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J.B. Hunt Transport, Inc. v. Guardianship of Zak

Court of Appeals of Indiana

August 18, 2016

J.B. Hunt Transport, Inc., and Terry L. Brown, Jr., Appellants-Defendants,
v.
The Guardianship of Kristen Zak, Appellee-Plaintiff

         Appeal from the Lake Superior Court The Honorable Diane Kavadias Schneider, Judge Trial Court Cause No. 45D11-0610-CT-190

          ATTORNEYS FOR APPELLANTS John B. Drummy Mark D. Gerth Kightlinger & Gray, LLP Indianapolis, Indiana Crystal G. Rowe Whitney E. Wood Kightlinger & Gray, LLP New Albany, Indiana Keith A. Gaston Bruce D. Jones Cruser, Mitchell & Gaston, LLC Indianapolis, Indiana Julie R. Murzyn O’Neill, McFadden & Willett, LLP Schererville, Indiana.

          ATTORNEYS FOR APPELLEE Timothy S. Schafer Timothy S. Schafer II Todd S. Schafer Schafer & Schafer, LLP Merrillville, Indiana Gregory W. Brown Brown & Brown, P.C. Merrillville, Indiana.

          Baker, Judge.

         [1] In January 2006, Terry Brown was driving a semi tractor-trailer for his employer. While traveling on I-65 in snowy conditions, Brown lost control of the semi, which ended up jackknifed and disabled in the median. An hour later, a vehicle in which Kristen Zak was a passenger slid off of the same part of I-65 and crashed into Brown's semi in the median. As a result of the accident, Zak suffered permanent, serious brain damage. Her guardians filed a complaint alleging negligence on the part of Brown and his employer.

         [2] J.B. Hunt Transport, Inc. (Hunt) and Terry L. Brown, Jr. (Brown) (collectively, the appellants) appeal following a jury verdict in favor of the Guardianship of Kristen Zak (Guardianship) on Guardianship's negligence claim. The appellants raise the following arguments:

• The trial court improperly denied the appellants' motion to bifurcate the trial on the issues of liability and damages.
• The trial court improperly admitted certain evidence and excluded certain other evidence.
• The trial court erroneously gave certain jury instructions and refused to give certain other jury instructions.
• The trial court should have granted the appellants' motion for summary judgment and/or their motion for directed verdict on the issues of duty and proximate cause.
• There is insufficient evidence supporting the jury's verdict.
• The jury erroneously apportioned fault.

         We find that there were multiple questions of fact that needed to be answered by a jury, and we find no basis on which to second-guess the jury's answers. We also find no questions of law warranting reversal. Therefore, we affirm.

         Facts[1]

         The First Accident

         [3] On January 17, 2006, Brown was a semi tractor-trailer driver employed by Hunt. 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. [2] 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 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, 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.

         Post-Accident Fallout

         [9] Following the accident, Hunt's claims department-as it does with all accidents-undertook a review to determine whether the first accident was preventable. To that end, Brown's supervisor completed an Injury Investigation Report, Appellants' App. p. 1398, and a Safety Event Review, id. at 1399. Hunt ultimately found that the accident was preventable, and as a result of its review, Brown's employment was terminated.

         The Litigation

         [10] On October 26, 2006, Guardianship filed a complaint against the appellants, [3] alleging that Brown and Hunt were negligent and that their negligence caused her injuries. Guardianship contended that Brown was directly liable and that Hunt was vicariously liable. [4]

         [11] On May 29, 2008, the appellants moved for summary judgment, arguing that they did not owe a duty to Zak and that Brown's actions did not proximately cause Zak's injuries. On November 25, 2009, the trial court denied the summary judgment motion. Subsequently, the trial court supplemented its ruling, finding as a matter of law that the appellants, "as operators and owners of a motor vehicle traveling the highways of the State of Indiana, " owed Zak a duty of care. Appellants' App. p. 71.

         [12] Before the first scheduled trial, the appellants moved to bifurcate the issues of liability and damages. On January 12, 2011, the trial court granted the motion. On February 7, 2011, a trial on liability commenced, but it ended in a mistrial.

         [13] Before the second scheduled trial, Guardianship filed a motion to reconsider bifurcation, arguing that the law had changed since January 12, 2011, as a result of this Court's opinion in Dan Cristiani Excavating Co. v. Money, 941 N.E.2d 1072, 1076 (Ind.Ct.App. 2011). On September 22, 2014, the trial court granted Guardianship's request and vacated the earlier bifurcation order. On October 27, 2014, the second trial began, but this trial also ended in a mistrial.

         [14] Before the third scheduled trial, Guardianship filed a motion in limine, seeking to exclude several pieces of evidence:

• Robinson's two admissions that he had been driving seventy miles per hour when the second accident occurred;
• The fact that Robinson's driver's license had been suspended in the past;
• The fact that Robinson had once received a speeding ticket; and
• The fact that Robinson had, in the past, been found liable for driving-related offenses.

         The appellants also filed a motion in limine, seeking to exclude the following evidence:

• Hunt's review of the accident and termination of Brown's employment;
• The Indiana and Illinois Commercial Driver's License (CDL) Test Booklets as evidence of a standard of care.

         The trial court denied Guardianship's motion with respect to Robinson's statements about his driving speed before the accident but granted the rest of Guardianship's requests. The trial court denied the appellants' motion to exclude the CDL Test Booklets as standard-of-care evidence. It also denied the motion to exclude reports resulting from Hunt's internal review process, finding that these documents were not evidence of subsequent remedial measures, but it granted the appellants' motion regarding any reference to the termination of Brown's employment.

         [15] A third trial began on May 4, 2015. Following Guardianship's case-in-chief, the appellants moved for a directed verdict; the trial court denied the motion. During the appellants' case-in-chief, they called Gary Thomas, a safety compliance consultant and advisor, as a witness. On cross-examination, Thomas testified that any reasonable trucking company would monitor the weather conditions in the areas where its trucks were operating and even shut down trucks if necessary. He also opined that trucking companies should communicate with and assist their drivers in making these weather-related decisions. After the close of evidence, Guardianship moved to conform its pleadings to the evidence and allow the jury to assess direct-in addition to vicarious-fault against Hunt, based on Thomas's testimony. Over objection, the trial court granted the motion.

         [16] On May 20, 2015, the jury returned a verdict in favor of Guardianship, imposing an aggregate damages award of $32.5 million. The jury assessed the following apportionments of fault: (a) 30% fault to Hunt; (b) 30% fault to Brown; and (c) 40% fault to Robinson. The appellants now appeal.

         Discussion and Decision

         I. Procedural Issues

         A. Denial of Bifurcation

         [17] First, the appellants argue that the trial court erred by denying their motion to bifurcate the issues of liability and damages. According to the appellants, the tragic and sympathetic nature of Zak's injuries unjustly prejudiced the appellants because it played on the sympathies of the jury as it considered the issue of liability. ...


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