ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
KARL L. MULVANEY THOMAS E. HAMER
DAVID C. CAMPBELL Anderson, Indiana
CANDACE L. SAGE DAVID V. DORRIS
Bingham Summers Welsh & Spilman LLP Dorris Law Firm, P.C.
Indianapolis, Indiana Bloomington, Indiana
JULIA BLACKWELL GELINAS PATRICIA A. SMALL
KEVIN C. SCHIFERL WILLIAM L. BROOM, III
Locke Reynolds LLP Barrett, Twomey, Broom, Hughes & Wesley
Indianapolis, Indiana Carbondale, Illinois
COURT OF APPEALS OF INDIANA
IRA C. RITTER and THE KROGER CO., )
vs. ) No. 49A02-9912-CV-883
JERRY STANTON and RUTH A. STANTON, )
APPEAL FROM THE MARION SUPERIOR COURT NO. 10
The Honorable Richard H. Huston, Judge
Cause No. 49D10-9506-CT-959
March 14, 2001
OPINION - FOR PUBLICATION
This case stems from a personal injury action brought against Ira Ritter and
the Kroger Company (Kroger) as a result of an accident occurring on Kroger
property while the Plaintiff, Jerry Stanton, was working as a truck driver for
a Kroger subsidiary. The jury awarded $55,000,000 in compensatory damages after determining
that Stanton was 20% at fault. We affirm.
Kroger raises two primary issues for our review, namely:
I. whether the trial court erroneously denied its motion to dismiss for
lack of subject matter jurisdiction because of the exclusivity provision of the Indiana
Workers Compensation Act (Act); and
II. whether the jury awarded excessive damages.
Forty-eight year-old Stanton was a truck driver for Gateway Freightline Corporation (Gateway), a
wholly owned subsidiary of Kroger. On May 6, 1995, he traveled from
his home state of Illinois to Indianapolis for the purpose of returning empty
milk containers to Krogers dairy. Prior to leaving Krogers Indianapolis Distribution Center,
he stopped for a break and parked his tractor-trailer beside a parked trailer.
In the meantime, Ritter, a Kroger employee, began backing a Kroger tractor
toward the same parked trailer. Unaware that Ritter was moving toward him,
Stanton walked between Ritters backing tractor and the parked trailer. After Stanton
stopped momentarily, he was pinned between the parked trailer and Ritters tractor, suffering
Stanton and his wife, Alfie, filed suit in June 1995 against Ritter and
Kroger, alleging negligence resulting in permanent injuries to Stanton and loss of consortium
to his wife. Two years later, Kroger filed a motion to dismiss
for lack of subject-matter jurisdiction on the basis that the claims were barred
by the exclusivity provision of the Act because Stanton was employed by a
Kroger subsidiary. The following year, the trial court denied the motion and
refused Krogers request for interlocutory appeal.
The case was tried to a jury for several weeks in mid-1999.
At trial, the parties stipulated that Stanton suffered $1,281,741 in special damages, including
past medical expenses, lost earnings, and lost future pension benefits. Kroger defended
the suit on the basis that Stantons claim was barred because he was
totally at fault for the accident. During his closing argument, Stanton suggested
the following damage amounts: $2 million for future medical expenses; $3 million for
past disfigurement; $10 million for future disfigurement; $7 million for past pain
and suffering/ability to function as a whole person; $30 million for future pain
and suffering; $2 million for past loss of consortium; and $10 million for
future loss of consortium. Including the $1,281,741 in special damages, Stanton requested
a total verdict of $65,281,741. After deliberating for a relatively short time,
the jury returned a verdict in favor of the Stantons for $55,000,000, which
reflected a 20% reduction or discount for Stantons comparative fault.
I. Exclusivity of Workers Compensation Remedy
The threshold issue this case presents is whether the exclusivity provision of the
Act bars Stantons claim. This provision of the Act provides:
[T]he rights and remedies granted an employee[
See footnote ] subject to I.C. 22-3-2 through I.C.
22-3-6 on account of personal injury or death by accident shall exclude all
other rights and remedies of such employee, the employees personal representatives, dependents, or
next of kin, at common law or otherwise, on account of such injury
or death . . . .
Ind.Code § 22-3-2-6. The only way for an employee to recover for
personal injuries arising out of and in the course of employment is through
workers compensation. Kroger claims that Kroger and Gateway are the same employer
for purposes of the exclusivity provision, and, therefore, that Stantons sole remedy is
through workers compensation.
A. Standard of Review
The appropriate standard of review is disputed by the parties with respect to
the question of jurisdiction. Kroger filed a motion to dismiss for lack
of subject-matter jurisdiction pursuant to Indiana Trial Rule 12(b)(1). In ruling on
a motion to dismiss for lack of subject-matter jurisdiction, the trial court may
resolve factual disputes.
Perry v. Stitzer Buick GMC, 637 N.E.2d 1282, 1286-87
(Ind. 1994); Common Council v. Matonovich, 691 N.E.2d 1326, 1328 (Ind. Ct. App.
1998), trans. denied. In doing so it may consider not only the
complaint and motion to dismiss but any affidavits or other evidence submitted.
Id. Moreover, a court may weigh the evidence to determine the existence
of the requisite jurisdictional facts. Id. It is well-settled that when
the facts are not in dispute, we review a ruling on a motion
to dismiss de novo. See, e.g., Common Council, 691 N.E.2d at 1328;
Rieheman v. Cornerstone Seeds, Inc., 671 N.E.2d 489, 491 (Ind. Ct. App. 1996),
When the facts related to subject-matter jurisdiction are in dispute, the proper standard
of review is not as clear. Some cases have said that when
we review a trial courts ruling on [a motion to dismiss for lack
of subject-matter jurisdiction], we may affirm the judgment on any theory supported by
the evidence of record. Vranicar v. Board of Commrs of Brown County,
730 N.E.2d 752, 755 (Ind. Ct. App. 2000); M.V. v. Charter Terre Haute
Behavioral Health System, Inc., 712 N.E.2d 1064, 1066 (Ind. Ct. App. 1999).
Additionally, when in ruling on such a motion the trial court considers evidence
outside the complaint (affidavits, etc.), holds a hearing during which the parties present
arguments regarding the evidence, and issues findings of fact and conclusions thereon, an
appellate court will review the trial courts resolution of the factual disputes by
applying a clearly erroneous standard. Lawson v. Raney Mfg., 678 N.E.2d 122,
126 (Ind. Ct. App. 1997), trans. denied.
We have stated that the question of whether an injury occurred in the
course of employment depends upon the facts and circumstances of each case.
Northcutt v. Smith, 642 N.E.2d 254 (Ind. Ct. App. 1994).
In that case, we reasoned:
[a]lthough the Northcutts concede that Northcutts injury arose in the course of his
employment and the facts are not in dispute regarding how, where, and when
the injury occurred, the question of whether Smith is subject to liability pursuant
to the Act remains a mixed question of law and fact, which ultimately
will determine whether the trial court has jurisdiction over the subject matter.
Id. at 256 (emphasis added). We concluded that the review of such
a factual determination was for an abuse of discretion. Id.
B. McQuade v. Draw Tite, Inc.
Despite the semantic differences among these cases in articulating the standard of review,
the overarching principle is clear: when the trial court resolves factual issues
in reaching its decision on subject-matter jurisdiction, deference should be afforded on appeal
just as in any other type of case where the trial court weighs
the facts. The standard of review for the jurisdiction determination in this
case then turns on the question of whether there were any questions of
fact before the trial court in ruling on the motion to dismiss.
The parties may not dispute the facts surrounding the accident, but they do
dispute some of the facts and many of the inferences to be drawn
therefrom relating to the relationships between Kroger and Gateway and between Kroger and
Stanton. The trial court necessarily made factual determinations in reaching its conclusion
that Stantons claim was not barred by the Act, even though it did
not issue written findings detailing those specific determinations. Therefore, we will give
deference to the trial courts decision when reviewing this issue. We now
turn to the substance of the arguments.
The thrust of Krogers jurisdictional argument is that Kroger and Gateway were the
same employer at the time of the accident and, as a result, Stanton
is prohibited from suing Kroger. In effect, Kroger is asking us to
permit it to defensively pierce the corporate veil erected when it formed its
parent-subsidiary corporate structure and find that it was actually the employer of Stanton
by virtue of the fact that it is Gateways parent company.
The watershed case addressing this issue is McQuade v. Draw Tite, Inc., 659
N.E.2d 1016 (Ind. 1995). In that case, an injured employee brought a
negligence action against her employers parent corporation for injuries sustained in the course
of employment. The trial court held that the parent company was so
interconnected with the subsidiary that it was equivalent to the plaintiffs employer under
the Act and, therefore, that the plaintiff could not pursue the cause of
action because the exclusive remedy for her injuries against her employer was under
the Act. McQuade, 659 N.E.2d at 1017.
Our supreme court reversed the trial court and this court, rejecting our conclusion
that because the parent company oversaw and controlled the subsidiarys operations, reported the
subsidiarys earnings as profits, shared a workers compensation policy with the subsidiary, and
performed payroll and accounting functions for the subsidiary, the parent and subsidiary corporations
were not distinct and separately operated corporations. Id. at 1020. The
supreme court held as a case of first impression that the exclusivity provision
of the Act did not prevent an employee of a subsidiary from suing
a parent corporation for injuries sustained in the course of employment. Id.
The supreme court recognized a subsidiary and its parent corporation as separate
legal entities and acknowledged that a court may exercise its equitable power in
disregarding the corporate form. Id. However, the supreme court emphatically concluded
there is little likelihood that equity will ever require us to pierce the
corporate veil to protect the same party who erected it. Id. (emphasis
added). Because corporate parents are not covered under the language of the
exclusivity clause, and any uncertainty as to the clauses applicability calls for a
narrow construction of the statute in favor of the employee, the supreme court
found no statutory basis for the trial courts grant of summary judgment in
favor of the corporate parent. Id.
