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Rear-ended motorist found 70 percent liable wins on appeal

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A jury that found a Kokomo motorist 70 percent at fault when his vehicle sitting at an intersection was rear-ended misread the law, as did a judge who instructed jurors, the Indiana Court of Appeals ruled.

Marshall Banter, who was injured five years ago, will get a new trial, the panel ruled. He twice has been found 70 percent at fault in the crash, and he appealed the trial court’s denial of his motion to correct error after the most recent verdict.

In Marshall Banter v. Joshua Sheets, 34A05-1212-CT-629, the court ruled that the jury misunderstood and misapplied Indiana’s Comparative Fault Act, particularly because Sheets did not dispute his liability in the crash.   
 
The appellate panel found fault with the following instruction Howard Superior Judge George A. Hopkins offered jurors: “If you find a plaintiff failed to use reasonable care to minimize any of the damages he alleges he has sustained and that failure was a proximate cause of any of the damages he claims, then such conduct would constitute fault to be assessed against the plaintiff.”

“We hold that … portion of this jury instruction is an incorrect statement of the law,” Judge Edward Najam wrote for the court.

"Because Sheets conceded liability, the only issue for the jury to determine was the amount of Banter’s damages, and there was no basis for any assessment of fault against Banter. We reverse and remand for a new trial, and the jury shall be instructed in relevant part that Sheets has conceded 100% fault in causing the accident and that the jury shall only determine the amount of Banter’s damages, if any."
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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