [p]laintiffs. Palmer Funeral Homes
               contends it acted with reasonable care under very difficult
               circumstances created by the conduct of the South Bend Medical
               Foundation and denies it is liable to plaintiffs. The South Bend
               Medical Foundation’s failure to leave sufficient carotid arteries
               during its autopsy prevented Palmer from infusing Kelvin
               Mwangi’s remains conventionally and caused very difficult
               circumstances which Palmer used reasonable care to overcome.
               Palmer’s actions fell within the standard of care imposed on
               funeral directors or embalmers under the law. . . .


       Appellants’ App. Vol. III p. 29.


[13]   Prior to the start of the trial, which took place August 23-26, 2016, the plaintiffs

       orally renewed their written motion in limine to exclude evidence or any

       mention of proximate cause as to SBMF. The trial court again denied the

       motion. The plaintiffs also orally moved for a motion in limine as to any

       reference to, or evidence of, Kenyatta’s actions “being a cause or an intervening

       cause of plaintiffs’ injuries.” Tr. Vol. II p. 39. The basis of the oral motion was

       that Palmer failed to set out in its contentions in the final pretrial order any

       issues of Kenyatta’s actions being an intervening cause and that Palmer failed to




       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 5 of 14
       raise as an affirmative defense in its answer the issue of intervening cause as to

       Kenyatta. The trial court denied the oral motion in limine regarding Kenyatta.


[14]   Following the presentation of evidence, final jury instructions were provided.

       The following final jury instruction on intervening cause was provided to the

       jury over the plaintiffs’ objection:


               Sometimes an unrelated event breaks the connection between a
               defendant’s negligent action and the injury a plaintiff claims to
               have suffered. If this event was not reasonably foreseeable, it is
               called an ‘intervening cause.’


               When an intervening cause breaks the connection between a
               defendant’s negligent act and a plaintiff’s injury, a defendant’s
               negligent act is no longer a ‘responsible cause’ of that plaintiff’s
               injury.


       Tr. Vol. IV p. 223. The plaintiffs had objected to the instruction when it was

       proposed on the basis that the proposed jury instruction was “[n]ot supported

       by the evidence,” was “waived as to the previous motion in limine at the start

       of the trial,” was “[w]aived in the [pretrial] order,” and was “not . . . raised as

       an affirmative defense in the answer.” Id. at 154. The plaintiffs also argued

       that Kenyatta’s actions were “not a true intervening cause.” Id. at 155.


[15]   Following the trial, the jury found in favor of Palmer. Palmer did not seek

       damages, and the jury did not award any monies to Palmer. Judgment was

       entered on September 6, 2016. Perpetual and John now appeal.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 6 of 14
                                                   Analysis
                                          I. Admission of Evidence

[16]   Perpetual and John argue that the trial court erred in allowing at trial evidence

       of intervening cause. However, we first determine whether Perpetual and John

       waived their argument as to the admission of evidence of intervening cause by

       failing to object at trial. According to Palmer, Perpetual and John did not

       preserve the issue for this court’s review because they failed to object at trial to

       the admission of the evidence. We agree.


[17]   The theory Palmer presented at trial was that the Kenyatta employees’ act of

       showing Kelvin’s remains to Perpetual, without first taking steps to make the

       body presentable after having been shipped from Chicago to Nairobi, was

       “unforeseeable conduct” that constituted “an intervening cause, breaking the

       chain of causation resulting from Palmer’s purported negligence.” Appellee’s

       Br. p. 6. Palmer’s specific argument was:

               When embalmed remains are shipped, which is a common
               occurrence in the funeral business, it is universally known in the
               field that the receiving funeral home must take steps to ‘clean up’
               the remains before they are viewed by the decedent’s family . . .
               because, during shipment, the remains are jostled and are in an
               unpressurized cargo hold. As a result, there can be leakage, the
               development of mold, or an odor.


       Id. The Palmer funeral director and an expert hired by Palmer testified to this

       without objection. They further testified, without objection, that “there are

       commonly used techniques which could have been employed to cure the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 7 of 14
       problems . . . , and if these commonly used techniques had been employed, the

       remains would not have been in the state which caused Perpetual the emotional

       distress she claimed as a result of seeing them.” Id.


[18]   According to Perpetual and John, the issue of intervening cause was preserved

       for this court’s review because they argued at trial that a motion in limine

       should be granted and the evidence excluded. In support of their argument,

       they cite Indiana Evidence Rule 103(b) which reads: “Once the court rules

       definitively on the record at trial a party need not renew an objection or offer of

       proof to preserve a claim of error for appeal.”