In so holding, the court cited the well reasoned analysis of the Sixth
Circuit, which had adopted the most widely accepted approach and stated:
[A] business enterprise has a range of choice in controlling its own corporate
structure. But reciprocal obligations arise as a result of the choice it
makes. The owners may take advantage of the benefits of dividing the
business into separate corporate parts, but principles of reciprocity require that courts also
recognize the separate identities of the enterprises when sued by an injured employee.
Id. at 1019 (quoting Boggs v. Blue Diamond Coal Co., 590 F.2d 655,
661-62 (6th Cir. 1979), cert. denied, 444 U.S. 836, 100 S. Ct. 71
See footnote Our supreme court reiterated that it was, after all, [the] defendant
who chose to structure itself in its present multi-corporate form.
1020. The supreme court clarified its holding by stating, [w]hat our decision
is meant to prevent is a situation where an injured party would be
deprived of his or her day in court by the purely fortuitous circumstance
that the alleged tortfeasor is the corporate parent of the injured partys employer.
Id. at 1020 n.7.
On its face, Krogers entreaty to pierce its corporate veil defensively by claiming
Stanton cannot sue the parent corporation of his employer clearly fails in light
of the express holding by the McQuade court rejecting such an attempt.
Nonetheless, Kroger contends that McQuade is distinguishable because the relationship between it and
Gateway is more interconnected than the relationship between the parent and subsidiary corporations
in that case. Our review of the record leads us to conclude
that although there is undoubtedly some degree of interconnectedness between Kroger and Gateway,
we see no legal compulsion to depart from the McQuade holding.
Kroger and Gateway had a contract governing the terms for the services Gateway
provided to Kroger. It contains several clauses contradicting Krogers assertion that it
considered Gateway to be the same entity and/or that it perceived Gateway drivers
to be its own direct employees. The contract identifies the companies as
separate entities and states that Gateway was engaged in the business of warehousing
and distributing dry groceries, health and beauty aids, dairy perishables and produce (product),
meat, frozen food and fresh dairy products and that Kroger desires to utilize
the facilities and services of [Gateway]. Record p. 932. The contract
provides that Gateway is a bailee only and that title to all product
delivered for Kroger shall remain in Kroger. Id. Significantly, the
contract contains mutual clauses whereby each company agreed to hold the other harmless
and indemnify the other from all claims, suits, and judgments for damages caused
by the act or omission of its agent or employee. Also, Gateway
was required to furnish Kroger with a certificate evidencing coverage under Illinois workers
compensation laws. Kroger is required to pay Gateway for each case of
product it delivered and for transportation charges according to the published tariff.
Attached to the contract are several exhibits detailing various aspects of the work
to be performed by Gateway. One of the exhibits indicates that Gateway
would deliver store mail to Kroger stores for a per-delivery fee. Another
exhibit concerns baled salvage and provides that Gateway would charge Kroger a fee
per bale for handling it. The exhibit also states that a buyer
should direct checks for the bales to Gateway and that Gateway would send
checks to Kroger for its portion. These contract provisions are not the
type one would typically expect Kroger to have in an agreement with its
There are other indicia of the nature of the relationship between Kroger and
Gateway. First, the hiring of anyone below the top management of Gateway
was left to Gateway employees. The employment application completed by Stanton was
labeled as that of Gateway. After the accident, Gateway filed the First
Report of Injury or Illness as the employer without referencing Kroger. Kroger
maintains that it had at least indirect authority to discipline Gateway drivers.
It states that if a Kroger store manager had a problem with a
particular Gateway driver, the manager would call Paul Upton, Gateways Vice President and
General Manager, to complain. Appellants Brief p. 20. In addition, Kroger
claims that [c]ommon sense dictates that Kroger had the right and power to
compel the discharge of a Gateway driver . . . . Appellants
Brief p. 20. Stanton responds that Kroger did not have authority to
terminate a Gateway driver due to the local addendum to the union contract
with Gateways drivers pursuant to which only Gateway could terminate them. Krogers
Manager of Safety and Health testified that to the best of his knowledge,
no Gateway Teamster driver was ever suspended by anyone other than an employee
of Gateway. He also stated that if a Kroger store manager had
a problem with a particular Gateway driver, the manager would call Gateways Vice
President to complain but that Gateway disciplined the driver if it was deemed
necessary. Krogers Transportation Manager testified that she cannot suspend or fire a
Gateway driver because its a different contract and they have a boss.
Record p. 1510. Gateways Vice President and General Manager testified that even
at the store level, Kroger employees would not suspend a Gateway driver.
Kroger contends that the fact that it may not have had the absolute
authority to directly terminate Gateway employees does not mean that it could not
compel such termination. Appellants Reply Brief p. 14. However, the ability
to complain about a driver is not the same thing as the authority
to discipline the driver. Any customer has the ability to complain about
a driver but not the authority to directly discipline that driver. It
is clear from this evidence that although Kroger may have had some influence
over such decisions, Gateway ultimately controlled the hiring and discipline of its drivers.
Second, the parties agree that Kroger provides the capital that funds Gateways operating
budget because Gateway is operated under a zero-based budget. That is to
say, on a daily basis, all cash in excess of Gateways operating needs
is wire-transferred for deposit into Krogers operations account for investment. Likewise, if
Gateways operating costs exceed its available cash revenues, necessary funds are wire-transferred to
Gateway. However, it is reasonable to conclude from our review of the
record that at least a portion of Gateways gross receipts were returned to
Gateway to fund its own payroll. The employer participation portion of Stantons
health insurance was paid under Gateways accounting system, and Gateway reimbursed Kroger for
its portion of the workers compensation premium.
Third, Kroger supplied Gateway with tractors and trailers to which Gateway decals were
affixed. However, the tractors and trailers operated by Gateway and bearing Gateways
logo are titled in the State of Illinois in the name of Gateway.
Stanton testified that Kroger tractors were not driven unless a Gateway unit
had broken down because the tractor is a piece of equipment authorized to
run as a contract carrier for hire such that it had to be
licensed to Gateway. The executive secretary to Gateways vice-president testified that some
of the trailers pulled by Gateway drivers may carry a Kroger logo because
a company with common carrier authority can pull another companys trailers with its
own power units. In addition, if Kroger employees worked on a Gateway
truck, Kroger billed Gateway (at least as paper charges) for labor time of
the Kroger employee and for any parts used. Record pp. 1318-19, 1354.
Fourth, Kroger sometimes supplied Gateway drivers with keys to the Kroger stores to
which they made deliveries to facilitate evening or after-hours deliveries. However, when
keys to Kroger stores were given to Gateway drivers, they were given by
somebody within Gateway rather than Kroger. Furthermore, the facilities have a drivers
door because the drivers would drop or unload a mail bag, a service
for which Kroger paid Gateway.
Finally, the Kroger distribution manager, together with the manager of logistics, created delivery
schedules and determined when groceries were to be delivered to Kroger stores.
While at the distribution center, Gateway drivers were directed by Kroger managers.
Kroger provided directions as to which stores a driver was to make deliveries.
However, Gateway drivers received supervision and instructions from Gateway supervisory personnel.
Krogers logistical planning was for its own benefit and was the same as
any other customer of a trucking company that would need to coordinate deliveries.
Gateway billed Kroger for any freight hauling it did for Kroger.
From this and other evidence in the record, we conclude that although there
is a certain degree of interconnectedness between the companies, there is a deliberate
attempt to keep a significant portion of the businesses separate. Kroger may
oversee Gateways operations, report Gateways earnings, share a workers compensation policy with Gateway,
and perform some accounting functions for Gateway, but those were the exact characteristics
of interconnectedness rejected by the
McQuade court. Therefore, the policy concerns articulated
by the McQuade court are implicated here. If Kroger intends to maintain
separate corporate entities for tax or other purposes, then it should not be
permitted to disregard that corporate form when it is convenient for it to
do so to avoid potential liability. Equity requires us to reject Krogers
attempt to pierce its veil because this is the precise situation the McQuade
court intended to prevent.
C. Exception to the McQuade Holding
To circumvent this result, Kroger claims that the circumstances present in this case
fall within an exception to the McQuade prohibition. In the text of
the opinion, the McQuade court stated:
Plaintiff contends that the Court of Appeals decision is erroneous because Indiana courts
disregard the corporate form only when it has been used to promote fraud
or some other injustice, and therefore, the Court of Appeals should not have
permitted defendants defensive piercing of the corporate veil. Defendant contends that the
Court of Appeals properly applied a reverse piercing of the corporate veil doctrine
in determining that plaintiffs claim is barred.
Id. at 1019. A footnote immediately followed, stating that Defendant does not
claim that it had an express or implied employment contract with Plaintiff.
Rather, its claim is based solely upon its interconnectedness with Mongo. Id.
at 1020 n.4. Kroger argues the footnote left open the question whether
under certain circumstances, piercing the veil to find that the parent corporation is
the employer of the plaintiff could be appropriate. Kroger contends the footnote
creates an exception where an implied or express employment contract is present.
Kroger alleges that there was an express contract of employment between Kroger and
Stanton by virtue of a collective bargaining agreement and Krogers 401(k) plan.
Krogers argument presupposes the existence of an exception to the McQuade holding in
situations where there is a contract of employment. It is far from
clear that the language and context of the footnote creates such an automatic
exception. Rather, Kroger asks us to read an intent into the footnote
where we find none. As the McQuade court set out the parties
arguments, it mentioned that the defendant had not claimed the existence of a
contractual relationship. That could mean the analysis contained in the opinion might
have been different had there been an allegation of a contractual relationship; it
could also merely be a reminder that it would not specifically address the
issue of an employment contract because the issue was not before it.
