 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                            Jan 24 2014, 9:17 am
 estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JEFFREY J. STESIAK                                 BRIAN M. KUBICKI
JEROME W. MCKEEVER                                 J. THOMAS VETNE
Pfeifer, Morgan & Stesiak                          Jones Obenchain, LLP
South Bend, Indiana                                South Bend, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERTA HIMES,                                     )
                                                   )
       Appellant/Plaintiff,                        )
                                                   )
               vs.                                 )       No. 71A05-1305-CT-210
                                                   )
BRUCE THOMPSON,                                    )
                                                   )
       Appellee/Defendant.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable Margot F. Reagan, Judge
                              Cause No. 71D04-1204-CT-79


                                        January 24, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION


VAIDIK, Chief Judge
                                      Case Summary

       Roberta Himes appeals the jury verdict awarding her $13,600 for damages incurred

as a result of Bruce Thompson’s SUV pushing another car into her car. She claims that the

trial court erred in denying her motion for judgment on the evidence and that the jury

verdict was against the weight of the evidence. Thompson cross-appeals, arguing that the

trial court erred in denying his motion for judgment on the evidence. Finding that the trial

court properly denied both motions for judgment on the evidence and that the jury verdict

was not against the weight of the evidence, we affirm.

                              Facts and Procedural History

       In July 2011, Thompson was driving on South Bend Avenue in South Bend, Indiana.

He was talking on his cell phone while driving. Once he hung up his phone, he was briefly

distracted by a person on the side of the road. When he looked back at the road, he noticed

that the cars in front of him had stopped. He ran into a car in front of him, causing that car

to be pushed into the car in front of it. Although Thompson’s air bags never deployed and

he had no bruising or soreness, his SUV had hood and grill damage.

       The car in front of Thompson was driven by Mark Sinclair, a non-party to this

lawsuit. There were two marks on Sinclair’s car where Thompson hit him, but none of the

taillights on the back of Sinclair’s car were broken.

       The car in front of Sinclair was driven by Himes. According to Himes, she was

stopped for approximately thirty seconds at a red light before Sinclair’s car hit hers. She

looked into her rear-view mirror and saw that the car behind her was moving a little fast.




                                              2
According to Himes, she did not know whether Sinclair’s car ever stopped before it hit

hers. Sinclair’s car also pushed Himes’s car into the car in front of hers.

       Himes stated that the collision knocked her unconscious because she did not

remember anything from the time she heard breaking glass until a police officer was at her

car door. After the collision, Himes went home. She was in pain. Her left shoulder, left

elbow, and left knee were hurting. Because she could not move, Andrew Roberts, who

was living with Himes at the time, took her to the emergency room at St. Joseph’s Hospital.

According to Roberts, Himes was “not able to move [and in] extreme pain” at the hospital.

Tr. p. 33. The hospital gave her a shot for her pain and took some x-rays. Once home,

Himes felt better, but later in the evening she was in pain again after the shots wore off.

After the accident, Himes was unable to work. Roberts had to help her get in and out of

bed and off the couch. After the accident her shoulder, back, elbow, and knee continued

to bother her. She missed four weeks of work.

       Before trial, Himes moved for summary judgment, arguing that there was no

genuine issue of material fact because Thompson admitted in his deposition that he took

full responsibility for the accident and it was his fault. Appellant’s App. p. 18, 24.

Thompson, however, argued that there was a genuine issue of material fact because a jury

could find that Sinclair’s car would have hit Himes’s car even if it had not been hit by

Thompson’s vehicle first. Id. at 29. The trial court agreed and denied Himes’s motion for

summary judgment, stating that genuine issues of fact existed. Id. at 32. The trial court

also issued a pretrial order, which included Himes’s Contentions, Thompson’s

Contentions, and Contested Issues of Fact. Appellee’s App. p. 1-6. At the conclusion of


                                              3
the order, the pretrial order stated that it had been “formulated at a conference at which the

parties’ counsel appeared, and reasonable opportunity has been afforded counsel for

corrections and additions before the court signed it. . . . The pleadings are merged into this

order.” Id. at 5.

       A one-day jury trial was held. At trial, Thompson testified that it was his fault for

hitting the car in front of his, stating that “I have no qualms with that whatsoever. I should

have had my vehicle under control and I didn’t. When [Sinclair’s] brake lights come on

[sic], I was too close to stop.” Tr. p. 81. In taking responsibility for the accident, Thompson

said, “I hit the vehicle in front of me, yes.” Id. However, when asked whether he was

responsible for pushing Sinclair’s car into Himes’s car, he said, “I have no idea. I don’t

know if he hit her, I hit him. I couldn’t tell you. I do not know.” Id. at 82.

