ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
CORNELIUS J. HARRINGTON NICK KATICH
Johnson & Bell Lucas, Holcomb & Medrea
Highland, Indiana Merrillville, Indiana
COURT OF APPEALS OF INDIANA
CONTROL TECHNIQUES, INC., )
a/k/a Warner Control Company and/or )
Warner Control Techniques, )
vs. ) No. 45A03-9905-CV-198
JOHN W. JOHNSON and LINDA JOHNSON, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Gerald N. Svetanoff, Judge
Cause No. 45D04-9203-CT-229
October 13, 2000
OPINION - FOR PUBLICATION
Control Techniques, Inc. (Control), defendant below, appeals the trial courts judgment in favor
of Plaintiff-Appellee John W. Johnson (Johnson), entered following a jury trial. We affirm.
Control presents four issues for our review, which we restate as:
Whether the trial court properly denied Controls motions for judgment on the evidence;
Whether the trial court abused its discretion by rejecting Controls proffered jury instruction
on intervening causes;
Whether the trial court appropriately instructed jurors to disregard certain remarks made by
Controls counsel during closing arguments; and
Whether the jurys verdict was excessive.
Facts and Procedural History
On December 14, 1991, Johnson was injured when he came into contact with
electricity while measuring the voltage entering a circuit breaker at the LTV Steel
(LTV) plant in East Chicago, Indiana. Johnson was working for LTV as
an electrician at the time of the accident. The circuit breaker was
part of a motor control system designed and built by Control and sold
by Control to LTV in connection with LTVs renovation of its facility.
The circuit breakers arrived at the LTV facility with three uninsulated aluminum bars
protruding from the top of each breaker. (R. 1863.) Control installed
the bars to provide a point at which electrical power could be connected
to the circuit breakers.
LTV hired Meca Engineering Corp. of America (Meca) to manage the work done
by the various contractors hired to upgrade the LTV facility, including Meade Electric
(Meade), an electrical contractor retained to install the motor control equipment and the
circuit breakers. Meades duties included connecting the circuit breakers to an electrical
power supply. Meades general foreman on the project, Robert Roach (Roach), had
never seen circuit breakers with an electrical power connection configuration involving protruding exposed
aluminum bars in his 18 years as a journeyman electrician. Roach asked Mecas
project representative Dan Ziegler (Ziegler) how Meade should connect electrical power to the
breaker. Ziegler told Roach that connection of power to the breakers was
Meades responsibility, and suggested that Meade would have to drill holes in the
bars so that wire-securing lugs could be attached to the bars.
Meade removed the aluminum bars, drilled holes for the lugs, and reattached the
bars. Meade then ran electrical wires down from above the circuit breakers
to the bars, and attached the exposed metal ends of the wires to
the bars by crimping the wire between the bars and lugs and tightening
the lugs onto the bars with nuts and bolts. The bars were
less than one-half inch apart. The lugs Meade used were wider than
the bars themselves, and further reduced the space between the bars. The
bars and lugs, which extended from the tops of the breakers, were not
insulated. When the power was connected to the circuit breakers, the uninsulated
bars and lugs presented an exposed source of electricity, even when the circuit
breakers themselves were off.
Shortly before the accident, Johnson was advised about a malfunction with the motor
control system. He went to the electrical control room, where he discovered
that one of the circuit breakers had tripped, and proceeded to test the
voltage on the breaker with a standard two-pronged voltage tester. After
Johnson placed the testers prongs on two lug and bar pieces, electricity arced
toward him, seriously burning his arms and face. Johnson pursued a workers
compensation claim against his employer, LTV, and sued Control, Meade, and Meca,
See footnote claiming
that the accident was the result of their negligence. Johnson eventually settled
with Meade, and the case against Meca and Control proceeded to jury trial
in the Lake County Superior Court on March 1, 1999. At the
conclusion of Johnsons case, Meca and Control moved for judgment on the evidence.