We see no indication from the passing reference in the footnote that our
supreme court intended to articulate a blanket or automatic exception to its clear
holding for cases where an employment contract is involved. In those cases,
it seems appropriate to evaluate a particular contractual relationship carefully to determine whether
it is sufficient to fall outside the scope of the general McQuade holding
preventing parent corporations from seeking protection from liability by piercing their own corporate
veils. Although in other cases such contractual relationships may exist to create
an exception to the McQuade holding, we see no intent by our supreme
court to create a broad exception to its holding. This is particularly
true in light of the definitive language in the opinion clearly rejecting defensive
corporate veil-piercing based on public policy concerns.
Even if we were to indulge Krogers claim that there is some sort
of exception created by the footnote language in McQuade, we do not find
a sufficient contractual relationship between Kroger and Stanton to fall within it.
The thrust of Krogers argument is that the collective bargaining agreement governing Stantons
employment with Gateway was a contract of employment with Kroger and created an
express contractual employment relationship between Kroger and Stanton. Appellants Reply Brief p.
From August 1989 through August 1994, a labor agreement was in effect that
had been negotiated by Stantons union, Teamsters Local 627, with Gateway. Upon
the expiration of that agreement, Local 627 chose not to continue operating under
a separate agreement with Gateway and instead decided to associate Gateway members with
other workers to obtain more favorable contract terms. It decided to become
a part of the Kroger and Teamsters Master Contract that had been negotiated
between Kroger and the International Teamsters Union. In so doing, Gateway accepted
the same contract for its union drivers as was negotiated for Kroger union
drivers with certain conditions as outlined in a letter from Local 627.
The Master Contract identified The Kroger Co. as the Employer and referred to
the Teamsters Kroger National Negotiating Committee representing Local Unions affiliated with the International
Brotherhood of Teamsters and Local Union as Union. The Master Contract was
not signed by any Gateway officer, but was ratified locally.
Kroger maintains that this collective bargaining agreement created an express employment contract between
Kroger and Stanton. This court has stated:
The general rule is that, in order to be found valid and enforceable,
an employment contract must contain four terms: 1) it must state the place
of employment; 2) it must state the period of employment; 3) it must
state the nature of the services the employee is to render; and 4)
it must state the compensation the employee was to receive.
Majd Pour v. Basic American Medical, Inc., 512 N.E.2d 435, 439 (Ind. Ct.
App. 1987); see also Jones v. General Elec. Co., 87 F.3d 209, 213
(7th Cir. 1996), cert. denied. Kroger cites little authority for its declaration
that the collective bargaining agreement constituted an employment contract under this or any
other definition of such a term of art.
The primary authority Kroger does rely upon is Bentz v. Metal Products Co.
v. Stephans, 657 N.E.2d 1245 (Ind. Ct. App. 1995), which, according to Kroger,
recognizes an employee covered by collective bargaining agreement as party to an at-will
employment contract with company. Appellants Reply Brief p. 10. Our review
of that case does not lead us to the same conclusion regarding its
definitive statement on collective bargaining agreements. In Bentz, the court held
that employment security provisions in a collective bargaining agreement did not necessarily conflict
with the employment at-will doctrine and that the former employee was not barred
from pursuing an action for retaliatory discharge by the fact he was covered
by a collective bargaining agreement. Bentz, 657 N.E.2d at 1249-50. The
court noted that the company had relied heavily on Remington Freight Lines, Inc.
v. Larkey, 644 N.E.2d 931, 939-40 (Ind. Ct. App. 1994), in which this
court stated that it recognized the distinction between employees who are retained for
a definite duration or subject to contract, and employees whose employment is of
indefinite duration, and may terminate at the will of the employer for any
reason. However, the Bentz court then stated that filing a grievance, the
remedy available to [the employee] under the terms of the [Collective Bargaining] Agreement,
is not the same as obtaining relief under a breach of contract action,
which is the actionable claim of a wrongfully discharged employee under a contract
for a definite term. Id. at 1249. This case holds that
the existence of a collective bargaining agreement does not preclude the existence of
an employment at-will relationship between the employer and the employee. It does
not stand for the definitive proposition that a collective bargaining agreement creates an
Other cases have found that a collective bargaining agreement is not an employment
contract for certain purposes. For example, in Peake v. International Harvester Co.,
489 N.E.2d 102 (Ind. Ct. App. 1986), trans. denied, we held that a
collective bargaining agreement between a former employees union and his former employer was
not a written contract within the statute-of-limitation exception for actions arising from employment
agreements not in writing, and thus, the statute of limitation applied. We
rejected the plaintiffs claim that the terms, conditions, and privileges of his employment
were governed by the written collective bargaining agreement between his union, the U.A.W.,
and International Harvester on the basis that it was uncontested he was an
hourly employee hired under an oral contract. Id. at 105.
In so holding, the court relied on International Union, U.A.A. & A.I. Workers
of America (UAW), AFL-CIO v. Hoosier Cardinal Corp., 346 F.2d 242 (7th Cir.
1965), affd., 383 U.S. 696, 86 S. Ct. 1107. In that case,
the U.A.W. sought to recover vacation pay for the companys employees. Rejecting
the unions argument that a twenty-year statute of limitation for actions on written
contracts rather than Indianas six-year statute regarding accounts and contracts not in writing
applied to those facts, the Seventh Circuit determined:
[p]laintiffs action in the district court was based upon the contract of employment
between the individual employees and defendant. There is no evidence or contention
that these employment contracts were ever reduced to writing. It was for
wages due under these employment contracts that the present action was brought .
. . .
Id. at 245. In affirming, the United States Supreme Court reasoned
that [p]roof of the breach and of the measure of damages, however, both
depend upon proof of the existence and duration of separate employment contracts between
the employer and each of the aggrieved employees. Hoosier Cardinal, 383 U.S.
at 706, 86 S. Ct. at 1113. The Supreme Court held that
although the provision concerning the companys payment of vacation pay to its employee-members
was embodied within the provisions of the written collective bargaining agreement, the determination
of which statute of limitation applied was to be determined by whether each
employees contract of hiring was oral or written.
Several federal courts have likewise concluded that a collective bargaining agreement does not
create an employment contract. Most importantly, the U.S. Supreme Court has held:
Collective bargaining between employer and the representatives of a unit, usually a union,
results in an accord as to terms which will govern hiring and work
and pay in that unit. The result is not, however, a contract
of employment except in rare cases; no one has a job by reason
of it and no obligation to any individual ordinarily comes into existence from
it alone. The negotiations between union and management result in what often
has been called a trade agreement, rather than in a contract of employment.
J.I. Case Co. v. National Labor Rel. Bd., 321 U.S. 332, 334-35, 64
S. Ct. 576, 579 (1944) (emphasis added). In Young v. North Drury
Lane Productions, Inc, 80 F.3d 203 (7th Cir. 1996), the Seventh Circuit noted
that it could not find any cases where a collective bargaining agreement provided
individual guarantees of employment to named employees and cited authority stating, [A] labor
agreement is not a contract of employment; employees are hired separately and individually,
but the tenure and terms of their employment once in the unit are
regulated by the provisions of the collective bargaining agreement. Id. at 206.
Similarly, the Fifth Circuit has stated that [u]nlike a contract of employment,
ordinarily a collective bargaining agreement does not create an employer-employee relationship. . .
. It neither obligates any employee to perform work nor requires the employer
to provide work. In re Continental Airlines Corp., 901 F.2d 1259, 1264
(5th Cir. 1990), cert. denied, 506 U.S. 828, 113 S. Ct. 87.
Therefore, although collective bargaining agreements can be considered contracts relating to employment, they
do not necessarily create a contract of employment within the strict meaning of
the term. Any contractual relationship created between Kroger and Stanton by virtue
of the Master Agreement is not the sort of employment contract that would
be contemplated by the footnote in McQuade. The holding and strong policy
language of McQuade clearly reject a corporations ability to pierce its veil to
protect itself by asserting that it and its subsidiary are the same employer.
It is evident from the unequivocal language of the opinion that any
potential exception to that rule would have to be narrowly drawn and would
occur only under very limited circumstances. The contractual relationship created by the
fact that Stantons local union combined forces with the larger Teamsters organization to
secure better benefits for Gateway employees is not the sort of relationship for
which our supreme court would contemplate an exception. Rather, if any exception
is suggested by the express or implied employment contract language of the footnote,
it would be limited to cases where there is a direct employment contract
with the parent corporation, not a collective bargaining agreement that includes the parent
corporation along with other employers. To hold otherwise would circumvent the holding
and compelling policy arguments articulated in McQuade because a parent corporation could avoid
liability by piercing the corporate veil any time a collective bargaining agreement exists.
Kroger also contends that Stanton had a contractual relationship with it as a
participant in the Kroger 401(k) plan (K-Plan). The K-Plan allows participation as
Participating Employers. The participating employers of the Plan are referred to herein
as Employers and are defined as the Company and all of its subsidiaries
and any other affiliated organization which is a member of the same controlled
group of organizations under the Internal Revenue Code of 1986, as amended (the
Code) as the Company, which is authorized by the Board of Directors of
the Company (Board) to adopt the Plan and which has adopted the Plan
and Trust by the action of its own Board of Directors. Except
as otherwise indicated, any references to Kroger or the Company relating to its
role as an Employer under the Plan shall be deemed to include any
Record p. 619. The parties contest the interpretation of this language.
Kroger contends that Gateway had to be a member of the same controlled
group as Kroger pursuant to the Internal Revenue Code, which provides that all
employees of all corporations that are members of a controlled group of corporations
shall be treated as employed by a single employer. Stanton, on the
other hand, maintains that Gateway was a separate participating employer under the K-Plan
and, therefore, that his participation in the plan was not evidence that he
was a Kroger employee. Stantons position is more consistent with the plain
language of the provision. The provision clearly identifies subsidiaries as participating employers
and as separate and distinct entities from those other affiliated organizations that were
required to be part of the controlled group. Contrary to Krogers argument,
subsidiaries were not required to be part of the controlled group. We
cannot conclude that an employment contract was automatically created between Kroger and Stanton
by the fact that Stanton contributed to the K-Plan when the K-Plan is
designed to allow the participation of other employers, such as Kroger subsidiaries.