       After the evidence was presented, Thompson moved for judgment on the evidence,

arguing that although there was evidence that Thompson rear-ended Sinclair, there was no

evidence that “Sinclair rear-ended Ms. Himes because of what he did.” Id. at 97. Himes

responded that the motion should be denied because Thompson admitted that the accident

was his fault. The trial court stated that it was a close case, but ultimately chose to deny

the motion. Id. at 105.

       After the trial court ruled on Thompson’s motion for judgment on the evidence,

Himes moved for judgment on the evidence, arguing that Thompson did not meet his

burden to prove that Sinclair caused or contributed to the car crash. Thompson responded

that there was testimony that Sinclair was driving too fast for conditions and never stopped.

Id. at 106. The trial court denied Himes’s motion. Id. at 107.


                                              4
       The jury concluded that Himes was zero percent at fault, Thompson was sixty-eight

percent at fault, and Sinclair was thirty-two percent at fault. Appellant’s App. p. 3. The

jury also decided that Himes was entitled to $20,000 in damages and that Thompson was

liable to Himes for $13,600. Id.

       Himes appeals, and Thompson cross-appeals.

                                   Discussion and Decision

       Himes makes two arguments on appeal. First, she claims that the trial court erred

in denying her motion for judgment on the evidence. Second, she claims that the jury

verdict was against the weight of the evidence. Thompson cross-appeals, arguing that the

trial court erred in denying his motion for judgment on the evidence.

                                       I. Jury Verdict

       Himes argues that the jury’s verdict was against the weight of the evidence because

there was “no substantial, probative evidence that the nonparty did anything to cause or

contribute to the collision.” Appellant’s Br. p. 14. On appeal, we will only reverse a jury’s

verdict when “there is a total failure of evidence or where the jury’s verdict is contrary to

the uncontradicted evidence.” Ohio Farmers Ins. Co. v. Indiana Drywall & Acoustics,

Inc., 970 N.E.2d 674, 686 (Ind. Ct. App. 2012), trans. denied. We will not reweigh the

evidence or judge the credibility of witnesses. Id. Instead, we will “determine whether the

jury’s verdict is supported by substantial evidence of probative value.” Id. In doing so,

“[t]he evidence and all reasonable inferences drawn therefrom will be viewed in favor of

the verdict.” Id.




                                             5
       Himes argues that the jury verdict was against the weight of the evidence because

although there was evidence of a car between Thompson’s and Himes’s, no witness

established that the car between Thompson and Himes was driven by Sinclair or identified

Sinclair as the third party. Although no evidence at trial established Sinclair was the third

party, both Himes’s Contention and the Contested Issues of fact in the pretrial report

reference the possibility that Sinclair, a third party, was partially responsible for Himes’s

damages. A pretrial order is to “limit the issues for trial to those not disposed of by

admission or agreement of counsel, and such order when entered shall control the

subsequent course of action, unless modified thereafter to prevent manifest injustice.” Ind.

Trial Rule 16(J). It is well settled that a pretrial order controls the proceedings once

entered. Rust-Oleum Corp. v. Fitz, 801 N.E.2d 754, 757 (Ind. Ct. App. 2004), trans.

denied. Moreover, “[t]he express purpose of T.R. 16 is to provide for a pre-trial conference

to simplify the issues raised by the pleadings and to define these issues within a pre-trial

order.” Id. at 757-58.

       Here, the pretrial order shows that a third party may have been partially responsible

for the damage to Himes’s car. Under the heading “Plaintiff’s Contentions,” it is written

that “[Thompson] struck the rear of a vehicle being driven by Mark Sinclair. Due to the

force of the impact, the Sinclair vehicle was pushed into plaintiff, Roberta Himes’s vehicle

. . . .” Appellee’s App. p. 1. Similarly, one of the contested issues of fact at trial was, “Was

Mark Sinclair’s fault a responsible cause of the accident and the injuries and damages the

plaintiff attributes to it?” Id. at 2. In simplifying the issues at trial, the Contentions and




                                               6
Contested Issues of Fact establish that Sinclair was driving the car between Himes’s and

Thompson’s.

        Second, Himes argues that Thompson “took full responsibility for this accident” and

did not know of any facts suggesting that Sinclair was negligent. Appellant’s Br. p. 13.

Thompson responds that his statement was not a clear and unequivocal admission of

liability. Appellee’s Br. p. 13.

