State v. Kallembach, No. 1-283A36

Docket NºNo. 1-283A36
Citation452 N.E.2d 1027
Case DateAugust 23, 1983
CourtCourt of Appeals of Indiana

Page 1027

452 N.E.2d 1027
STATE of Indiana and the Indiana State Highway Commission,
Defendants- Appellants,
v.
Loretta KALLEMBACH, Plaintiff-Appellee,
Richard Wayne Abney, Plaintiff.
No. 1-283A36.
Court of Appeals of Indiana,
First District.
Aug. 23, 1983.

Linley E. Pearson, Atty. Gen., Robert S . Spear, Chief Counsel-Litigation, Bruce L. Kamplain, Deputy Atty. Gen., Indianapolis, for defendants-appellants.

Thomas J. Lantz, Montgomery, Elsner & Pardieck, Seymour, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendants-appellants State of Indiana and the Indiana State Highway Commission (State) appeal from an order of the Washington Circuit Court granting plaintiff-appellee 1 Loretta Kallembach (Loretta) a new trial 2 limited to the issues of Loretta's contributory

Page 1028

negligence and damages as a result of a one car accident.

We reverse and remand for a new trial on all issues.

STATEMENT OF THE FACTS

On June 14, 1980, Loretta, with her two children, 3 drove her ex-husband's 1979 four-wheel drive Ford pickup truck south on U.S. 31, intending to go to a donut shop in Scottsburg, Indiana. Loretta testified that it was a "pretty sunshiny day," and then she described the accident as follows:

"We got in the truck, going down those steps oh there was to me--and we got in the truck and I was going down the road and I was going through that straight stretch and all at once I felt a bump and the truck went down on the right side and then I had the feeling like I was going like this, seeing the sky and that's all I can remember."

The evidence also disclosed that Loretta was familiar with U.S. 31, having driven the route once a week. She further testified that she was driving between 40 and 45 m.p.h. in a 50 to 55 m.p.h. zone just before the accident occurred. Evidently, Loretta lost control of the truck and drove it off of the driving surface of the road along a straight stretch, and into a gutter which was next to the side of the road. The truck then veered toward a ravine and flipped over. Apparently, there was not much traffic on the road at the time of the accident.

Loretta was 33 years old when the accident happened, and she was employed at U.S. Shoe Corporation in Crothersville, Indiana, earning five dollars an hour on a forty hour week as a heel buffer. As a result of her injuries, Loretta underwent numerous surgical operations and extensive hospitalizations. Without detailing all of her injuries, the evidence shows that Loretta will remain a paraplegic for the rest of her life, having a life expectancy of more than 44 years.

At the time of trial, she had lost over $25,000 in income. Loretta's medical expenses before trial were in excess of $49,000, and she still required between $25,000 and $30,000 more facial reconstructive surgery. The jury found for Loretta and against the State, and assessed her damages in the sum of $100,000.

ISSUES

The State presents two issues for review:

I. Whether the trial court erred in granting a new trial when the jury verdict was within the evidence; and

II. Whether the trial court erred in limiting the new trial to the issues of Loretta's contributory negligence and damages.

DISCUSSION AND DECISION

As both issues are interrelated, we shall discuss them together. The State first argues the trial court erred in finding that Loretta should be granted an additur from $100,000 to $225,000 because the jury's verdict was within the evidence adduced at trial. The State further contends that Ind.Rules of Procedure, Trial Rule 59 is not an invitation to trial courts to assess credibility or weigh the evidence as the court did here.

The most cursory examination of the evidence on damages indicates to us that the jury's award is inadequate. The uncontroverted evidence shows that Loretta's future loss of earnings alone, assuming she would retire at age 65, amounts to $332,800. Her actual lost income from the date of the accident until the time of trial was more than $25,000. Her medical expenses were over $49,000, and further required surgery would cost nearly $30,000. Last, 4 but surely the most damaging, is Loretta's permanent paraplegia which means that she will be restricted to a wheel chair for the rest of

Page 1029

her life. Her total damages far exceed the jury award of $100,000.

In Indiana, a new trial is proper when the damages awarded are so small as to indicate that the jury was motivated by passion, partiality, corruption or considered some improper element. State v. Tabler, (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. den. (1979) Ind., 395 N.E.2d 787.