Stanton did not automatically become a Kroger employee simply because his employer, Gateway,
was one of several participating employers in the K-Plan. Furthermore, even if
some sort of contractual relationship existed between Kroger and Stanton by virtue of
the K-Plan, it is not the sort of direct employment contract that might
warrant an exception to the McQuade holding.
Our supreme court has expressly prohibited the precise type of defensive veil-piercing Kroger
is attempting to accomplish in this case. We find that the degree
of interconnectedness between the companies is not sufficient to justify a defensive piercing
here. Similarly, we find no blanket exception to the prohibition in the
language of the footnote for employment contracts. Even if such an exception
may exist under limited circumstances, we find that the collective bargaining agreement and
the K-Plan do not create a contractual relationship sufficient to bring this case
outside the scope of the McQuade holding. Therefore, we conclude that the
trial court properly denied Krogers motion to dismiss because Stantons claim is not
barred by the exclusivity provision of the Act.
The second challenge raised by Kroger relates to the damage award. Although
Kroger admits that Stanton was seriously and permanently injured, it maintains that the
award is excessive and that we should either remit it or remand the
case for a new trial on damages. Kroger contends that the verdict
was motivated by passion, prejudice, or partiality and that the evidence does not
support such a large award.See footnote
Broadly stated, the person injured by the negligence of another is entitled to
Kavanagh v. Butorac, 140 Ind.App. 139, 144, 221 N.E.2d 824,
828 (1966). Courts have said that term means such sum as would
reasonably compensate the victim both for bodily injuries and for pain and suffering.
Id. To that sum is added past, present, and future expenses
reasonably necessary to the plaintiffs treatment and all financial losses suffered, or to
be suffered, as a result of the inability to engage in his usual
occupation. Id. Compensation is the stated goal of a court when
measuring damages for personal injuries. Id. (citation omitted). The question, as
is so frequently raised in personal injury actions, is how much money reasonably
compensates the Stantons for their injuries and pain and suffering.
A. Standard of Review
This court applies a strict standard when reviewing a jury verdict containing a
damage award claimed to be excessive or inadequate. Dee v. Becker, 636
N.E.2d 176, 177 (Ind. Ct. App. 1994). On appeal, we will consider
only the evidence that supports the award together with the reasonable inferences therefrom.
If there is any evidence to support the amount of the award,
even if it is conflicting, this court will not reverse.
Traditionally, the jury has been afforded a great deal of discretion in assessing
damage awards. Sears Roebuck & Co. v. Manuilov, 2001 WL 51680 (Ind.
2001); Dollar Inn v. Slone, 695 N.E.2d 185, 190 (Ind. Ct.
App. 1998), trans. denied. This discretion is not limitless, however. This
court will set aside an award of compensatory damages as impermissibly excessive where
it is apparent from a review of the evidence that the amount of
damages is so great it cannot be explained upon any basis other than
passion, partiality, prejudice, corruption, or some other improper element. To warrant reversal,
the award must appear to be so outrageous as to impress the Court
at first blush with its enormity. Kimberlin v. DeLong, 637 N.E.2d 121,
129 (Ind. 1994) (quoting New York Cent. R.R. Co. v. Johnson, 234 Ind.
457, 127 N.E.2d 603 (1955)), cert. denied, 516 U.S. 829, 116 S. Ct.
98 (1995). Where the damage award is so outrageous as to indicate
the jury was motivated by passion, prejudice, partiality, or consideration of improper evidence,
we will find the award excessive. Id. The jurys damage award
will not be deemed the result of improper considerations if the size of
the award can be explained on any reasonable ground. Dee, 636 N.E.2d
at 178. When the evidence concerning the injury and damages is conflicting,
the jury is in the best position to assess the damages and the
jurys verdict cannot be said to be based upon prejudice, passion, partiality, corruption,
or on the consideration of some improper element. Dollar Inn, 695 N.E.2d
at 190. Our supreme court has summarized the standard as follows:
A personal injury award is not excessive where (1) the award was not
based upon jury prejudice, partiality, or corruption, (2) the jury has not misunderstood
or misapplied the evidence, (3) the award was not based upon consideration of
an improper element such as liability insurance, and (4) the award was within
the parameters of the evidence. Under such circumstances, we will not substitute
our judgment for that of the jury as to reasonable compensation for a
Kimberlin, 637 N.E.2d at 130 (citation omitted).
B. Method of Analysis
With this standard in mind, the parties dispute the method of evaluating the
reasonableness of the verdict. Kroger contends that a comparability analysis is appropriate
whereby we would compare this verdict to similar cases in Indiana and across
the country, particularly those that are similar with respect to pain and suffering
and loss of consortium. Kroger cites both Indiana cases considering punitive damage
awards and Seventh Circuit cases to support its position that the comparability approach
should be applied in this case. Stanton counters that Indiana does not
use the comparability method when evaluating compensatory damages and that each verdict must
be evaluated individually based on the evidence in that particular case.
In examining the question of the proper method of analysis, we have reviewed
the role of the jury in awarding compensatory damages. The relationship between
judge and jury with respect to compensation is clear. The Seventh Amendment
generally requires that the jury determine compensatory damages. Supreme Court doctrine, historical
practices prior to the adoption of the Seventh Amendment, and functional considerations all
indicate that determination of compensation lies at the heart of the jurys constitutional
province. See Colleen P. Murphy, Determining Compensation: The Tension Between Legislative Power
and Jury Authority, 74 Tex. L. Rev. 345 (1995). Moreover, once
the jury makes a decision about compensation, the Seventh Amendment constrains the ability
of the judge to alter the award.
The role of the jury in awarding compensatory damages is clear. However,
numerous practical problems arise when a jury is actually faced with calculating and
awarding damages, particularly in areas where the damages are not easily quantified.
Damages for pain and suffering are one such problematic component of compensatory damages.
The process by which pain and suffering damages are awarded in the
United States has been aptly called procedurally simple but analytically impenetrable. David
W. Leebron, Final Moments: Damages for Pain and Suffering Prior to Death, 64
N.Y.U. L. Rev. 256, 265 (1989). One author described the problem
An inescapable reality of the pain and suffering conundrum is that tort law
requires the monetization of a product for which there is no market and,
therefore, no market price. This largely explains the lamented fact that the
jurors who must undertake the monetization are given no absolute standard by which
to do it. There is none to give them. Each juror
must create or bring their own standard to the courtroom.
Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 Hofstra L.
Rev. 763, 765 (1995).
Despite the difficulties these issues pose, Indiana courts have found that awards for
pain, suffering, fright, humiliation, and mental anguish are particularly within the province of
the jury because they involve the weighing of evidence and credibility of witnesses.
See, e.g., Landis, 664 N.E.2d at 757. Physical and mental pain
are, by their very nature, not readily susceptible to quantification, and, therefore, the
jury is given very wide latitude in determining these kinds of damages.
Id. (quoting Groves v. First Natl Bank of Valparaiso, 518 N.E.2d 819, 831
(Ind. Ct. App. 1988), trans. denied). Damages for pain and suffering are
of necessity a jury question that may not be reduced to fixed rules
and mathematical precision. Dee, 636 N.E.2d at 178. Where the damages
cannot be calculated with mathematical certainty, the jury has liberal discretion in assessing
damages. Id. Our inability to look into the minds of jurors
and determine how they computed an award is, to a large extent, the
reason behind the rule that a verdict will be upheld if the award
falls within the bounds of the evidence.
Griffin v. Acker, 659 N.E.2d
659, 664 (Ind. Ct. App. 1995), trans. denied.
These principles, while easily stated, are not easily applied. The appropriate degree
of oversight by a court into the decision-making process of the jury, especially
in an area such as pain and suffering, is not an easy thing
to determine. Affording a jury the discretion it is due while at
the same time making sure the verdict is within the bounds of the
evidence can sometimes be a difficult balance to strike. Kroger urges us
to apply a comparability analysis to this verdict to assist in this process.
In essence, Kroger maintains that because the verdict in this case is
considerably larger than those in purportedly similar cases, it could not be found
to be reasonably within the bounds of the evidence.
Our review of Indiana case law leads us to conclude that Indiana has
not heretofore adopted the comparability analysis for evaluating compensatory damage awards. One
Indiana case mentioned other verdicts in evaluating the propriety of a compensatory damage
award. See Groves, 518 N.E.2d at 819. That case was a
quiet title action in which an award of $100,000 was found to be
excessive on the basis of an absence of evidence of any physical or
psychological manifestation of mental anguish. In reaching that conclusion, the court considered
a Seventh Circuit case, a Northern District of Indiana case, and a Louisiana
appellate case for purposes of determining the extent of evidence required to support
mental anguish damages. As such, the Groves court looked to other cases
for guidance in evaluating a particular type of damages, those being for mental
anguish in the absence of any physical manifestation of the anguish.
The vast majority of Indiana cases simply consider whether the verdict was reasonable
in light of the evidence presented at trial. Indeed, some cases have
specifically stated that each case should be considered on its own evidence.
For example, this court has stated that [e]ach case will stand and fall
on its own merit when an award is challenged as excessive, and an
award will not be disturbed unless it is manifestly excessive.
Gas & Elec. Co. v. Scoles, 435 N.E.2d 287, 294 (Ind. Ct. App.
1982); see also Levin v. Shuckman, 150 Ind.App. 254, 276 N.E.2d 208 (1971).