        At trial, Thompson testified as follows:

        Q: Okay. And you ran into the back of a vehicle in front of you?
        A: Correct
        Q: Okay. You took -- you take full responsibility for this accident, don’t
        you?
        A: I hit the vehicle in front of me, yes.
        Q: You take full responsibility for this accident, right?
        A: I hit the vehicle in front of me, yes.
        Q: Do you remember when I took your deposition?
        A: Yes.
        Q: I asked you the question, “Question: Do you take full responsibility for
        this accident?” Answer was “Yeah.”
        A: Yes.
        Q: Right? And then I asked, “It was your fault?” And you said--
        A: Yes.
        Q: Exactly. Correct?
        A: Correct.

Tr. p. 80-81.

        At the deposition and at trial, Thompson had two seemingly different versions of

the accident.1 At the deposition, he took full responsibility for the accident, while at trial

he maintained that he was at fault only for hitting the car in front of his. Himes’s attorney




        1
          We say “seemingly different versions of the accident” because, as Thompson convincingly argues,
“the accident” may refer to either the collision with Sinclair alone or the complete chain reaction that injured
Himes.
                                                       7
impeached Thompson at trial by using the seemingly inconsistent deposition, which may

also be used as substantive evidence of his liability. See Ind. Evidence Rule 801(d)(1)(A).

Ultimately, the decision as to what Thompson admitted to was a question for the jury to

decide.

        We also agree with Thompson that a jury could reasonably infer that Sinclair did

not stop before hitting Himes. Himes testified that the person behind her “was moving a

little bit fast, but he was way back.” Tr. p. 65. She also stated that she did not know if

Thompson hit Sinclair’s car before Sinclair’s hit hers. Id. at 67. Moreover, Thompson

testified that the person in front of him “had slammed on his brakes.” Id. at 86. For this

reason, independent evidence exists that Sinclair may have been partially responsible for

the damage to Himes’s car. The jury’s finding that Sinclair was thirty-two percent

responsible even though Thompson testified that he took “full responsibility” at his

deposition was not against the weight of the evidence.2

                                  II. Thompson’s Cross-Appeal

        Thompson cross-appeals, arguing that the trial court erred in denying his motion for

judgment on the evidence because there was no evidence from which the jury could

reasonably infer that Thompson’s negligence proximately caused Himes’s injuries.

        In reviewing a motion for judgment on the evidence, we look “only to the evidence

and reasonable inferences most favorable to the non-moving party.” Purcell v. Old Nat’l

Bank, 972 N.E.2d 835, 839 (Ind. 2012). Trial Rule 50(A) states, in relevant part:


        2
          Himes also contends that the trial court erred in denying her motion for judgment on the evidence
under Indiana Trial Rule 50(A). Because we find that the jury verdict is not against the weight of the
evidence, we cannot say that the issues determined by the jury were “not supported by sufficient evidence.”
Ind. Trial Rule 50(A).
                                                    8
       Where all or some of the issues in a case tried before a jury . . . are not
       supported by sufficient evidence or a verdict thereon is clearly erroneous as
       contrary to the evidence because the evidence is insufficient to support it, the
       court shall withdraw such issues from the jury and enter judgment thereon or
       shall enter judgment thereon notwithstanding a verdict.

Indiana Trial Rule 50(A).

       To determine whether the evidence is sufficient, we apply both a quantitative and

qualitative analysis. Evidence fails quantitatively if “it is wholly absent; that is, only if

there is no evidence to support the conclusion.” Purcell, 972 N.E.2d at 840. However,

“[i]f some evidence exists, a court must then proceed to the qualitative analysis to

determine whether the evidence is substantial enough to support a reasonable inference in

favor of the non-moving party.” Id.

       Evidence fails quantitatively “when it cannot be said, with reason, that the intended

inference may logically be drawn therefrom; and this may occur either because of an

absence of a witness or because the intended inference may not be drawn therefrom without

undue speculation.” Id. (quoting Am. Optical Co. v. Weidenhamer, 457 N.E.2d 181, 184

(Ind. 1983)). In other words, “[i]f there is evidence that would allow reasonable people to

differ as to the result, judgment on the evidence is improper.” Smith v. Baxter, 796 N.E.2d

242, 243 (Ind. 2003).

       Here, the evidence does not fail quantitatively or quantitatively. Based upon the

evidence at trial, there were at least three cars involved in the accident. Pictures and

testimony show that the front of Thompson’s SUV, both the back and front of Sinclair’s

car, and the back of Himes’s car were damaged. Moreover, Thompson testified that he

took “full responsibility for the accident.” Tr. p. 80-81. While it is unclear whether he was


                                              9
specifically referring to the collision with Sinclair or the entire chain reaction, a jury could

reasonably conclude that he was referring to the entire series of collisions. If so, the

evidence would not fail quantitatively or qualitatively. The trial court properly denied

Thompson’s motion for judgment on the evidence.

       Affirmed.

RILEY, J., and MAY, J., concur.




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