State v. Tabler, No. 3-1075A217

Docket NºNo. 3-1075A217
Citation178 Ind.App. 31, 381 N.E.2d 502
Case DateOctober 18, 1978
CourtCourt of Appeals of Indiana

Page 502

381 N.E.2d 502
178 Ind.App. 31
STATE of Indiana and the Indiana State Highway Commission,
Defendants-Appellants,
v.
Bryan TABLER, a minor by his next friend, Harvey Tabler,
Harvey Tabler, Administrator of the Estate of Carol Joyce
Tabler, Deceased, Harvey Tabler, Individually and Terry P.
McBride, Plaintiffs-Appellees.
No. 3-1075A217.
Court of Appeals of Indiana, Third District.
Oct. 18, 1978.

Page 503

Theo. L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for defendants-appellants.

Floyd F. Cook, Cook, Cook & Welke, Kokomo, William S. Spangler, David L. Abel, II of Spangler, Jennings, Spangler & Dougherty, Gary, [178 Ind.App. 32] Thomas B. Dumas, Dumas & Moriarity, Rensselaer, Herbert F. Small, Nelson J. Becker, Hanna, Small, Sabatini & Becker, Logansport, for plaintiffs-appellees.

GARRARD, Presiding Judge.

During a light rain on the morning of March 29, 1973, a tractor-trailer loaded with liquid fertilizer was heading east on U.S. Highway 24, and a smaller truck carrying milk bottles and cartons was heading west. Several hundred feet east of the intersection of U.S. Highway 24 and State Road 13, the highway narrows from four to two lanes. The tractor-trailer had gone through the intersection and was travelling at 30-35 mph when it jackknifed as it came out of the four lane section onto the two lane section of Highway 24. It crossed into the westbound lane where it was struck broadside by the smaller truck.

Page 504

An explosion and fire resulted which killed the 29 year old driver of the milk truck, Carol Tabler. Her nine year old son, Bryan, was pinned in the truck for one and a half hours before rescuers were able to free him. Terry McBride, the driver of the tractor-trailer, escaped from his truck when its windshield was popped out by the explosion.

Both McBride and Bryan Tabler were severely burned. Without detailing the extent of their injuries, we note that Bryan suffered second and third degree burns on 20% Of his body. The severity of the burns to his legs required their amputation. He was hospitalized for 4 months during which numerous skin grafting operations were performed. He currently requires physical therapy and will continue to do so, especially in the refitting of prosthetic devices as he grows. McBride suffered burns on 45% Of his body, more than a third of which were third degree. His eyelids, part of his nose, eartips, and lips were burned off. His face, hands, arms and upper torso are covered with scar tissue, the aesthetic appearance of which cannot be improved. His hands and what remains of his fingers have limited dexterity and freedom of movement. It is anticipated that their mobility will decrease within the next few years as the result of a form of arthritis associated with extreme burns. McBride was 20 years old at the time of the accident. Like Bryan he was hospitalized for about 4 months and has required extensive skin grafts.

[178 Ind.App. 33] Harvey Tabler, as his son's next friend, as administrator of his wife's estate, and individually, brought an action based on the negligence of McBride against two companies, Chester Inc. and Young Brothers, the lessee and owner of the tractor-trailer. McBride brought an action against the state and the state highway commission alleging that negligent maintenance of the highway caused him to loose control of his truck. Tabler amended his complaint to include the state as a defendant after he entered three loan receipt agreements with the insurer for Chester Inc. and Young Brothers. Chester Inc. and Young Brothers were eventually dismissed and the suits by McBride and Tabler were consolidated.