The court granted Mecas motion, but declined to dismiss Control. After
Control rested, it again moved for judgment on the evidence, but its motion
was denied. At the conclusion of trial, the jury returned a verdict
in favor of Johnson, and awarded him $2,000,000 in damages. The jury
apportioned 5% of the fault to Control, 15% of the fault to Johnson,
and 80% of the fault to Meade, which had been designated a non-party
pursuant to the Comparative Fault Act. On March 9, 1999, the court
entered judgment on the jurys verdict against Control in the amount of $100,000,
representing Controls proportional share of the total verdict.
Discussion and Decision
I. Judgment on the Evidence
A. Standard of Review
Trial Rule 50(A) of the Indiana Rules of Trial Procedure provides:
(A) Judgment on the Evidence How Raised Effect. Where all
or some of the issues in a case tried before a jury or
an advisory jury are not supported by sufficient evidence or a verdict thereon
is clearly erroneous as contrary to the evidence because the evidence is insufficient
to support it, the court shall withdraw such issues from the jury and
enter judgment thereon or shall enter judgment thereon notwithstanding the verdict.
The granting of a motion for judgment on the evidence is a matter
committed to the sound discretion of the trial court, and will be reversed
only if the court has abused its discretion.
Smock Materials Handling Co.
v. Kerr, 719 N.E.2d 396, 401 (Ind. Ct. App. 1999). Upon appeal,
we employ the same standard as the trial court. Id. We
consider the evidence in the light most favorable to the non-moving party.
Judgment may be entered only if there is no substantial evidence or reasonable
inferences to be drawn therefrom to support an essential element of the claim.
Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 167 (Ind. Ct.
App. 2000), rehg denied.
At trial, Johnson contended that Control negligently equipped the circuit breakers with the
aluminum electrical connection bars, which violated various industry standards, and that Control negligently
failed to remove the bars before delivering the equipment to LTV. Control
argued at trial, and continues to argue here, that it had attached the
bars for its factory testing of the motor control system, and that it
left the bars on only because LTV specifically asked that the bars remain.
Control also claims that even if the bars should have been removed,
Meades negligent connection of the breakers to the power supply was an unforeseeable
intervening cause of the accident, relieving Control of any liability.
To prevail on its negligence claim against Control, Johnson was required to establish
that Control had a duty to conform its conduct to a particular standard
of care, that Control failed to conform its conduct to the requisite standard
of care, and that Controls breach proximately caused Johnsons accident. See Town
of Highland v. Zerkel, 659 N.E.2d 1113, 1120 (Ind. Ct. App. 1995).
Whether Control breached a duty and whether the breach proximately caused injury are
generally questions to be determined by the trier of fact. See Bamberger
& Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 938 (Ind.
Ct. App. 1996). However, whether a duty of care exists is a
question of law for the courts to decide. Town of Highland, 659
N.E.2d at 1120.
Johnsons negligence claims included allegations that Control had a legal duty to design,
manufacture, assemble and deliver the motor control system and its component parts, including
the circuit breakers, in a reasonably prudent manner so as to avoid foreseeable
harm, and in conformity with standards from the National Electric Code (NEC), Underwriters
Laboratories (UL), and the National Fire Protection Association (NFPA). Control does not
challenge upon appeal the existence of such duties. The issue before us
is therefore whether Johnson presented sufficient evidence from which the jury could conclude
that Control breached its duties, proximately causing Johnsons accident.
Johnsons electrical engineering expert, Professor William DeWitt (DeWitt), testified that he had never
before seen a circuit breaker with protruding exposed aluminum bars used to facilitate
an electrical connection. He considered the bars dangerous and improper and stated
that they should not have been used to facilitate a connection between the
breakers and a power supply. He also testified that the bars violated
accepted electrical safety standards. DeWitt indicated that if the bars were to
be used, they should have been rigidly mounted to the circuit breaker pursuant
to NEC standards. According to DeWitt, the bars were not rigidly mounted.
DeWitt further stated that the aluminum bars should have been mounted at least
one inch apart from each other pursuant to accepted UL specifications. The
bars were less than one-half inch apart. Moreover, DeWitt testified that the
bars violated the NFPA because they were impermissible devices located upstream of the
circuit breaker, and were live even when the circuit breaker was off.
