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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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