Warrick v. Stewart
| Decision Date | 28 April 2015 |
| Docket Number | No. 92A03–1407–CC–257.,92A03–1407–CC–257. |
| Citation | 29 N.E.3d 1284 |
| Parties | Dawn WARRICK and Nathan Parrish, Appellant–Defendants, v. Steve and Mitzi STEWART, Appellee–Plaintiffs. |
| Court | Indiana Appellate Court |
Patrick J. Murphy, State Farm Litigation Counsel, Indianapolis, IN, Attorney for Appellant.
John C. Theisen, Nathaniel O. Hubley, Theisen & Associates, LLC, Fort Wayne, IN, Attorney for Appellee.
, Judge.
[1] Steve Stewart (“Stewart”) brought a negligence claim against Dawn Warrick (“Dawn”) and Nathan Parish (“Nathan”) (collectively, “the Warricks”) after Stewart's motorcycle collided with the Warricks' loose dog, causing Stewart to suffer personal injury.1 A jury found that Stewart was seventy percent at fault and accordingly returned a verdict for the Warricks. After Stewart filed a motion to correct error, the trial court granted the motion, set aside the jury's verdict, and ordered a new jury trial. We affirm.
[2] The Warricks present one issue for review: whether the trial court abused its discretion when it granted Stewart's motion to correct error, set aside the jury's verdict as against the weight of the evidence, and ordered a new trial.
[3] At approximately 11:00 a.m. on October 11, 2010, a clear and dry morning, Stewart was driving his motorcycle south on Main Street in Columbia City, Indiana. After stopping for a red light at the corner of Main and Chicago Streets, Stewart turned left and headed east on Chicago. On his right, Stewart noticed a pickup truck beginning to exit the corner gas station onto Chicago. Concerned that the truck was going to pull out in front of him, he slowed down. When the truck driver braked and acknowledged Stewart, Stewart accelerated and continued east on Chicago. Stewart was looking forward, and in his peripheral vision, he did not see any cars coming from Whitley Street on his left.
[4] Seconds later, a dog darted into the street and collided with Stewart's motorcycle. He never saw the dog. Stewart gave conflicting testimony as to how many seconds elapsed between the time he braked for the truck and the time he hit the dog, but estimated his speed on impact as twenty-two to twenty-three miles-per-hour. He lost control of the bike, his helmet hit the pavement, and the motorcycle slid 102 feet to a stop. As a result of the crash, Stewart suffered injuries to his shoulder, collarbone, back, leg, and foot.
[5] Christopher LaRue (“LaRue”) was driving a pickup truck about one hundred feet directly behind Stewart. From his vantage point, LaRue saw a dog, “running fast for a dog” (Tr. 157), dart out from behind a small concrete wall on the right side of the road and into Stewart's path. LaRue estimated that Stewart was traveling twenty miles-per-hour when he hit the dog. When asked whether LaRue thought Stewart could have done anything to avoid the collision, LaRue opined that “if I would have been on a motorcycle, I would have hit the dog.” (Tr. 157.)
[6] Columbia City Police Officer Peter Yorg (“Officer Yorg”) investigated the accident. Officer Yorg described the circumstances contributing to the crash as “the fact that the dog ran out in front of ... the motorcycle and ... the motorcycle ... struck the dog and caused him to lose control.” (Tr. 174.) Officer Yorg's investigation did not lead him to conclude that Stewart was at fault in any way.
[7] At the time of the crash, Nathan was inside the Chicago Street home he shared with his mother, Dawn. The Warricks had recently acquired two dogs, one for each of them, which they kept inside the house. The Warricks did not have a fence around their property; thus, when they let the dogs outside, they restrained each dog in the backyard using a cable that attached to a yard stake on one end and the dog's collar on the other. On the morning of the crash, Nathan let the dogs outside on their staked cables. Shortly after, Nathan heard the accident commotion outside. After discovering Dawn's dog at the crash site, Nathan walked to the backyard where he found the escaped dog's collar still clasped shut and attached to the staked cable; apparently, the dog had slipped the collar.