Finally, DeWitt stated that if the bars had been installed to facilitate Controls
initial test of the system, as Control maintained, the bars may have constituted
acceptable temporary wiring within the meaning of the NEC, but should have been
removed from the circuit breakers prior to delivery to LTV pursuant to NEC
Controls defense is, as it was at trial, that LTV specifically requested that
the bars be left on the circuit breakers following the factory test of
the motor control system, to provide Meade with flexibility in connecting the breakers
to a power supply. Controls representative at trial, Derald Bogs (Bogs), who
worked for LTV at the time of the accident and supervised LTVs facility
upgrade, testified that he specifically told Control not to remove the bars.
However, during his deposition taken several years prior to trial, Bogs was unable
say why the breakers had been shipped to LTV with the bars attached.
Further, on December 17, 1991, four days after the accident, Boggs prepared
a written report stating that after he examined the circuit breakers, he discovered
that they were supplied with bus termination pieces instead of the common mechanical
connection. Moreover, on January 20, 1992, Bogs wrote to Control on behalf
of LTV demanding that Control provide some justification under the NEC for spacing
the bars less than one-half inch apart. Bogs confirmed that the bars
had been installed by Control, stating, the pictures that Control Techniques has made
prior to shipment clearly illustrate the bus pieces being present.
The jury was not required to believe that Bogs, on behalf of LTV,
told Control to ship the breakers with the bars attached, particularly in light
of the evidence above. In any event, DeWitt testified that the presence
of the bars so violated accepted standards and practices that delivery of the
breakers with the bars attached was negligent regardless of whether they had been
requested by Control. The jury was presented with sufficient evidence to find
that Control breached its duties to design, manufacture, assemble and deliver the circuit
breakers in a reasonably prudent manner so as to avoid foreseeable harm, and
in conformity with various accepted standards of care.
3. Proximate Cause
An act of negligence is the proximate cause of an occurrence when the
occurrence should have been foreseen and anticipated as the natural and probable consequence
of the negligent act. Lutheran Hospital of Indiana, Inc. v. Blaser, 634
N.E.2d 864, 871 (Ind. Ct. App. 1994). In this case, there was
evidence from which the jury could have concluded that Johnsons accident was the
foreseeable result of Controls negligence. According to DeWitt, the risk presented by
Controls negligent installation of the aluminum bars was that an explosive short circuit
could occur if an object passed between two of the bar and lug
pieces. The parties generally agree that Johnsons accident probably occurred when one
of the wire probes of Johnsons voltage tester slipped from where Johnson had
placed it on the bar and lug piece, and passed between two of
the bars and lugs, causing a short circuit that created the explosive arc
of electricity. DeWitt testified that the live bars and lugs were an
obvious and convenient place to test for the presence of incoming voltage.
Johnson testified that he performed the test with a standard voltage tester in
an acceptable manner. It was therefore reasonably foreseeable that if the bars
were left on the breakers and connected to an electrical power supply, someone
would use the bars to test for incoming voltage, and might inadvertently allow
a standard voltage tester prong to pass between two of the bars, leading
to an explosive short circuit. Indeed, Johnsons accident appears to be precisely
the event risked by Controls installation of the bars.
Control maintains that even if it was negligent to affix the bars to
the circuit breakers and to deliver the breakers to LTV with the bars
attached, the accident would never have occurred if Meade had wired the bars
properly. According to Control, the accident happened because Meade negligently wired the
bars by using oversized lugs, which further reduced the space between the bars,
and because Meade failed to properly insulate the bars and lugs, leaving an
exposed source of electricity. Control reasons that its initial installation of the
aluminum bars merely created a condition that rendered possible Meades subsequent negligent wiring
of the breakers, which Control claims was an unforeseeable superceding cause of the
accident, severing the causal connection between Controls initial negligence and Johnsons subsequent accident.
Control correctly notes that when one defendants negligence merely creates a condition that
makes possible the subsequent negligent act of another, the first negligently created condition
is not necessarily the proximate cause of the ultimate injury-producing event. See
Crull v. Platt, 471 N.E.2d 1211, 1215 (Ind. Ct. App. 1985). This
is simply another way of saying that an independent act intervening between the
original act of negligence and the occurrence may break the chain of proximate
causation and relieve the original tortfeasor of liability for the occurrence. See
Id.; Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994).