The jury returned a verdict in favor of all the plaintiffs. However it awarded Harvey Tabler nothing as administrator of his wife's estate. He was awarded $11,000 for loss of services and expenses incurred. Bryan Tabler was awarded $70,000 and McBride received $7,500. The plaintiffs-appellees' motions to correct errors, urging inadequacy of the damages, were granted. Pursuant to Indiana Rules of Procedure, Trial Rule 59(E)(5), appellees were given a new trial solely on the issue of damages unless the state would agree to an additur of $280,000 for Bryan, $150,000 for Harvey Tabler as administrator, and $392,500 for McBride. The jury's award to Harvey Tabler individually was let stand and no argument attacking that portion of the ruling has been advanced on appeal. Accordingly, we leave that judgment undisturbed.

In its findings of fact, the trial court extensively catalogued the type and extent of the plaintiffs' injuries, the care and methods of treatment required, and the degrees of impairment and disability. The court concluded that the damages were grossly inadequate. However, it rejected a new trial on all the issues, stating that retrying liability would be proper only if:

"the court could realistically anticipate that on a retrial of all the issues the defendants would have at least an even chance of a verdict in their favor. Under the circumstances presented by this case this court does not hold that view."

The state has taken an appeal raising several issues, the most crucial of which is the propriety of granting a new trial on damages only. The state argues that the jury's verdict was the result of a compromise on [178 Ind.App. 34] the issue of liability and, therefore, a new trial must be had on all the issues. In support of this...

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17 practice notes
  • Hundt v. Lacrosse Grain Co., Inc., No. 3-1278A317
    • United States
    • September 21, 1981
    ...automobile purchased for $2,944 were "clearly inadequate" assuming the liability of the defendant); State v. Tabler, (1978) Ind.App., 381 N.E.2d 502 (in an accident involving the collision of two trucks, the estate of one deceased plaintiff was awarded no damages, her nine-year-old son, who......
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1980
    ...question of Loew's claim for punitive Page 254 damages. In support of its position, Southern relies on State v. Tabler (1978), Ind.App., 381 N.E.2d 502. In Tabler, the trial court granted a Motion to Correct Errors based on the claim that the compensatory damages awarded plaintiff were inad......
  • McNall v. Farmers Ins. Group, No. 3-476A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1979
    ...order a limited new trial since the issue of liability has not been fairly determined. In State et al. v. Tabler et al. (1978), Ind.App., 381 N.E.2d 502, this court "(A) new trial limited to damages because of an award of inadequate damages is proper only when it is clear that the verdict o......
  • Sanders v. Cole Mun. Finance, No. 3-185A24
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1986
    ...be proper under the circumstances. However, such relief requires as a basis a finding of inadequate damages, State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. denied, 272 Ind. 32, 395 N.E.2d 787 (1979), and such a finding was not appropriate in this case for the reasons stated......
  • Request a trial to view additional results
17 cases
  • Hundt v. Lacrosse Grain Co., Inc., No. 3-1278A317
    • United States
    • September 21, 1981
    ...purchased for $2,944 were "clearly inadequate" assuming the liability of the defendant); State v. Tabler, (1978) Ind.App., 381 N.E.2d 502 (in an accident involving the collision of two trucks, the estate of one deceased plaintiff was awarded no damages, her nine-year-old son, who ......
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1980
    ...question of Loew's claim for punitive Page 254 damages. In support of its position, Southern relies on State v. Tabler (1978), Ind.App., 381 N.E.2d 502. In Tabler, the trial court granted a Motion to Correct Errors based on the claim that the compensatory damages awarded plaintiff were inad......
  • McNall v. Farmers Ins. Group, No. 3-476A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1979
    ...order a limited new trial since the issue of liability has not been fairly determined. In State et al. v. Tabler et al. (1978), Ind.App., 381 N.E.2d 502, this court "(A) new trial limited to damages because of an award of inadequate damages is proper only when it is clear that the verd......
  • Sanders v. Cole Mun. Finance, No. 3-185A24
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1986
    ...be proper under the circumstances. However, such relief requires as a basis a finding of inadequate damages, State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, trans. denied, 272 Ind. 32, 395 N.E.2d 787 (1979), and such a finding was not appropriate in this case for the reasons stated......
  • Request a trial to view additional results

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