      MEMORANDUM DECISION
      ON REHEARING

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                           FILED
      regarded as precedent or cited before any                       Mar 09 2017, 6:55 am

      court except for the purpose of establishing                         CLERK
                                                                       Indiana Supreme Court
      the defense of res judicata, collateral                             Court of Appeals
                                                                            and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Natalie Shrader                                          Kevin W. Marshall
      Burke Costanza & Carberry LLP                            Hobart, Indiana
      Merrillville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gasser Chair Company, Inc.,                              March 9, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A05-1606-CT-1226
              v.                                               Appeal from the Lake Superior
                                                               Court
      Marlene J. Nordengreen,                                  The Honorable Bruce D. Parent,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45D04-1001-CT-7



      Robb, Judge.


[1]   In Gasser Chair Co., Inc. v. Nordengreen, No. 45A05-1606-CT-1226 (Ind. Ct. App.

      Dec. 22, 2016), Nordengreen sought damages under the Indiana Products

      Liability Act against Gasser for injuries she suffered after a chair manufactured
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A05-1606-CT-1226 | March 9, 2017
                                                                                                   Page 1 of 4
      by Gasser collapsed and smashed her leg. Gasser appealed the judgment in

      favor of Nordengreen on the basis the trial court abused its discretion in

      denying its motion for judgment on the evidence. On appeal, we concluded the

      record demonstrated Nordengreen voluntarily withdrew her products liability

      claim and attempted to proceed on a claim of negligence independent of her

      products liability claim. Specifically, we reasoned the transcript clearly showed

      Nordengreen intended to withdraw her products liability claim and such a

      finding was further bolstered when viewing the parties’ discussions regarding

      final jury instructions, where there were several references to the trial court and

      Nordengreen agreeing to withdraw jury instructions pertaining to products

      liability claims. Slip op. at *3. We further determined Nordengreen’s attempt

      to use the doctrine of res ipsa loquitor as an independent claim of negligence

      was insufficient. Id. at *4 n.4. We concluded Nordengreen did not present

      evidence of a claim of negligence independent of her products liability claim

      and therefore judgment on the evidence should have been granted in favor of

      Gasser. Id. at *4. Accordingly, we reversed and remanded with instructions for

      the trial court to enter judgment in favor of Gasser.


[2]   Nordengreen has filed a petition for rehearing, contending we critically

      misunderstood aspects of what occurred at the trial court. 1 Specifically, she




      1
        Due to e-filing issues, this court did not receive Gasser’s brief in response to Nordengreen’s petition in a
      timely fashion. Gasser has now filed a motion for leave to refile its response and attached the response to the
      motion. In an order issued contemporaneously with this decision, we grant Gasser’s motion for leave to
      refile its brief in response and have considered its brief accordingly.
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A05-1606-CT-1226 | March 9, 2017
                                                                                                   Page 2 of 4
      claims she did not withdraw her products liability claim, and in support, she has

      filed a motion to supplement the record to include the final jury instructions,

      which were not submitted as a part of the original record. In an order issued

      contemporaneously with this decision, we granted Nordengreen’s motion to

      supplement the record, and as a result, granted rehearing to address any effect

      the final jury instructions have on this case.


[3]   Nordengreen directs us to jury instructions number 9, 10, 11, and 13 which she

      claims come from a chapter titled “Product Liability: Negligence” in the

      Indiana Model Civil Jury Instructions. Instruction #9 addresses comparative

      fault and defines “fault”; instruction #10 defines negligence; instruction #11

      addresses causation; and instruction #13 defines reasonable care. Although

      these instructions may have come from the “Product Liability: Negligence”

      chapter of the manual, we are left unpersuaded such evidence supports

      Nordengreen’s claim she did not voluntarily withdraw her products liability

      claim, especially in light of the fact these instructions appear to be pattern

      instructions applicable in most, if not all, negligence cases. We further

      emphasize Nordengreen did not originally include these instructions as part of

      the record on appeal and such an omission implies Nordengreen did not believe

      the instructions were necessary or important for our decision.


[4]   In sum, our interpretation of the record demonstrates Nordengreen voluntarily

      withdrew her products liability claim and the discussions between the parties

      regarding the final jury instructions only bolstered our conclusion. The final


      Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A05-1606-CT-1226 | March 9, 2017
                                                                                                   Page 3 of 4
jury instructions now made part of the record do not dissuade us from our

earlier decision and we therefore reaffirm our earlier opinion in all respects.


Mathias, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision on Rehearing 45A05-1606-CT-1226 | March 9, 2017
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