However, the causal connection between the first act of negligence and the ultimate
harm is severed only if the original negligent actor could not have foreseen
that the second actor would intervene in such a way as to produce
the harm. Collins v. J.A. House, Inc. 705 N.E.2d 568, 573 (Ind.
Ct. App. 1999), rehg denied, trans. denied. Moreover, there may be
more than one cause of an injury, and a negligent actor may be
liable for the results of his actions even though they combine with the
actions of others to produce the resulting harm. National R.R. Passenger Corp.
v. Everton by Everton, 655 N.E.2d 360, 366 (Ind. Ct. App. 1995).
The foreseeability of an intervening cause and, thus, whether a defendants conduct is
the proximate cause of a plaintiffs damages, is a question of fact for
a jury. Id. at 366-67. Liability does not hinge on an
actors ability to foresee the exact manner in which harm will occur; rather,
it is enough if he could have foreseen, in a general way, the
injurious consequences of his actions. Id. at 367.
The evidence adduced at trial indicates that Control could have foreseen that Meade
would wire the bars in a way that did not reduce the risk
created by the bars themselves. Scott Matthews (Matthews), Controls systems engineer on
the project, testified that Control always shipped circuit breakers with some kind of
device for connecting incoming electrical power to the breakers. In this case,
Control delivered circuit breakers with aluminum bars to provide Meade with the flexibility
to wire the breakers in the manner Meade felt prudent. According
to Matthews, the bars gave Meade the option of connecting electricity to the
breakers by drilling and tapping the bars, and connecting wires to the bars
by using compression lugs attached to the bars with screws and bolts.
This appears to be precisely what Meade did. It appears that Meade
did not insulate the bars and lugs, and that Meade used lugs larger
than Control felt were appropriate. However, the jury heard testimony that the
bars violated various codes and standards, that they should never have been used
in the first place, and that experienced electricians had never seen such devices
before. Given this evidence, we cannot say that the manner in which
Meade wired the bars was so unforeseeable to Control that the question should
have been withdrawn from the jury. Ultimately, the jury concluded that Meade
bore 80% of the fault for the accident, and charged Control with just
5% of the fault, vindicating both Controls position that Meade was primarily responsible
for Johnsons mishap, and the trial courts decision to submit the question to
II. Jury Instruction
A. Standard of Review
Instruction of the jury is left to the sound judgment of the trial
court, and our review of a trial courts decisions in this regard is
highly deferential: we will not disturb the courts judgment absent an abuse of
discretion. Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 402 (Ind.
Ct. App. 1999). A trial court abuses its discretion by refusing a
tendered instruction only when: (1) the instruction correctly states the law, (2) the
evidence supports the instruction, and (3) the substance of the charge is not
covered by other instructions. Id. Further, errors in instruction are harmless
and do not require reversal where the verdict would have been no different
had the jury been properly instructed. Id.
Control tendered the following jury instruction:
An intervening cause is an action by a third party or agency that
breaks the causal connection between the defendants alleged negligence and the plaintiffs injury.
This intervening cause then becomes the direct cause of the injury.
If you decide that the injury to the plaintiff, John Johnson, would not
have occurred without the action of the third party or agency, then the
plaintiffs cannot recover from the defendant.
However, if you find that the defendant acted negligently and could have reasonably
foreseen the action of the third party or agency, then the defendant can
still be liable for the plaintiffs injuries.
(R. 142.) The instruction was not given. According to Control, the
courts refusal to give this instruction was error because the instruction accurately stated
the law of Indiana and was supported by evidence in the record that
Meades intervening negligence broke the chain of causation.
As noted above, it was for the jury to decide whether Control proximately
caused Johnsons accident, and whether Meades subsequent negligence was a reasonably foreseeable intervening
cause. The import of Controls argument here is that if these were
questions of fact for the jury, the trial courts refusal to give the
tendered instruction effectively withdrew from the jury the option of finding that Meades
negligence was an unforeseeable intervening cause breaking the chain of causation and relieving
Control of liability for the accident. We disagree.
This court has recognized that [t]he comparison of fault inherent in the doctrine
of intervening cause has been incorporated into our comparative fault system. L.K.I.
Holdings, Inc. v. Tyner, 658 N.E.2d 111, 120 (Ind. Ct. App. 1995).
