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Filed: February 18, 1988.


Appeal from the Whitley Circuit Court, The Honorable Edward J. Meyers, Presiding Judge, Cause No. C-82-244

Staton, J., Garrard, P.j., Concurs IN Result. Miller, J., Concurs.

Author: Staton


B. Marie Reynolds, (Reynolds) Administratrix of the estate of Floyd G. Reynolds, deceased, brought suit against Strauss Veal, Inc. (Strauss) and David L. Chryst (Chryst) for the wrongful death of her husband, Floyd G. Reynolds. The jury returned a verdict in favor of Reynolds for $165,000. Both defendants Strauss and Chryst filed motions to correct error alleging, inter alia, that the trial Judge erred in denying their respective motions for judgment on the evidence at the end of the trial. The trial Judge, pursuant to Indiana Rules of Procedure, trial rule 59(j), reversed his previous ruling on the motions for judgment on the evidence, set aside the jury verdict, and entered judgments on the evidence for both Strauss and Chryst. Reynolds appeals this order raising two issues, which we have consolidated and restated as:

Whether the trial Judge erred in setting aside the jury verdict and granting Strauss' and Chryst's motions for judgment on the evidence?


Initially, we note the standard of review applicable for a judgment on the evidence.

A jury's verdict may be set aside only where a latent lack of evidence exists or the verdict is contrary to the uncontradicted evidence. Bymaster v. Bankers National Life Ins. Co. (1985), Ind., 480 N.E.2d 273, 281. When the trial court considers a motion for judgment on the evidence subsequent to the jury's verdict, it must view the evidence in a light most favorable to the nonmoving party. The trial court may enter judgment only if there is no substantial evidence or reasonable inference to be adduced therefrom to support an essential element of the claim. The evidence must point unerringly to a Conclusion not reached by the jury. Huff v. Travelers Indemnity Co. (1977), 266 Ind. 414, 363 N.E.2d 985, 990. If there is relevant evidence supporting the verdict, the motion may not properly be granted. Id. The final determination is left to the factfinder. Id.

Tancos v. A.W., Inc. (1986), Ind.App., 502 N.E.2d 109, 114, reh. denied. On appeal, we use the same standard of review in determining the propriety of a judgment on the evidence. Coffel v. Perry (1983), Ind.App., 452 N.E.2d 1066, 1068.

Reynolds proceeded on theories of product liability and negligence. The jury was instructed on both theories, but because Strauss and Chryst objected to the final instruction on negligence, they argue that only the product liability claim should be considered on appeal. However, because the objection to the instruction on negligence shown in the record lacks specificity, Strauss and Chryst have not preserved any error on appeal. Dunkelbarger Const. Co. v. Watts (1986), Ind.App., 488 N.E.2d 355, 358, reh. denied. Therefore, we will review this case to determine if there was probative evidence to support Reynolds' negligence claim.

Viewed most favorably to Reynolds, the evidence established the following. Wayne Strader became interested in veal confinement operations after seeing a program on television about them. He met with Ken Laaker, an employee of Strauss, to discuss what a veal confinement operation would entail and the profitability of such an operation. A veal confinement operation is a method of raising veal calves in which the farmer gets the calves at a very early age and raises them in an environmentally controlled barn. The calves are raised in the barn for a period of 15-17 weeks, at which time they are ready to be sold.

Strauss was in the business of promoting veal confinement operations. Strauss furnished Strader with a line sketch of the set up of the veal confinement operation. This sketch did not provide for a waste handling facility. Strauss discussed with Strader three alternative systems of waste handling. Based on the information given him by Strauss, Strader chose to go with the septic tank system. Strauss did not provide services for the waste handling component of the confinement operation, however, it was an integral and necessary part of the operation. Accordingly, Strauss recommended the services of Chyrst, an engineer who had designed septic tank systems for sixteen other customers of Strauss. Strauss contacted Chryst to have him draw up a design to submit to the Indiana Board of Health for the necessary approval of Strader's waste handling facility. Strauss also gave a copy of the design to Strader for building his facility. The designs did not indicate they were not final construction plans and specifications.

Chryst designed the septic tank system such that pumps were to be installed at the bottom of the dousing tank. The pumps were used to pump the effluent collected from the veal barn into the pipes that carried the effluent to the fields for draining. A danger existed with this type of system because the manure produces methane gas as it decomposes in the tanks. The design submitted by Chryst did not provide for any type of safety feature to protect someone going into the tank from the danger of methane gas. Neither did the design have any type of feature for raising the pumps out of the tank so that it would not be necessary to go into the tank. Methane gas is both colorless and odorless and neither Strauss nor Chryst ever warned Strader about the dangers of methane gas.

In 1980, Strader and his neighbor, Floyd Reynolds, went into the dousing pit to make some repairs on the pumps. There was no evidence that either man was aware of the danger of methane ...

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