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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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