[8] At trial, Dawn testified that she had fitted a new collar on the dog one week before the accident. However, Dawn admitted that the dog, which had obviously slipped out of the collar just before the crash, was not “properly restrained” and was “at large” in the city limits, in violation of Columbia City Ordinance section 90.03(K). Stewart's dog training expert, Michael Rowland, Jr. (“Rowland”) testified that the collar was in good working order and the appropriate size for the dog. However, based on his review of the evidence, the only way the collar could come over the dog's head was if the collar was improperly fitted. Rowland testified that the breed's “head size is so much bigger than that area in the neck where [the collar] should be fitted, that it would be physically impossible for the dog to pull a properly fitted collar over its head.” (Tr. 219.)
[9] Stewart filed a negligence claim against the Warricks on November 30, 2011, alleging that the Warricks were negligent in failing to restrain and supervise the dog and that their negligence was the cause of the crash and Stewart's personal injuries. On May 14, 2014, at the conclusion of a two-day jury trial, the jury assigned seventy percent fault to Stewart and thirty percent fault to the Warricks. Because the jury found Stewart more than fifty percent at fault, the trial court entered judgment in favor of the Warricks.
[10] Stewart then filed a motion to correct error, on which the court heard argument on June 19, 2014. (Tr. 364.) On June 25, 2014, the trial court granted Stewart's motion to correct error, set aside the jury's verdict as against the weight of the evidence, and granted a new trial. The Warricks now appeal.
governs motions to correct error. Rule 59(J) provides that if a court determines that prejudicial or harmful error has been committed, the court shall take such action as will cure the error, including, among other possible remedies, granting a new trial. T.R. 59(J)(1). Further:
(7) In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence....
.
[12] Once the trial court has granted a new trial, this Court will reverse that decision only for an abuse of discretion. Barnard v. Himes, 719 N.E.2d 862, 865 (Ind.Ct.App.1999)
, trans. denied. An abuse of discretion occurs when the court's action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom. Id. The trial court's decision to grant a new trial is given a strong presumption of correctness. Walker v. Pullen, 943 N.E.2d 349, 351 (Ind.2011). However, the strong presumption of correctness arises only if the trial court's decision is supported by the special findings required by Trial Rule 59(J). Id. at 352.
. Our supreme court has explained the purpose of the rule and the special findings:
The purpose of authorizing the trial judge to grant a new trial, when the judge considers the verdict to be against the weight of the evidence, is to erase the occasional unsupportable jury verdict. It is to supplant that which is irrational with something that is rational. An order of court can fulfill this extraordinary and extreme function only if it is based upon a complete analysis of the relevant facts and applicable law, and sets out on paper the constituent parts of that analysis. It is compliance with the arduous and time-consuming requirements of the Rule which provides assurance to the parties and the courts that the judge's evaluation of the evidence is better than the evaluation of the jury.
. Thus, strict compliance with the substantive and procedural requirements of Trial Rule 59(J) is of “paramount” importance. Id. at 464, 358 N.E.2d 974.
[14] In its order containing specific findings, the trial court concluded that a jury verdict assigning seventy percent fault to Stewart for his role in the collision was against the weight of the evidence.2 The court also noted that “[a] verdict that assigned a minimal percentage of fault to Stewart for failure to maintain a proper lookout would not be set aside.” (App. 13.) Because under the evidence presented it was “conceivable that [Stewart] be assigned minimal percentage of fault[,]” the court ordered a new trial. (App. 13.)
[15] On appeal, the Warricks argue that the trial court's grant of a new trial was an abuse of discretion because 1) the court's special findings regarding Stewart's speed were not supported by the evidence and were contrary to law,...
To continue reading
Request your trial
-
Brandon v. Buddy & Pal's III, Inc.
...the trial court should have granted him a new trial pursuant to Indiana Trial Rule 59(J) (on damages only), see Warrick v. Stewart, 29 N.E.3d 1284, 1289 (Ind.Ct.App.2015) (discussing trial court's role as thirteenth juror), we disagree. There was evidence at trial that Brandon told Walker d......