The trial court's finding that the damages were inadequate was correct; however, such a finding does not in and of itself permit a trial court to grant a limited new trial. In Tabler, supra, at 505-6, Judge Garrard thoroughly discussed the propriety of a limited new trial as follows:

"On the other hand, having correctly determined that the damages are inadequate does not necessarily mean that a trial court may properly grant a new trial on damages alone. Indiana Rules of Procedure, Trial Rule 59(E)(5) has been interpreted in Borowski v. Rupert (1972), 152 Ind.App. 9, 281 N.E.2d 502 to permit the trial court to grant a new trial limited solely to the issue of damages or, alternatively, additur. However, the court warned that a new trial on a single issue is proper only when:

'... it clearly appears that the issue to be retried is so distinct and separable from the others that a trial on it alone may be had without injustice.' 281 N.E.2d 502, 506.

This constraint is particularly appropriate when inadequate damages are involved since they may be conclusive proof that the jury has compromised its verdict. F & B Livery Co. v. Indianapolis Traction & Terminal...

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5 practice notes
  • St. John Town Bd. v. Lambert, No. 45A05-9905-CV-221.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 2000
    ...proximately contributed to their injuries. See Sauders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998); State v. Kallembach, 452 N.E.2d 1027, 1030 (Ind.Ct.App.1983), trans. denied. The plaintiffs' contributory negligence will bar all recovery regardless of any negligence on the defendant......
  • Sanders v. Cole Mun. Finance, No. 3-185A24
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1986
    ...decision on a motion for new trial, and the decision is reversed only for abuse of discretion. State v. Kallembach (1983), Ind.App., 452 N.E.2d 1027, trans. On a motion for a new trial, the trial court acts as a "thirteenth juror" and weighs the evidence and assesses the credibility of witn......
  • Smith v. Syd's, Inc., No. 06A04-8910-CV-459
    • United States
    • Indiana Court of Appeals of Indiana
    • April 22, 1991
    ...of liability is so clear that there is no issue on that point for a second jury to retry. Id.; State v. Kallembach (1983), Ind.App., 452 N.E.2d 1027, In the present case, the issue of liability is not clear. This is evidenced by the fact that the jury apportioned 50% fault to Smith. Further......
  • Hapner v. State, C-T
    • United States
    • Indiana Court of Appeals of Indiana
    • October 6, 1998
    ...negligence proximately contributed to his injuries. See Sauders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998); State v. Kallembach, 452 N.E.2d 1027, 1030 (Ind.Ct.App.1983), trans. denied. The plaintiff's contributory negligence will bar all recovery regardless of any negligence on the ......
  • Request a trial to view additional results
5 cases
  • St. John Town Bd. v. Lambert, No. 45A05-9905-CV-221.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 2000
    ...proximately contributed to their injuries. See Sauders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998); State v. Kallembach, 452 N.E.2d 1027, 1030 (Ind.Ct.App.1983), trans. denied. The plaintiffs' contributory negligence will bar all recovery regardless of any negligence on the defendant......
  • Sanders v. Cole Mun. Finance, No. 3-185A24
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1986
    ...decision on a motion for new trial, and the decision is reversed only for abuse of discretion. State v. Kallembach (1983), Ind.App., 452 N.E.2d 1027, trans. On a motion for a new trial, the trial court acts as a "thirteenth juror" and weighs the evidence and assesses the credibility of witn......
  • Smith v. Syd's, Inc., No. 06A04-8910-CV-459
    • United States
    • Indiana Court of Appeals of Indiana
    • April 22, 1991
    ...of liability is so clear that there is no issue on that point for a second jury to retry. Id.; State v. Kallembach (1983), Ind.App., 452 N.E.2d 1027, In the present case, the issue of liability is not clear. This is evidenced by the fact that the jury apportioned 50% fault to Smith. Further......
  • Hapner v. State, C-T
    • United States
    • Indiana Court of Appeals of Indiana
    • October 6, 1998
    ...negligence proximately contributed to his injuries. See Sauders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998); State v. Kallembach, 452 N.E.2d 1027, 1030 (Ind.Ct.App.1983), trans. denied. The plaintiff's contributory negligence will bar all recovery regardless of any negligence on the ......
  • Request a trial to view additional results

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