In addition, in State v. Thompson, 179 Ind.App. 227, 385 N.E.2d 198 (1979),
the States contention that the damages were excessive and that the jury was
motivated by prejudice, passion, partiality, or corruption was based in part on the
premise that it was the largest personal injury verdict entered to date in
Indiana. In rejecting the States argument, this court explained the correct way to
determine whether a verdict is excessive was by first reconsidering the evidence introduced
at trial. Id. at 251, 385 N.E.2d at 214. The court
included a passage from State v. Daley, 153 Ind.App. 330, 287 N.E.2d 552,
556 (1972) (quoting Kavanagh v. Butorac, 140 Ind.App. 139, 221 N.E.2d 824 (1966)),
For a formula then, our common law sets only the general guidelines for
compensating the victim, each in its own way to be considered by the
trier of facts and weighed to determine what the total compensation will be.
Because of the personal nature of each case and since the decision
is unique to the particular set of facts our courts have said the
trier of facts is to be given sound discretion, and liberal discretion where
damages cannot be defined and calculated with mathematical certainty or by any exact
Id. at 251, 385 N.E.2d at 214.
Furthermore, in Kavanagh, we stated:
By nature, injuries personal to the individual are incapable of a more definite
rule for measurement of damages. Each action is unique and it must
be so treated and determined on the facts peculiar to that matter.
Because our law seeks to individualize the solution to the problem of properly
compensating the victim of torts, no overall expedient applies in every case.
Kavanagh, 140 Ind.App. at 145, 221 N.E.2d at 828. We noted that
the appellant had documented numerous cases to show that the judgment in question
far exceeded what had been allowed in Indiana and elsewhere for what it
contended were comparable injuries. Yet, we concluded that [w]e are not able
to say the loss of an eye in one case is worth the
same or just about the same in another case. If such a
system is to be desired (and we express no sentiment for such idea)
it must come from legislation. Our common law requires each case to
rest finally on its own merits. Id. In reaching that
conclusion, we called attention to language of the Supreme Court of Louisiana:
[C]ases relied upon may be similar in that each of them involves a
similar injury such as a broken arm, the loss of an eye or
eyes, or the loss of some member of the body. Thereafter, however,
the similarity ceases for each case is different, and the adequacy or inadequacy
of the award should be determined by the facts and circumstances peculiar to
the case under consideration. The primary purpose of the judge or the
jury in fixing the award in a personal injury case is to adequately
compensate the injured person for his injury under the facts shown to exist
in his case.
Id. at 146, 221 N.E.2d at 828 (quoting Gaspard v. LeMaire, 245 La.
239, 158 So.2d 149, 158 (1963)). After commenting that the determination of
the amount was not our decision, we cited long-standing Indiana Supreme Court precedent
stating, [t]hat the jury assessed higher damages than we would have done, is
no reason why we should set aside the verdict. Id. at 146,
221 N.E.2d at 829 (quoting Chenowith v. Hicks, 5 Ind. 224, 226 (1854)).
Our supreme court recently confirmed the principle that the jury has broad discretion
in determining damage awards. Sears Roebuck, 2001 WL 51680, at *7.
The court noted that damages are particularly a jury determination and that appellate
courts will not substitute their idea of a proper damage award for that
of the jury. Id. The court reiterated:
Our inability to actually look into the minds of the jurors is, to
a large extent, the reason behind the rule that we will not reverse
if the award falls within the bounds of the evidence. We cannot
invade the province of the jury to decide the facts and cannot reverse
unless the verdict is clearly erroneous.
Id. (quoting Annee v. State, 256 Ind. 686, 271 N.E.2d 711, 713 (1971)).
It is clear that Indiana courts have not previously adopted a comparability analysis
for evaluating compensatory damage claims. More importantly, they have historically expressed disfavor
in evaluating cases other than on their own merits. That being said,
however, the obvious concern raised on the face of this verdict is the
great disparity between it and other compensatory damage awards in Indiana cases.
We recognize that variability among awards is a problem primarily because it undermines
the legal systems claim that like cases will be treated alike; the promise
of equal justice under law is an important justification for our legal system.
Criticisms of variability include the contention that it makes it harder to
predict verdicts and, in turn, to settle cases, thereby adding unnecessary transaction costs
to the tort system and delaying payment to plaintiffs. See David Baldus
et al., Improving Judicial Oversight of Jury Damages Assessments: A Proposal for the
Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Damages, 80 Iowa
L. Rev. 1109 (1995); Judyth W. Pendell, Enhancing Juror Effectiveness: An Insurers Perspective,
52 Law & Contemp. Probs. 311 (1989). Furthermore, we acknowledge that inadequate
notice of the limits of potential liability may impair planning for risk management,
resulting in the overinvestment in liability avoidance, suppression of innovation, and higher insurance
A certain level of inconsistency, however, is inherent in the jury system and
is unlikely to be eliminated because the discretion exercised by juries supports
basic democratic values recognized in the Seventh Amendment right to a jury trial
and similar provisions in most state constitutions. See Baldus, 80 Iowa L.
Rev. at 1118. As that article points out, moral diversity has been
preferred to uniform outcomes imposed by rulemaking elites and some inconsistent awards may
result not from the role of the jury, but rather may simply reflect
superior lawyering purchased in a free market, or the luck of the draw
that is inherent in all social institutions. Id.
As one author observed, there is . . . no standard man, no
reasonable man afoot in the law of damages. Kalven, The Jury, the
Law, and the Personal Injury Damage Award, 19 Ohio St. L.J. 158, 160
(1958). It may be extremely difficult to determine an adequate and appropriate
amount of money to compensate an injured person for feelings of pain and
suffering, or for lost biological functioning, professional standing, or business opportunity. Identical
injuries may have radically different effects on different plaintiffs. Because we lack
the ability to attach price tags to given functions and talents, the translation
of social wrongs into dollars and cents is problematic at best.
If a comparability analysis is applied to reduce awards exceeding the range of
purportedly similar cases, the effects are far-reaching. Because a comparability analysis effectively
places a cap on the jurys award regardless of the evidence, it can
be considered to be second-guessing jury decisions in a manner not permitted by
the Seventh Amendment. Without express statutory authority, no decisionmaker should have the
power to alter a jurys award without regard for the evidence. If
a jurys award can be subject to being set aside for exceeding an
applicable range, the charge of the jury to fully compensate the plaintiff would
no longer be paramount. The jurys decision on the amount of compensation
would be replaced with a figure within the comparable range. Although the
jury would still find facts and calculate an amount that would compensate the
plaintiff, it is disingenuous to claim that restricting the award after the fact
by comparing it to other cases would not change the functioning of the
jury by effectively rendering it less of a final decisionmaker and more of
an advisory jury. The comparability analysis renders illusory the jurys discretion to
compensate a victim.
This kind of encroachment on the traditional exercise of jury discretion is of
particular concern when an appellate court, which has not heard the evidence in
the case, conducts a de novo review that gives little or no deference
to the ruling of the trial court or the verdict of the jury.
Given the uncertainty that accompanies the assessment of compensatory damages not fixed
by legal rule, an outright adjustment of the jurys award by the judge
would simply be a substitution of the judges opinion for that of the
jury. The right to jury determination of compensatory damages would become a
hollow guarantee. This concern is perhaps most salient in the context of
judicial review of jury awards for noneconomic damages because a jury, applying a
subjective standard of measurement, conceivably has a better sense than a judge in
determining an appropriate amount of compensation. A judges review of a jury
award would diminish the significance of the facts of the case that underlay
Furthermore, because all cases are unique, the search for comparable or similar
cases is inherently flawed. The nature and extent of pain and suffering
are seldom, if ever, alike in any two cases. These differences in
the details of the harms and the circumstances of plaintiffs inevitably make a
comparison of the verdicts difficult if not impossible. The inherently subjective basis
of awards for pain and suffering confounds the measurement and quantification required for
an accurate comparison. There simply are no standards by which to measure
the effects of injuries or to convert them into dollar amounts. Similarly,
the data currently available to many courts is inadequate to support a viable
system of comparative review. Another problem is that the reported decisions used
as comparison cases are likely unrepresentative of all damages awards approved by courts
or agreed to by parties in comparable cases. The reported facts in
these cases bearing on the level of nonpecuniary harm are often sparse or
nonexistent. The comparison of cases can be easily manipulated, particularly when the
factual bases for the awards in those cases are frequently not reported in
See footnote Each case is normally evaluated in terms of only a
limited number of characteristics. Because of the uncertainty and variability associated with
pain, suffering, and loss of enjoyment of life, comparing cases on that basis
may have even less validity than comparing for other types of damages.
We recognize that there is a public policy concern with respect to seemingly
excessive jury verdictsSee footnote and believe that verdicts not supported by the evidence must
be set aside or reduced as violative of the law. In so
doing, some type of comparative analysis may, under certain circumstances, be necessary to
evaluate particular types of damages or to determine whether the size of a
particular verdict indicates jury passion or prejudice. Although it may be tempting
to engage in such a comparative analysis to aid us in the difficult
task of evaluating such a large award as is at issue in this
case, to do so would be a significant departure from Indianas historical regard
of the uniqueness of every tort claim and the belief that compensatory damage
assessments should be individualized and within the discretion of the factfinder. After
reviewing all of the testimony and evidence presented to the jury, it is
clear to us that such a departure is not necessary here.
C. Evidence in this Case
The record is replete with evidence that Stanton was an active person before
the accident, heavily involved in his community and outdoor sports. He was
at various times a dog catcher and part-time police officer. He coached
Little League and was very active in the local Mens Club. He
coached for one of his daughters softball teams every year, including traveling teams
and All Stars. He took care of the ball diamonds for the
Stanton remembers being hit by the tractor:
Well, on the original hit, I felt my pelvis break. I say
my pelvis; I really dont know what bones it was. And then
it was like a pause and it started back again. And I
could feel it crunching, and then there was another pause, and it started
back again. I could feel my ribs start breaking. . . .
