Dan Cristiani Excavating Co. Inc. v. Money

• Decision Date: 09 May 2011
• Docket Number: No. 10A05–1002–CT–114.,10A05–1002–CT–114.
• Citation: 941 N.E.2d 1072
• Parties: DAN CRISTIANI EXCAVATING CO., INC., Appellant–Defendant,v.Jeremy MONEY and Kerri Money, Appellees–Plaintiffs.
• Court: Indiana Appellate Court

941 N.E.2d 1072

DAN CRISTIANI EXCAVATING CO., INC., Appellant–Defendant,

v.Jeremy MONEY and Kerri Money, Appellees–Plaintiffs.

No. 10A05–1002–CT–114.

Court of Appeals of Indiana.

Jan. 26, 2011.Transfer Dismissed May 9, 2011.

Rodney L. Scott, Tricia Kirkby Hofmann, Waters, Tyler, Hofmann & Scott, LLC, New Albany, IN, Attorneys for Appellant.David W. Stone, IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellees.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following a jury trial, Dan Cristiani Excavating Co., Inc. (“Cristiani”) appeals a verdict in favor of Jeremy Money (“Money”) and Kerri Money for injuries sustained by Money in a bulldozer accident. On appeal Cristiani raises four issues, which we restate as: 1) whether the trial court erred in denying Cristiani's motion to try separately the issues of liability and damages; 2) whether the trial court erred in denying Cristiani's request for the jury to view the bulldozer involved in the accident or in the alternative, to admit into evidence photographs of the bulldozer involved in the accident; 3) whether the trial court erred in allowing Money's life care planner to testify regarding future medical treatment; and 4) whether the trial court's adverse rulings constitute judicial bias.

We conclude the trial court did not abuse its discretion in denying bifurcation of the trial, or in declining to allow the jury to view actual or photographic evidence of the bulldozer involved. We conclude further that Cristiani waived the issue of whether Money's life care planner was qualified to testify as an expert, and that the weight to be given her testimony was properly conceded to the jury. Finally, Cristiani failed to establish actual personal bias by the trial judge, and accordingly, we affirm.

Facts and Procedural History

In 2005 Money was employed by Weber Concrete. Throughout his ten years as an employee, he did various tasks including those of a grade checker. Checking grade involves measuring the amount of leveling (grading) of rock, gravel, or dirt that is needed in a given area prior to paving it and conveying that information to a bulldozer operator who works in tandem with the grade checker. The grade checker uses a level and ruler, and bases his assessments on a string line that was previously measured and set. To complete the task, the grade checker and bulldozer operator continually communicate regarding both what is needed to level the area (i.e., more or less earth, and where) and safety (to prevent the bulldozer from running over the grade checker). The bulldozer operator often takes several passes forward and backward to level the area, meanwhile the grade checker is to remain out of the way.

Money had checked grade numerous times with different bulldozer operators. He received no formal training or instruction on how to do so safely, but followed his coworkers' practices and after ten years of experience felt comfortable with the task. He testified that he usually discussed hand signals with the operators prior to beginning because each had their own method of how to complete the task.

In October 2005, Money began a job checking grade with Kenneth Reed, an employee of Cristiani, as the bulldozer operator. Although timing of Reed's passes and communication between the two was an issue in determining liability at trial, none of this is a primary issue on appeal. Essentially, Money told Reed the area they were working on was a few inches too high, Reed drove the bulldozer forward and then backward, and then Reed took a second pass. At some point on Reed's second or third pass, Money stepped behind the bulldozer to check their progress and Reed reversed the bulldozer over Money's foot. Money shouted, Reed stopped, and Money required emergency medical care. Money suffered a dislocated ankle and multiple fractures in his leg and left foot, and subsequently underwent several surgeries including amputation of four toes on his left foot.

Money and his wife brought suit against Cristiani and a jury returned a verdict in their favor, finding that Cristiani was 67% at fault, Money was 33% at fault, and Weber Concrete 0% at fault.¹ After determining total damages and apportioning fault, the jury found Cristiani responsible for damages of $1,340,000 to Money, and $228,917 to Kerri Money. The trial court entered a judgment on the verdict. Cristiani now appeals. Additional facts will be supplied as necessary.