Here, the court instructed the jury to:
decide this case according to the Indiana law of comparative fault. The
term fault refers to conduct that makes a person responsible, in some degree,
for an injury. The type of fault at issue in this case
(Final Jury Instr. No. 29. R. 125.) The courts instructions defined negligence
as the failure to exercise reasonable or ordinary care, Final Jury Instr. No.
15 (R. 110), and proximate cause as that cause which produces injury complained
of and without which the result would not have occurred, and which leads
in a natural and continuous sequence to the resulting injury. (Final Jury
Instr. No. 17. R. 112.) The court further instructed the jury that
Control had named Meade as a nonparty, and instructed the jury to treat
[Meade] as you would any other defendant in assessing fault. (Final Jury
Instr. No. 20. R. 115.) The court explained the jurys responsibility to
determine and apportion fault as follows:
First , you must decide the percentage of fault, if any, for . .
. Johnson, . . . Control . . . and Meade . .
. in the proximate cause of [Johnsons] injuries and damages. These percentages
must total 100%.
(Final Jury Instr. No. 30 (emphasis in original). R. 126.) The jury
was further instructed as follows:
If you find [Control] is not at fault, then your verdict should be
for [Control] and no further deliberation is necessary.
If you find [Control] was at fault, you must assess the fault on
a percentage basis between . . . Johnson, . . . Control, .
. . and the nonparty, Meade Electric Company, Inc. The percentage of
fault assessed to each party and nonparty will allow you to decide whether
[Johnson] and his wife are entitled to recover damages, and if so, the
amount of damages.
(Id. R. 126.)III. Admonishment of Jury Following Remarks of Counsel During Closing Argument
The jury here was given the opportunity to weigh and compare the respective
fault of Meade, Control, and Johnson by determining whether their actions were negligent,
and whether they proximately caused the accident. The jury was specifically instructed
that, when making these determinations, it could conclude that Control bore no fault.
The courts instructions on negligence, proximate cause and comparative fault covered the
substance of the instruction proffered by Control. The trial court therefore did
not err in refusing Controls tendered instruction.
A. Standard of Review
All decisions regarding the orderly conduct of trial not otherwise regulated by statute
or rule are generally within the discretion of the trial court. Archem,
Inc. v. Simo, 549 N.E.2d 1054, 1060 (Ind. Ct. App. 1990). The
maintenance of control over arguments of counsel is such a matter, and a
courts exercise of this control is not reversible error unless the court has
abused that discretion. Id. See also, Stephens v. Shelbyville Central Schools,
162 Ind. App. 229, 318 N.E.2d 590, 592 (1974).
The jury learned during trial that Johnson had settled his claims against Meade
for an undisclosed sum of money. During final argument, Controls counsel reminded
the jury of this settlement, and stated, [w]hat [Johnsons counsel] wants, Ladies and
Gentlemen, is to have his cake and eat it too. He wants
to receive full settlement with Meade for his clients injuries and damages, and
he also wants Control to pay for the same damages and injuries.
(R. 45.) Johnson objected, arguing that this statement was improper since there
was no evidence that Meades settlement was in full compensation for Johnsons alleged
damages. The court agreed, and admonished the jury to disregard any implication
that Johnson had already fully recovered for his damages through the settlement with
Meade. Control argues that the courts admonishment was impermissibly prejudicial because it
essentially invited the jury to conclude that Johnson was entitled to additional damages.
Attorneys may not argue matters not in evidence. Jackson v. Beard, 146
Ind. App. 382, 255 N.E.2d 837, 848 (1970). Although the jury was
aware of Meades settlement, no evidence was presented as to the amount of
the settlement, or that the settlement fully compensated Johnson for his alleged injuries.
It is true that counsel may present argument regarding proper inferences that
may be drawn from the evidence, and may draw reasonable conclusions from the
evidence on his own system of reasoning. Id. However, in the absence
of any evidence regarding the amount of Meades settlement, the jury could not
properly infer that Johnson had been fully compensated for his damages. The
only thing the jury could properly conclude from the mere fact of the
settlement was that Johnson had been compensated for damages he sustained as a
result of Meades negligence. Therefore, the trial court did not abuse its
discretion by admonishing the jury to disregard counsels comments.