I felt it hit me, and then I felt the bones start breaking.
Record p. 3616. An eyewitness described it this way:
When I saw him go up underneath the trailer, I just knew he
was cut half in two. I didnt think hed ever live over
this ordeal. And then when [Ritter] pushed him up underneath there,
[Ritter] had to see because he snatched him right back out from underneath
* * * * *
[Ritter] put it in forward gear and jerked him back out from underneath
Record p. 2715.
The initial assessment of Stanton in the emergency room revealed that he suffered
an open book pelvic fracture with vertical shearing, hemorrhagic shock, fractured ribs, hemopneumothorax
(blood in his chest), internal bleeding from the pelvic fracture, and a lung
contusion. He was later diagnosed with a large scrotal hematoma, swelling of
the testicles, swelling of the penis with infection, and necrosis secondary to demodialysis.
He developed a foot drop and a fungal infection in the area
of the injury. He developed effusion (fluid on the lungs), which caused
respiratory distress syndrome and required treatment with a ventilator. He developed several
Anna, one of the Stantons daughters, testified that Alfie cried the whole way
to Indianapolis from Illinois when they found out about the accident. She
described her mother as being in shock and devastated, rushing back and forth,
saying we had to go get daddy. Record p. 3087. Alfie
testified that on the day of the accident, They told us that there
was no hope for him, and it would be amazing if he made
it through the night. Record p. 3452. Another one of the
Stantons daughters, Lynn, remembered the doctors prognosis:
They the doctors flat said he wont make it most likely through
the night. He said it will be minute by minute. You
need to stay here throughout the night, because at any time he will
go. We dont expect his chances he doesnt really have any
chances, is what they pretty much said.
Record p. 3108. Lynn stated that when she first saw her
[I]t didnt look like him. He was about three times as big
as he normally was. And the doctors told us, you wont recognize
him, and we thought, yeah, well recognize him. Its your dad, you
know. But he was really swollen. They said that was from
all the blood.
Record p. 3108. Their other daughter, Christy, testified that he just
looked horrible. I just, you know, started crying. And then my
mom, you know, she was freaking out. She was, you know, patting
his head, Jerry, I love you, you know, youre going to be okay,
you know. Record p. 3027.
It was approximately a month before he was stable. The record contains
evidence that Stanton had to be resuscitated numerous times. In fact, the
hospital staff kept a crash cart right outside his hospital room for several
days. Lynn remembered one life-threatening event:
One of his surgeries actually he had had a 14-hour surgery, and
they were taking him up in the elevator, and they had actually got
him stuck in the elevator and he had collapsed.
And I was watching the nurse literally get on top of my dad
in the elevator, because the doors were pried open, and he was half
stuck in and half stuck out, and was on top of him trying
to revive him. He had actually died in the elevator.
* * * * *
Record p. 3110.
Stanton was kept in an induced coma for considerable period of time.
Alfie testified that when he woke up, he couldnt talk. That was
painful, because he wanted to communicate with us, but he couldnt because he
had the trach in or the tube in his throat. And you
could tell by just looking at him that he was so scared.
Record p. 3501.
Dr. Thomas Ambrose, one of the orthopedic surgeons who treated Stanton, summarized Stantons
pelvic injuries as follows:
Mr. Stanton sustained a crushing injury to the pelvis. This is a
compression of the pelvic bone itself with multiple fractures through both iliac wings.
The iliac wings are the bone that support the hip joint.
In fact, the sockets of the hip joint were on both sides fragmented
into multiple pieces.
Record p. 2962. He further described the injury:
In these types of fracture patterns and this severity of fracture, the chances
of mortality or death from this type of injury is about 50 percent.
The fact that he survived was probably he was on the
window of being crushed to death, and the fracture patterns were some of
the most severe that I have seen in ten years of practice.
Record p. 2965. In addition to the fractures, Stanton suffered massive soft
tissue injuries, which Dr. Ambrose described as massive crushing of both the muscles
around the bone, as well as avulsion or pulling away of the skin
from the underlying deep fascia or covering of the muscles. This was,
indeed, a significant factor in his overall injury index. Record p. 2966.
Stanton also sustained traumatic injury to the nerves in the pelvic region
and blood vessels in that area.
Initially, a ten-hour surgery was performed. During that surgery, the doctors were
successful in putting the pieces back together of portions of the left pelvic
bones in a near anatomic position using plates and screws. Record p.
2969. Before they were able to conduct another surgery to repair the
right side, however, Stanton developed an infection. Because of the tremendous amount
of muscle damage at the time of the injury, countless surgeries were subsequently
necessary not only to clear infection but also to remove dead muscle,
dead skin, and dead subcutaneous fat, as well as dead bone fragments that
were involved in the infection. Record pp. 2971, 2979. The massive
infection Stanton suffered was life-threatening and caused systemic toxic shock, which resulted in
complications with various organs and caused renal failure.
Dr. Ambrose explained that the injury to the hip socket is one of
the most severe injuries that a human can sustain. Record p.
2983. He explained that the possibility of developing posttraumatic arthritis was substantial
with a reconstruction of the hip joint, but virtually all patients who suffer
displacement of the socket and have no surgery will suffer from the arthritis.
He testified that although one of the goals of surgery is to
repair the bone so the patient would have future use of it, another
is to reduce the risks of arthritis. He explained that because of
the massive infection, Stantons prognosis with respect to future functional capability was not
As a result, the chances of going on to resume virtually normal function
were diminished practically to zero. The patient lost a tremendous amount of
muscle around the hip joint, so he wouldnt have a normal gait pattern.
He also lost a fair amount of bone . . . .
He was not a candidate for a hip replacement, in my opinion, because
of the involvement of the bone around the hip socket with infection.
We already discussed the fact that you can never be completely sure of
clearing a bone infection; and that another surgical insult to that bone may
Record p. 2985. Explaining his ability to testify about Stanton without
referring to his notes, Dr. Ambrose stated:
Everyone every surgeon in their career has several patients that they
that are standouts, if you will, that you remember for your entire career
and into retirement.
And there are about half a dozen, all of them having severe crushing-type
injuries to the pelvis, that are readily recalled. And Mr. Stanton is
one of those. Again, the magnitude of the injury was so severe,
and his complications were so severe, and we cared for him on a
very intensive basis over a period of several months. Youre absolutely right;
I can recall this patient as if several of these episodes were just
a few weeks ago.
Record p. 3002.
As a result of the infection and the countless surgeries to remove dead
tissue and bone, Stanton developed a very large open wound near one of
his hips. The wound was open to the bone and required dressing
changes several times a day to remove the drainage caused by the infection.
Several witnesses testified that Alfie changed Stantons dressings for the wound.
Alfie testified that it hurt her to cause her husband pain when she
changed his dressings. She stated that she generally changed the dressings once
a day, but [i]f it was real mucky, smelly, I might have to
do it twice a day or three times a day. Record p.
Several people testified that the dressing changing was a tedious and painful process,
complicated by the foul odor and debris coming from the wound. Anna
stated, they would use three packages of the coverall and a Q-tip, and
they would just have to fill the hole in. And when you
pulled it out, it would be bloody and it was infected, so it
was a yellow. And the smell was just hard to describe.
Record p. 3091. Christy described it as nasty. There was just,
you know, stuff coming out of it, a foul odor, and, I mean,
[Alfie] wouldnt think twice but to take care of him. Record p.
One of Stantons nurses was an expert in wound care at the Rehabilitation
Hospital. She stated that it was for me the worst wound I
had ever seen. Record p. 3228. She described how painful
the dressing changes were for Stanton because he could feel them and explained
that they dressed the smaller pressure sores before treating the large wound:
As you came back up his body and to the left side.
We turned him over on the right side now, the whole dressing
change was very painful, and we gave him medicine through his IV at
that time. Yes, I believe it was through his IV, because any
changes in positioning were very uncomfortable.
We turned him to his right side to get access to the left,
and with that you also noticed that there is multiple skin areas and
grafts along his flank in front.
As we pulled the dressing off, there was another nurse in there with
me, and I dont it was very foul smelling. And you
tried to keep your dignity when youre with a patient and not get
sick or anything like that, but I know that just the smell of
the drainage was pretty potent.
And we pulled the dressing off, and we were gowned and gloved, and
just kept pulling and pulling and pulling dressing out. And you just
it had pieces of flesh on it, as well as red and
yellow drainage coming out of this wound.
And part of the assessment, when you bring a patient in, is to
measure their wound. And his was so deep, I could almost put
my fist right into the area of the wound and reach around.
And when I did, I did touch bone. And that was something
that was not a very good experience for me or him, Im sure.
. . .
* * * * *
. . . The pictures dont depict the depth of the wound, nor
the drainage or odor that did occur with the wound either.
Record pp. 3226-27. She further testified that the antibiotics he was taking
caused Stanton to have diarrhea several times a day, which aggravated their attempts
to keep the wound clean because he could not use a bedpan.
In addition to the injuries Stanton suffered to his pelvic region, he also
lost vision in one of his eyes as a result of the trauma.
With this condition, the eye typically becomes unsightly and painful as it
begins to deteriorate, so Stanton may need surgery to remove the eye in
the future. Because only one eye remains, the risk of total blindness
is higher for him if something happens to his good eye.
The Stantons daughters, as well as the doctors, testified that Alfie rarely left
Stantons side during his entire seven-month hospital stay. She slept on an
air mattress in the intensive care unit and later slept in a chair.
She left only to bring food from the cafeteria and to shower.
Lynn remembered her mother saying, [A]s long as hes here, Im
here. Record p. 3110. Their daughters stayed for extended periods too,
particularly Christy, who stayed for approximately two months at the hospital away from
her family. Anna, whose son was eight years old at the time of
trial, stated that she took a thirty-day leave of absence from her job
immediately following the accident and that later she worked four ten-hour days per
week in Illinois so she could spend three days in Indianapolis to assist
her parents while Stanton remained in the hospital.
