J.B. Hunt Transport, Inc., and Terry L. Brown, Jr., Appellants-Defendants,
The Guardianship of Kristen Zak, Appellee-Plaintiff
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,
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.
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.
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
• 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
• 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
• There is insufficient evidence supporting the
• The jury erroneously apportioned fault.
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.
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.
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.
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.
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.
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.
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.
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.
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.
October 26, 2006, Guardianship filed a complaint against the
appellants,  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. 
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.
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
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.
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
• The fact that Robinson had, in the past, been found
liable for driving-related offenses.
appellants also filed a motion in limine, seeking to exclude
the following evidence:
• Hunt's review of the accident and termination of
• The Indiana and Illinois Commercial Driver's
License (CDL) Test Booklets as evidence of a standard of
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.
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
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.
Denial of Bifurcation
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. ...