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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. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  2. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  3. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  4. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  5. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

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