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Jury instruction requires new damages trial

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A jury instruction the Indiana Court of Appeals found to incorrectly state the law required the court to remand for a new trial on damages in a negligence suit.
 
The Court of Appeals reversed the $12,500 jury award of damages to Patricia Buhring in her negligence suit against Phillip Tavoletti. Buhring sued Tavoletti following a car accident in which he hit her. She delayed getting medical treatment because she thought she only had minor injuries, but her pain increased over time. She sought medical treatment a month after the accident and had to continue treatment and medical visits as a result of her injuries.

At issue in Patricia E. Buhring v. Phillip V. Tavoletti, No. 45A03-0810-CV-511, is whether the trial court erred when it instructed the jury regarding mitigation and damages. The Court of Appeals determined Tavoletti failed to produce enough evidence of causation to support the giving of the mitigation of damages instruction. Tavoletti argued that Buhring failed to get treatment recommended by her doctor and her delay could have prolonged her injury or prevented healing. He relied on testimony during cross-examination of Buhring's doctor to support his argument.

But Buhring's doctor testified that not everyone's bodies respond to accidents the same way and sometimes people don't feel the effects of an accident until a week later, wrote Judge Elaine Brown. The doctor's cross-examination testimony doesn't establish that Buhring should have received earlier treatment, nor did Tavoletti show Buhring's actions caused her to suffer a discrete, identifiable harm arising from her failure to receive earlier treatment, and not arising from his acts alone, she wrote.
 
The appellate court also found the damages instruction to the jury was at best, misleading, and at worst, an incorrect statement of the law. The jury instruction said, "Damages are designed to compensate an injured person for any damages sustained by her as a direct and proximate result of the negligence of another, and to place an injured person in the same financial position in which she would have been had the negligence not occurred." Placing an injured person in the same financial position isn't a pattern instruction, as the trial court indicated in the instruction, nor is it applicable in a negligence claim. The second half the jury instruction is misleading because it doesn't take into account Buhring's pain and suffering, wrote the judge.

Cases such as Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 941 (Ind. Ct. App. 1994), held an injured person in tort actions should be placed in the same financial position as if the tort hadn't occurred. The appellate court noted that was a concept that has been criticized and is subject to substantial limitations, wrote Judge Brown.

The Court of Appeals remanded for a new trial on damages because the instruction at issue wasn't a harmless error.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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