Discussion and Decision

I. Bifurcation of the Trial

A. Standard of Review

Cristiani first argues the trial court erred in denying its motion to bifurcate the trial and separately try the issues of liability and damages. Indiana Trial Rule 42 provides the trial court with authority to grant such motion. “The trial court is granted a wide degree of latitude in exercising its proper discretion in granting a motion for separation of trials, and we will reverse the denial only for an abuse of that discretion.” Elkhart Cmty. Schs. v. Yoder, 696 N.E.2d 409, 414 (Ind.Ct.App.1998).

B. Trying Separately the Issues of Liability and Damages

Indiana Trial Rule 42(B) provides:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury.

Following are the well-settled guiding principles for a trial court's decision of whether to bifurcate a trial and try separately the issues of liability and damages:

The avoidance of prejudice is more than sufficient reason for a separate trial. However, a separate trial should not be granted solely upon the movant's speculation that it might be prejudiced by certain testimony. If an issue can be conveniently and expeditiously resolved, a separate trial may be ordered in the interest of judicial economy. If the proof of damages will be complicated and costly the issue of liability could first be separately tried. This was the specific purpose in adding subdivision (C) to T.R. 42 [ (regarding submission of claims or issues to juries in stages) ]. However, ... while the separation of trials can result in judicial economy when the defendant prevails on the issue of liability (by obviating the need for a trial on damages), the defendant must first convince the court that it has a persuasive argument on the question of liability in order to justify the potential risk and expense of two trials.

Frito–Lay, Inc. v. Cloud, 569 N.E.2d 983, 990 (Ind.Ct.App.1991) (citations omitted).

Cristiani argues it had a persuasive argument on the question of liability for a variety of reasons, including: 1) Money was experienced and knowledgeable, and was still negligent; 2) the facts reveal Money's fault; 3) Money told the bulldozer driver and others that it was not the driver's fault; 4) Money's liability expert testified both that Money did not abide by industry standards for safety and that it was Money's obligation to protect himself. Cristiani also points out that comparative fault would have precluded Money's recovery completely if the jury found him slightly more at fault than it eventually did after deliberations.

Although this might have been a persuasive argument on the question of liability, we conclude that in any event, Cristiani provides insufficient evidence that the jury was influenced by evidence of damages when considering liability. In other words, Cristiani fails to show sufficient evidence of prejudice, and therefore we cannot conclude the trial court abused its discretion in declining bifurcation.

Cristiani first contrasts Shafer & Freeman Lakes Envtl. Conserv. Corp. v. Stichnoth, 877 N.E.2d 475 (Ind.Ct.App.2007), trans. denied, in which we stated the jury's finding that the plaintiff was fifty percent liable “is a strong indicator” the jury did not significantly sympathize with the plaintiff. Id. at 483. Cristiani attempts to contrast Shafer with this case, in which the jury found Money “only” thirty-three percent liable, to argue that the jury must have been sympathetic to Money and therefore its finding of his liability was diminished. We disagree. Jury verdicts based on different facts are incomparable as to their finding of liability because myriad factors determine a jury's decision. Further, the jury's finding of Money's thirty-three percent liability for his own severe injuries is not persuasive evidence of the jury's sympathy.

Cristiani also contends hindsight bias prejudiced the jury because it knew how injured he had become before deliberating and apportioning liability. Although we do not disagree with hindsight bias as a psychological reality, we refuse to presume hindsight bias prejudiced the jury in this case because Cristiani discusses it as an abstract theory but does not show evidence of its influence or degree thereof in this case. While admittedly difficult to muster, without evidence of influence we must presume absence of such and cannot reverse a trial court decision based on appellate discussion of an abstract non-legal theory.

Cristiani next argues that because Money suffered substantial permanent damages and his wife's emotional testimony likely evoked sympathy, it was sufficiently prejudiced by an unbifurcated trial. We disagree that these show sufficient prejudice. Unfortunately, in many personal injury cases the plaintiff has suffered substantial permanent damages, and accordingly, loved ones offer emotional testimony.

Cristiani compares this case to Frito–Lay, in which we reviewed a trial court's denial of a motion to bifurcate. After recounting the governing law and the facts of that case, we stated “[w]e cannot imagine a case more appropriate for bifurcation than the case at bar.” Frito–Lay, 569 N.E.2d at 991. We then noted: “Had we not been...