Even if it had been appropriate to infer from the fact of Meades
settlement that Johnson had already fully recovered for his damages such that Control
should have been entitled to present argument to that effect, a contention not
advanced by Control, the courts admonishment in no way prejudiced Control. After
the court instructed the jury to disregard the comments of Controls counsel, counsel
continued his argument along the same lines, stating:
[w]hat we know, Ladies and Gentlemen, is that [Johnsons counsel], on behalf of
his clients approved the settlement with Meade for this case based upon the
injuries that his client had. And we are left here with allegations
that Meades conduct is attributable to control techniques [sic]. Basically, what he
wants us to be responsible for is what Meade did wrong here, and
were not responsible for what Meade did wrong here. Meade was responsible
for that, and thats why they settled the case.
(R. 45.) The court was not asked to admonish the jury following
these comments. Control was permitted to pursue essentially the same line of
argument a second time without objection, and was not deprived of any opportunity
to make its point to the jury. Even if the courts admonishment
had been erroneous, the error would have been harmless.
IV. Jury Verdict
A. Standard of Review
Our review of a claim that an award of damages is inadequate is
limited: we may neither reweigh the evidence, nor judge the credibility of witnesses.
Buckland v. Reed, 629 N.E.2d 1241, 1244 (Ind. Ct. App. 1994).
Instead, we look only to the evidence and inferences therefrom which support the
jury's verdict. Landis v. Landis, 664 N.E.2d 754, 756 (Ind. Ct. App.
1996). The jury is in the best position to consider the evidence,
and we will not substitute our idea of a proper award for that
of the jury, so long as the damages are within the scope of
the evidence. Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App.
1994); Burris v. Riester, 506 N.E.2d 484, 485 (Ind. Ct. App. 1987).
Thus, if there is any evidence in the record that supports the amount
of the award, even if it is variable or conflicting, the award will
not be disturbed. Landis, 664 N.E.2d at 756. A verdict will
be reversed only upon a finding that, based upon the evidence, the amount
of damages awarded indicate that the jury was motivated by prejudice, passion, partiality,
corruption or consideration of some improper element. Id.
Johnson presented substantial evidence at trial concerning his serious and permanent burn injuries,
including evidence of his extensive medical treatment, his substantial medical expenses, and his
physical pain and suffering. He also presented evidence of significant lost wages.
Control did not present contrary evidence at trial, and does not take
issue with the evidence of Johnsons damages here. Rather, Control argues that
the jurys award of $2,000,000 was excessive because Johnsons unpaid medical expenses and
lost wages amounted to only about 10% of the award, and because Johnson
has returned to work and will probably not incur medical expenses in the
Control cites no authority, and there appears to be none, supporting its proposition
that an award of damages in a personal injury case, otherwise supported by
the evidence, is necessarily excessive simply by virtue of the amount of the
award itself or the proportional relationship of the award to a plaintiffs pecuniary
loss. Rather, the weight of the authority is to the contrary.
See, e.g., Rieth-Riley Const. Co. v. McCarrell, 163 Ind. App. 613, 325 N.E.2d
844, 849 (1975); Dwyer v. McClean, 132 Ind. App. 454, 175 N.E.2d 50,
Moreover, Controls argument with regard to Johnsons return to work and absence of
future medical treatment is unavailing. First, Johnson presented evidence that while he
returned to work, he no longer performed lucrative overtime duties as a result
of his accident, and the jury was entitled to consider this evidence when
reaching its verdict. Further, even if Johnson will require no further medical
treatment, the jury was presented with substantial evidence regarding Johnsons severe and permanent
burn injuries, and his extensive medical treatment. This evidence, combined with the
evidence of Johnsons lost wages, none of which Control disputes, was sufficient to
support the award, and we cannot say that the jury was motivated by
prejudice, passion, partiality, corruption or consideration of some other improper element.
RILEY, J., and BARNES, J., concur.
Johnson sued several other defendants who played no role at trial and
are not parties to this appeal. In addition, Johnsons wife, Linda Johnson,
sued for loss of consortium damages. She was awarded nothing, and is
not a party on appeal.