At one point during his recovery, Stanton had breathing and feeding tubes.
He was receiving daily dialysis because his kidneys had failed. When medical
personnel had to reinsert the breathing tube because he needed surgery, Lynn stated,
he didnt want it. He fought it, you know. He would
squeeze our hand and shake his head no. And he knew that,
you know, they were going to do it, but he didnt want it.
Record p. 3113.
It took four to six weeks of physical therapy for Stanton to be
able to go from a lying position to a sitting position because he
had a difficult time tolerating it. Record p. 3321.
Alfie testified that Stanton was a modest person and that she bathed him
so the nurses would not have to. She stated that the helplessness
of his condition bothered him [b]ecause he was a proud man. He
wasnt letting, you know, somebody else take care of him. He always
was the one who took care of everybody else, and he wasnt able
to do that. Record p. 3453.
Before leaving the intensive care unit of the hospital, Stanton vowed he would
return one year later and walk onto the ward. Anna described the
one-year anniversary this way:
There was a set of double doors at the front of the entrance,
and he wheeled up to the doors. And he was probably eight
steps from the nurses desk, and he walked in. And they all
gathered around him, and they all clapped because they didnt believe that he
would actually walk back there.
Record p. 3093. Although he was able to walk short distances with
a walker at one point, it became too painful for him to do
so after another bone infection and a series of surgeries in 1997.
At that time, the top portion of the femur (the ball) and other
bone from his hip was removed. As a result, one of his
legs is several inches shorter than the other one. One doctor described
walking after that surgery as having two rough bones rub against each other
because of the absence of ligament to cushion the bones.
In addition to the surgeries Stanton underwent on his hips, he also had
surgery for a penile implant. The injuries he sustained in the crash
prevented him from functioning normally, and the doctors believed an implant would enable
him to engage in sexual relations again with Alfie. Despite his increased
risk of infection due to the complications he suffered from his other surgeries,
Stanton elected to proceed with the implant. In all likelihood, Stanton will
need to undergo additional surgery to replace the implant several years from now.
Alfie testified that she and Stanton had a very sexual relationship before
the accident. She testified that their physical relationship was important to both
of them. She stated that unfortunately, although Stanton had a penile implant
inserted, they have been unable to successfully have intercourse because they have not
been able to find a position that is comfortable for Stanton.
Stanton rarely leaves his home. The evidence was clear that he suffers
tremendous pain if he sits more than two hours at a time or
if he overexerts himself. He explained his neck pain as follows:
Thats where I had one of those big bed sores, and all the
meat was gone down to the bone just about. And what I
would say it is, is the muscles are detached there, and they will
kink up and just cause like a charley horse in the side of
Record p. 3670. If there is dampness in the air, he is
in constant pain. In addition, he is not able to maneuver his
large wheelchair into many locations, including several rooms of his house, his neighbors
houses, and even the bedroom of the hotel he stayed at during the
trial. He is sometimes required to use freight elevators when he is
out in public places.
The vocational rehabilitation counselor testified that after her evaluation and testing of Stanton,
she concluded he is not suitable for employment because of the totality of
the situation . . . Its being in a wheelchair, no sight of
the right eye, not being able to stand, not being able to sit
for long periods of time, limitations that exceed any requirements of elemental jobs.
Record p. 3269.
Stanton has a life expectancy of 25.4 years. Record p. 3677.
When asked what his expectations are and what he wanted to do in
the future, Stanton responded: Id like to be able to get my life
back together where I got my own choices, where I could, you know,
make my life count, have an impact on my family, the community.
Record p. 3633. In responding to the question of what the worst
thing was about his ordeal, Stanton stated, Watching what its done to my
wife. Record p. 3633.
One of Stantons friends summarized his future this way:
I think, and Ill say this since he isnt here, his toughest days
are coming. Hes got little grandchildren thats going to grow up, and
its going to be very hard for him not to be able to
do the things that he has done with his children. I can
just I think hes going to have a very difficult time on
Record p. 3306. Christy testified that her father lives day to
day because of the pain and that he doesnt know you cant
make plans with him because he doesnt know if hes going to be
able to get up that day. There is days where hes just
hurting really bad, and he cant get up at all. Record p.
The devastating infection Stanton suffered was osteomyelitis, a bone infection,
which is nearly impossible to treat completely and continues to be harbored in
the bone for years, if not the remainder of the patients life.
There always remains a risk that the infection could be rekindled at some
point in the future, particularly with surgery.
Alfie stated that in spite of everything he has been through, her husband
is still pleasant to be around. She stated, I mean my husband
hasnt changed in that, because like I said, hes got his family.
Hes got me, you know. Hes got friends, you know. He
doesnt hes really still the same person except for hes in the
chair and hes blind, you know. Record p. 3492. However, one
of the Stantons neighbors described how, in his view, Stanton has changed as
a result of the accident:
Well, he feels that he has lost the ability to take care and
to protect his family, and that was always a very big issue with
Jerry. And hes very limited in what he can do. And
I think that bothers him because he was an independent person and did
things for himself.
And an active person. I know he misses his hunting and his
fishing. I mean, what do you want to say? Hes changed.
Record pp. 3012-13.
D. Constitutional Implications
Before the accident Alfie and Stanton purchased a motor home and planned to
travel upon Stantons retirement, which they had anticipated in January 1999. At
the time of trial, the motor home was parked in the backyard at
one of their daughters houses. Annie testified that her sons father is
not involved in his life and that Stanton was disappointed that he could
no longer do the things that a father would for the child, including
helping with Cub Scouts, fishing, and playing ball.
During his overall stay in the hospital, he received approximately 150 units
of blood, which represents his total blood volume many times over. He
underwent more than fifty surgeries and multiple episodes of resuscitation. He spent
almost 300 days in hospitals.
In addition to the detailed, emotional testimony, Stanton offered pictures and videotapes into
evidence. The pictures demonstrated several things, including Alfie helping him up, the
rooms of their house, and Stantons inability get into several primary rooms in
their house. The pictures also documented the progress of his open wound
and depicted it and the other scars in graphic detail.
It is clear from the amount of the verdict that the extensive testimony
and evidence had a profound effect on the jury. We conclude that
it adequately supports the amount of damages awarded.
See footnote In so doing, we
reject Krogers claims that comments by Stantons attorney during closing arguments attempted to
engender ill-will and a desire in the jury to punish Kroger despite the
fact that Stanton had dismissed his punitive damages claim. Appellants Brief p.
27. Among the statements alleged to have been intended to inflame passion
against Kroger were comments relating to Krogers being the reason the case was
at trial, to the jurys being the only thing that could stop Kroger
from running over Stanton a second time, to Krogers wanting to leave Stanton
on his own with no remedy, and to Stantons forgiveness toward Ritter for
his terrible mistake. Record p. 3984. Kroger claims there is no
question that the closing argument was a direct invitation to the jury to
ignore the law and punish Kroger or to make an award based largely
on sympathy. Appellants Brief p. 28.
The first problem with this argument is Krogers failure to object to any
of the statements during trial. Indiana law is clear that to preserve
statements of counsel for appellate review, the opposing party must promptly interpose and
state its objection to the language or argument and request the court to
so instruct the jury as to counteract any harmful effect of such language
or argument, and if granted and such instructions were not sufficient to cure
the error, follow such action by motion to have the submission set aside.
Dayton Walther Corp. v. Caldwell, 273 Ind. 191, 402 N.E.2d 1252 (1980)
(finding the issue waived and quoting Gamble v. Lewis, 227 Ind. 455, 85
N.E.2d 629, 635 (1949) as stating, [w]e cannot permit litigants to gamble on
the possibility of a favorable verdict, and, after an adverse verdict has been
returned, set it aside on appeal when the losing parties failed to move
that the submission be set aside when the alleged error occurred.). If
the statements were as objectionable as Kroger now claims, then certainly it had
an obligation to object and request an admonishment during trial.
The second problem with Krogers claim is that there is no way to
determine whether these statements alone formed the basis of the verdict against Kroger.
This court will reverse a judgment due to improper argument of counsel
only where it appears from the entire record that the remarks from counsel
were in all probability, the basis for securing an incorrect verdict. Chaiken
v. Eldon Emmor & Co., 597 N.E.2d 337, 345 (Ind. Ct. App. 1992),
trans. denied. The record contains extensive evidence, including graphic photographs, of Stantons
massive, permanent injuries that have prevented any sort of normal life for him
and his family and cause him constant pain. In addition, Kroger defended
itself at trial on the basis that Stanton was totally at fault for
the accident. In fact, Krogers expert insisted that Ritter was not at
all responsible for the accident and even agreed with Stantons counsels characterization of
Ritter as being innocent as a newborn babe that wasnt even on the
scene. Record p. 3870. In light of the testimony of Krogers
own supervisor, whose investigation of the accident resulted in the conclusion that Ritter
was at fault for the accident and that Stanton was partially at fault,
Krogers continued insistence that Ritter bore no responsibility for the accident could have
made a particularly strong impression on the jury. It is not feasible
in a case such as this to decide with certainty that the statements
during closing arguments formed the basis for an incorrect verdict. This is
particularly true in light of the jurys critical evaluation of the evidence resulting
in a finding that Stanton was 20% at fault for the accident.
If the jury had done as Kroger claims and acted purely to punish
Kroger with no regard for the evidence, it would not have sifted through
the expert and lay testimony to come to the conclusion that Stanton bore
a quantifiable amount of responsibility for the accident. The reduction in the
verdict to reflect Stantons comparative fault indicates to us that the jury exercised
its discretion to evaluate and weigh the evidence to reach a conclusion regarding
damages. This process is precisely the function that is within the heart
of the jurys constitutional province.