[19]   Because a motion in limine is not a final ruling on the admissibility of evidence,

       a ruling on the motion does not preserve the error for appeal. Watson v.

       State, 972 N.E.2d 378, 386 (Ind. Ct. App. 2012). In order to preserve an error

       for appellate review, a party must do more than challenge the ruling on

       a motion in limine. Hollowell v. State, 753 N.E.2d 612, 615 (Ind. 2001). Absent

       either a ruling admitting evidence accompanied by a timely objection or a

       ruling excluding evidence accompanied by a proper offer of proof, there is no

       basis for a claim of error. Id.; see Ind. Evidence Rule 103(a) (“[a] party may

       claim error in a ruling to admit evidence only if the error affects a substantial

       right of the party and: (1) . . . a party, on the record: (A) timely objects . . .; and

       (B) states the specific ground, unless it was apparent from the context”).


[20]   The record demonstrates that, prior to the start of the trial, Perpetual and John

       made oral motions in limine to exclude evidence as to SBMF and Kenyatta


       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 8 of 14
       being intervening causes of Perpetual and John’s emotional distress. The trial

       court denied the motions. At trial, when Palmer introduced evidence of
                                                                              3
       intervening cause, Perpetual and John did not object. We, therefore, must

       conclude that Perpetual and John have not preserved the issue of admissibility

       of intervening cause evidence for our review.


[21]   Waiver notwithstanding, even if Perpetual and John had properly preserved

       their challenge to the admission of the intervening cause evidence, we find that

       the trial court properly admitted the evidence of intervening cause and properly

       instructed the jury thereon. The admission and exclusion of evidence falls

       within the sound discretion of the trial court, and we review

       the admission of evidence only for an abuse of discretion. Reed v. Bethel, 2

       N.E.3d 98, 107 (Ind. Ct. App. 2014). An abuse of discretion occurs when the

       trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Id. We will not reverse the trial court’s admission of

       evidence absent a showing of prejudice. Id.


[22]   Perpetual and John argue that the trial court abused its discretion when it

       allowed evidence of intervening cause because intervening cause was an

       affirmative defense that Palmer waived by failing to plead it as a defense.




       3
         During Palmer’s direct examination of its funeral director, Perpetual and John objected when Palmer’s
       counsel asked the funeral director, “Given your years of service and your experience and your training,
       would you have expected the staff at the Kenyatta Mortuary to open Kelvin’s casket in front of Perpetual
       Wambugu?” Appellee’s Br. p. 8. Perpetual and John initially objected on grounds there was “[n]o
       foundation as to what she’s aware of, what’s permitted or what is the standard in Kenya.” Id. However, the
       objection was withdrawn.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017         Page 9 of 14
       According to Perpetual and John, Palmer “did not reserve the nonparty defense

       either by raising the issue when South Bend Medical Foundation was granted

       summary judgment or by naming Kenyatta as a nonparty for allocation of

       fault.” Appellants’ Br. p. 15. However, Perpetual and John confuse Palmer’s

       intervening cause argument with a nonparty defense.


[23]   Indiana Trial Rule 8(C) states that responsive pleadings shall set forth

       affirmatively all affirmative defenses. See Ind. Trial Rule 8(C) (listing as

       examples, “accord and satisfaction, arbitration and award, discharge in

       bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by

       fellow servant, laches, license, payment, release, res judicata, statute of frauds,

       statute of limitations, waiver, lack of jurisdiction over the subject-matter, lack of

       jurisdiction over the person, improper venue, insufficiency of process or service

       of process, the same action pending in another state court of this state, and any

       other matter constituting an avoidance, matter of abatement, or affirmative

       defense”). Failure to do so results in waiver. Molargik v. West Enterprises, Inc.,

       605 N.E.2d 1197, 1199 (Ind. Ct. App. 1993).


[24]   Indiana’s Comparative Fault Act, which allocates damages among the parties

       according to their respective negligence, provides that “[i]n an action based on

       fault, a defendant may assert as a defense that the damages of the claimant were

       caused in full or in part by a nonparty.” Ind. Code § 34-51-2-14. The burden of

       proof of a nonparty defense is upon the defendant, who must affirmatively

       plead the defense. I.C. § 34-51-2-15. The defendant also has the burden of

       identifying the nonparty to whom fault should be attributed. McDillon v. N.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 10 of 14
       Indiana Pub. Serv. Co., 812 N.E.2d 152, 156 (Ind. Ct. App. 2004), transfer granted,

       opinion vacated (Dec. 20, 2004), opinion aff’d in part, vacated in part on other

       grounds, 841 N.E.2d 1148 (Ind. 2006). If the nonparty is not identified, then

       the jury may not assign fault against the nonparty. Id.


