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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man who was nearly killed in a tree cutting accident successfully appealed his negligence claims to the 7th Circuit Court of Appeals, which found error with the admission of evidence that he was not wearing certain safety equipment at the time of the incident.
While assisting a friend in cutting down trees on his property, Johnny Webber was hit in the head by a dead branch. The blow was nearly fatal, leaving Webber with severe injuries. Prior to the accident, property owner Roger Butner informed Webber that he would keep a look out for any hazards as Webber used the chainsaw to cut the branches.
Webber filed a negligence claim against Butner, alleging Butner had a duty to take reasonable steps to protect Webber’s safety. He further alleged Butner had a specific duty to Webber when he agreed to look out for hazards and failed to warn Webber of the falling branch.
Indiana Southern District Court Judge Tanya Walton Pratt allowed the admission of evidence that Webber was not wearing a hard hat during the accident, but only as it pertained to showing assumption of risk, comparative fault and whether Webber acted as a reasonably careful person.
After that evidence was introduced, the jury decided on a razor‐thin split when apportioning fault – 51 percent to Webber and 49 percent to Butner. Thus, the district court ruled in favor of Butner, but the 7th Circuit vacated that judgement when it found the lower court committed error in admitting the evidence to apportion fault.
The 7th Circuit noted that in determining fault under Indiana substantive tort law, the admission of evidence that an injured plaintiff was not using safety equipment is barred unless the failure to use the equipment contributed to causing the injury. Here, the circuit panel found that the fact that Webber was not wearing a hard hat did not cause the branch to fall and hit him on the head, and that Butner acknowledged there was no evidence that the absence of a that safety equipment caused the accident.
“Since there was no causal relationship between Webber’s lack of a hardhat before the injury and the injury‐causing event or the injuries themselves, Indiana law did not provide a basis for admitting this evidence,” Circuit Judge David Hamilton wrote for the unanimous panel.
“…The fact that Webber was not wearing a hardhat did not cause the tree branch to fall and hit him,” Hamilton continued. “Admitting this evidence and submitting an instruction to the jury that allowed them to consider it in apportioning fault were legal errors. The jury’s apportionment of fault between the parties was so close that we cannot treat the errors as harmless.”
The case of Johnny Webber and Debora Webber v. Roger Butner, 18-2866, was therefore vacated and remanded for Webber to receive a new trial.
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