The jurys damage award will not be deemed the result of improper considerations
if the size of the award can be explained on any reasonable ground.
Dee, 636 N.E.2d at 178. The record is replete with evidence
of devastating injuries, permanent disabilities, continuing pain and suffering, and loss of consortium.
We see no indication that the jury acted out of prejudice, passion,
or partiality. Therefore, to warrant reversal, the award must appear to be
so outrageous as to impress the Court at first blush with its enormity.
Kimberlin, 637 N.E.2d at 129 (quoting New York Central Railroad Co. v.
Johnson, 234 Ind. 457, 127 N.E.2d 603 (1955)). Although the amount of
the award in this case is sizeable, we cannot conclude that it is
outrageous given the evidence.
Kroger makes a brief attempt to argue that the size of the award
violates due process and equal protection under the United States Constitution and due
course of law under the Indiana Constitution. Kroger contends that an unfettered
right to a jury trial in civil cases does not equate to the
unfettered right to award any amount of damages.
Krogers due process and due course of law challenges essentially amount to the
contention that because the award was grossly excessive, Kroger had no notice that
such an award of general damages was even remotely reasonable or possible.
Kroger claims existing case law provided notice to Kroger that a verdict improperly
focused on punishment would be remitted and that it had the right to
rely on existing case law which showed the highest comparable verdicts in the
range of $3-7.5 million. Appellants Brief pp. 42, 43.
Kroger cites no authority discussing the notice issue with respect to an award
of damages and provides no further argument developing the contention. Krogers argument
first presupposes that the verdict is excessive and beyond the scope of the
evidence. We have already concluded that the verdict is within the parameters
of the evidence. Second, Krogers argument that it had no notice a
verdict this high was possible assumes that the comparability analysis should be applied
in this case to compare it to other verdicts in cases with similar
injuries. We have already declined to apply a comparability analysis to this
case. Even if we had used such an analysis, however, Kroger was
not deprived of notice simply because this verdict was higher, even substantially higher,
than others like it because every case ultimately depends on the evidence presented
in that particular case. A verdict that is higher than others may
still be affirmed under a comparability analysis if it is deemed to be
reasonable and within the scope of the evidence. Indiana law is clear
that a tortfeasor will be liable for injuries caused by its wrongdoing to
the extent the damages awarded are within the scope of the evidence and
not motivated by passion, partiality, prejudice, corruption, or some other improper element.
As such, Kroger had ample notice that it could be liable for any
damages found not to be excessive for its wrongdoing.
Kroger also makes the broad allegation that an equal protection violation occurred because
the jury treated it differently than it would have treated an individual.
This argument fails. First, the verdict was entered against both Kroger and
Ritter. That fact hinders Krogers accusation that the jury acted more harshly
than it would have if Kroger were an individual. If there is
no disparate treatment, then there can be no basis for claiming discrimination.
See State v. Costas, 552 N.E.2d 459, 460 (Ind. 1990) (noting that the
denial of equal protection can take either of two forms: (1) the law
itself discriminates on its face against a protected class of persons, or (2)
the manner in which the law, which is otherwise constitutional, is administered by
state officials discriminates against a protected class of persons). Second, because we
conclude that the award is within the scope of the evidence, we see
no merit to Krogers constitutional claims.
The trial court did not abuse its discretion when it denied Krogers motion
to dismiss for lack of subject-matter jurisdiction. Given the circumstances in this
case, we find no basis for allowing an exception to the holding by
our supreme court in McQuade. The trial court was within its discretion
to conclude that the Stantons claims were not barred by the exclusivity provision
of the Act. Furthermore, we are unpersuaded that the jury verdict in
this case is great enough to be characterized as so excessive as to
indicate prejudice. We cannot say as a matter of law that the
suffering of Stanton and his wife is worth less than the jurys award,
and where there is credible evidence to sustain the jurys discretion, we will
not find that discretion abused.
BAILEY, J., and RILEY, J., concur.
Indiana Code Section 22-3-6-1(b) defines an employee under the Act as every
person, including a minor, in the service of another, under any contract of
hire or apprenticeship, written or implied, except one whose employment is both casual
and not in the usual course of the trade, business, occupation or profession
of the employer.
Similar policy concerns were raised by Judge Kirsch in his dissenting
opinion in Nowicki v. Cannon Steel Erection Co., 711 N.E.2d 536 (Ind. Ct.
App. 1999), trans. denied. In that case, the court affirmed the trial
courts findings that a crane operator was an employee of a construction company
and that his claim was therefore barred by the Acts exclusivity provision.
Id. at 544. Judge Kirsch detailed serious policy concerns implicated by the
conclusion that the workers claim was barred. He wrote in part:
[M]y dissent is based on public policy concerns and what I believe to
be a misapplication of such concerns by our courts. In its opinion,
the majority iterates the oft-repeated statement that public policy favors the inclusion of
employees within the scope of the Workers Compensation Act . . . The
purpose underlying this policy was to insure that workers injured in workplace accidents
in the course of their employment would receive the health and disability benefits
mandated by the act. The purpose was not to immunize third-party tort
feasors and their liability insurers from liability for negligence which results in serious
injuries to one who is not in their employ. And yet, that
is the result of the application of the foregoing policy to cases such
as the one now before us.
It is from the application of this policy that the burden shifted to
the injured employee to prove that the claim falls outside the coverage of
the act. . . .
* * * * *
If it is the public policy of this state to allow third-party tort
feasors and their liability insurers to use the Indiana Workers Compensation Act as
a shield by which to immunize themselves from liability for their wrongful acts
resulting in serious injuries to the employee of another, then it is a
policy which should be re-examined. I would not apply the policy in
this way . . . .
Id. at 544-45 (citations omitted).
It is to be expected that Kroger would control the traffic movement
on its property and the use of its facilities by its own employees,
as well as those of Gateway and other trucking companies. The mere
conformity with rules made for the general policing of the premises, when there
are a number of separate groups of workers on the premises, does not
mean that all of those workers are thus transformed into Kroger employees
Alternatively, Kroger contends that Stanton was employed by both Kroger
and Gateway and/or that Stanton was a borrowed servant. Typically, we analyze
dual employment by applying the seven factors reiterated in
Hale v. Kemp, 579
N.E.2d 63, 67 (Ind. 1991). However, we need not engage in such
an analysis in this case. The cases applying the seven factors generally
do not include those where the dual employment alleged is between a parent
corporation and its subsidiary. Because our supreme court in McQuade foreclosed the
ability of a parent corporation to pierce the corporate veil defensively as Kroger
is attempting to do here, it is dispositive on the question of subject-matter
jurisdiction in this case.
As a side note, Kroger does not contend that the jury
was improperly instructed. In fact, Kroger recognizes the jury was instructed it
could return a fair amount for pain and suffering and disability. Record
p. 1880. A jury is presumed to have followed the courts instructions.
Landis v. Landis, 664 N.E.2d 754, 758 (Ind. Ct. App. 1996).
For example, this court has stated:
We must confess we review the damages for emotional distress with some reluctance.
We were not, after all, present to review the demeanor of the
witnesses as they recounted the events which occurred here and the emotional trauma
which the events induced; we are confined to review of a record which,
no matter how accurate and detailed, can never convey the emotions and demeanor
of the witnesses. Still, it is our duty to insure that the
jury acted properly in assessing damages, and we may not shrink from this
Groves, 518 N.E.2d at 831.
This statement also holds true in at least one jurisdiction
where a comparability analysis has been used.
See Wheat v. United States,
860 F.2d 1256, 1259-60 (5th Cir. 1988) (stating that damage awards in analogous
cases provide an objective frame of reference, but they do not control our
assessment of individual circumstances).
This case perfectly illustrates our concern with comparing damage awards to other
cases. If this case were written in a manner similar to other
reported personal injury cases, it would likely merely contain a summary of Stantons
injuries, probably consisting of something to the effect that he suffered severe injuries
including a crushed pelvis, underwent multiple surgeries, and had several complications. The
opinion would indicate that he is permanently disabled and will continue to have
pain and complications from his condition. However, without a more thorough description
of the injuries, the complications, the effects of the medical problems on his
life, and the profound devastation the accident has caused him and his family,
which we undertake to provide later, it would be impossible for any other
case to be compared accurately to this one.
Footnote: Interestingly, a recently released U.S. Department of Justice survey basically nullifies
the long-espoused notion that lay people layer on unnecessary damages in civil litigation
cases. Denise G. Callahan,
Judges Just As Generous As Juries, Indiana Lawyer,
Jan. 17-30, 2001, at 1. The survey studied 45 of the countrys
largest counties, including Marion County, Indiana, and concluded that judges favored plaintiffs more
often than juries in tort cases and that the judges awarded slightly higher
damages than juries overall. Id. at 27.
With respect to Krogers challenge to the evidence presented for future
medical expenses, the jury completed a summary form, so there is no way
to know how much of the total award, if any, the jury allocated
for future medical expenses. However, we conclude that the evidence is sufficient
to support a significant award for future expenses based on the testimony regarding
the treatment he will likely face in the future for his hip, his
penile implant, his eye, and further complications caused by his bone infection.
On appeal, any uncertainty as to the exact amount of damages is resolved
against the wrongdoer. City of Fort Wayne v. Capehart-Farnsworth Corp., 127
Ind.App. 412, 424, 142 N.E.2d 442, 448 (1957) (citations omitted), recites the rule:
It was the tortious act of appellant which created this situation and all
doubts and uncertainties as to the proof of the exact measure of damages
must be resolved against it. . . . [A]ny other rule would
enable the wrongdoer to profit by his wrongdoing at the expense of his
victim . . . The most elementary conceptions of justice and public policy
require that the wrongdoer shall bear the risk of the uncertainty which his
own wrong has created. . . .