[25]   Palmer did not assert a nonparty defense, did not identify SBMF or Kenyatta as

       nonparties to whom fault should be attributed, and did not ask the jury to

       allocate fault to Kenyatta in its verdict. Palmer did, however, present evidence

       of intervening cause to show that it was not the proximate cause of Perpetual

       and John’s emotional distress. Intervening cause is not one of the defenses

       listed in Rule 8(C). However, it was an integral part of the proximate cause

       analysis of Perpetual and John’s negligent and intentional infliction of
                                           4
       emotional distress claims. See, e.g., National Market Share, Inc. v. Sterling Nat.

       Bank, 392 F.3d 520, 526-27 (2004) (holding that intervening cause in underlying

       case was not an affirmative defense because intervening cause was integral part

       of proximate cause analysis in breach of contract/breach of duty of good faith

       and fair dealing action); cf. Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1163-64

       (Ind. Ct. App. 1988) (holding that genuine issues of material fact precluded

       grant of summary judgment on negligence claim and referring to “contributory




       4
         To prove negligent infliction of emotional distress, Perpetual and John were required to show that: (1)
       Palmer was negligent; (2) Perpetual and John were directly involved in or impacted by an incident related to
       Palmer’s negligence; (3) Perpetual and John suffered serious emotional distress of the type a reasonable
       person would expect to occur; and (4) Palmer’s negligence was a responsible cause of Perpetual and John’s
       emotional distress. Tr. Vol. IV p. 219. The elements of the tort of intentional infliction of emotional distress
       are that the defendant: (1) engages in extreme and outrageous conduct (2) which intentionally or recklessly
       (3) causes (4) severe emotional distress to another. Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017             Page 11 of 14
       negligence and intervening negligence” as affirmative defenses) (footnote

       omitted), trans. denied. The trial court did not abuse its discretion in allowing

       evidence of intervening cause.


                                             II. Jury Instructions

[26]   As for Perpetual and John’s contention that the trial court abused its discretion

       when it instructed the jury on intervening cause because the instruction is not

       supported by the evidence and “invited the jury to consider the fault of a

       nonparty,” we disagree. Appellants’ Br. p. 22. The purpose of a jury

       instruction is to inform the jury of the law applicable to the facts without

       misleading the jury and to enable it to comprehend the case clearly and arrive at

       a just, fair, and correct verdict. Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001).

       Instruction of the jury is left to the sound judgment of the trial court and will

       not be disturbed absent an abuse of discretion. Schmidt v. State, 816 N.E.2d 925,

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


[27]   In reviewing a trial court’s decision to give or to refuse tendered instructions,

       this court considers: (1) whether the instruction correctly states the law; (2)

       whether there was evidence in the record to support the giving of the

       instruction; and (3) whether the substance of the instruction is covered by other

       instructions which are given. Control Techniques, Inc. v. Johnson, 762 N.E.2d

       104, 109 (Ind. 2002). The trial court has discretion in instructing the jury, and

       we will reverse on the last two issues only when the instructions amount to an

       abuse of discretion. Estate of Dyer v. Doyle, 870 N.E.2d 573, 582 (Ind. Ct. App.

       2007), trans. denied. A party seeking a new trial on the basis of an improper jury
       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 12 of 14
       instruction must show a reasonable probability that its substantial rights have

       been adversely affected. Id.


[28]   The trial court provided the jury instruction on intervening cause which is

       drawn verbatim from Indiana Model Civil Jury Instructions 303 (2016 Ed.):


               Sometimes an unrelated event breaks the connection between a
               defendant’s negligent action and the injury a plaintiff claims to
               have suffered. If this event was not reasonably foreseeable, it is
               called an ‘intervening cause.’


               When an intervening cause breaks the connection between a
               defendant’s negligent act and a plaintiff’s injury, a defendant’s
               negligent act is no longer a ‘responsible cause’ of that plaintiff’s
               injury.


       Perpetual and John do not argue that the instruction is an incorrect statement of

       the law. There was evidence in the record to support the giving of an

       instruction on intervening cause. As noted above, Palmer did not assert a

       nonparty defense but, instead, argued intervening cause. The trial court did not

       abuse its discretion by giving the instruction on intervening cause.


                                                 Conclusion
[29]   Perpetual and John waived their argument as to the admission of evidence of

       intervening cause by failing to object at trial. Waiver notwithstanding, the trial

       court properly allowed Palmer to introduce evidence of intervening cause and

       properly instructed the jury on intervening cause. The judgment of the trial

       court is affirmed.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 13 of 14
[30]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CT-2255 | August 17, 2017   Page 14 of 14
