Webber v. Butner

• Decision Date: 03 May 2019
• Docket Number: No. 18-2866,18-2866
• Citation: 923 F.3d 479
• Parties: Johnny WEBBER and Debora Webber, Plaintiffs-Appellants, v. Roger BUTNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

923 F.3d 479

Johnny WEBBER and Debora Webber, Plaintiffs-Appellants,

v.Roger BUTNER, Defendant-Appellee.

No. 18-2866

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2019

Decided May 3, 2019

Eric Stephen Pavlack, Attorney, PAVLACK LAW LLC, Indianapolis, IN, for Plaintiffs-Appellants.

Benjamin G. Stevenson, Attorney, W. Brent Threlkeld, Attorney, THRELKELD & ASSOCIATES, Indianapolis, IN, for Defendant-Appellee.

Before Bauer, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiff Johnny Webber was cutting down a tree on defendant Roger Butner’s property when a branch fell and hit Webber on the head, causing severe injuries. Webber and his wife Debora sued Butner for negligence. Webber was not wearing a hardhat when he was cutting the tree. The only issue on appeal is whether the district court erred by admitting evidence at trial that Webber was not using a hardhat and instructing the jury about considering that evidence.

The district court ruled that the evidence that Webber was not using a hardhat could not be admitted to support a defense of failure to mitigate damages. The court held, however, that the evidence could be admitted to show Webber’s assumption of risk and comparative fault, and whether Webber acted as a reasonably careful person. This ruling was reflected in an instruction to the jury. The jury returned a verdict apportioning 51% of fault to plaintiff Webber and 49% to defendant Butner. Under Indiana’s modified comparative fault statute, that meant Webber recovered nothing. See Ind. Code §§ 34-51-2-7(b)(2) & 34-51-2-6 ; Hockema v. J.S. , 832 N.E.2d 537, 542 (Ind. App. 2005) ("The Indiana statute is a type of modified fifty percent comparative fault law. ... Thus, if a claimant is deemed to be more than fifty percent at fault, then the claimant is barred from recovery.").

This case is in federal court under diversity jurisdiction, see 28 U.S.C. § 1332, so we apply Indiana substantive tort law, which governs whether this evidence was relevant. In determining fault, Indiana law bars admission of evidence that an injured plaintiff was not using safety equipment unless the failure to use the equipment contributed to causing the injury. See Ind. Code §§ 34-51-2-7(b)(1) & 34-51-2-3 ; Green v. Ford Motor Co. , 942 N.E.2d 791, 795–96 (Ind. 2011). The fact that Webber was not wearing a hardhat did not cause the branch to fall and hit him on the head. The district court nevertheless admitted this evidence for the purpose of apportioning fault. The admission of this evidence was an error, as was the instruction about considering the evidence. We cannot say these errors were harmless because the jury decided on a razor-thin split when apportioning fault. The Webbers are entitled to a new trial.

I. Factual & Procedural Background

On April 18, 2014, Johnny Webber was helping his friend Roger Butner cut down trees on Butner’s property in southeastern Indiana. Webber was not a professional logger, and he was not wearing a hardhat while cutting down the trees. According to plaintiffs’ evidence, the pair agreed that Webber would operate the chainsaw while Butner would assist by watching out for hazards. Unfortunately, while Webber and Butner were cutting one of the trees, an apparently dead branch fell on Webber’s head, causing severe and nearly fatal injuries.

The Webbers filed this suit in state court. (Mrs. Webber’s claim is derivative from her husband’s and requires no separate consideration here.) They alleged that Butner, as owner of the property, had a duty to take reasonable steps to protect Webber’s safety. They also alleged that Butner took on a specific duty to Webber when he agreed to look out for hazards and failed to warn Butner of the falling branch. Webber claims that his injuries were a proximate result of Butner’s breaches of duties.¹

Butner removed the case to federal court, and the case was tried to a jury. After jury selection but before opening arguments, the Webbers presented an oral motion in limine to exclude evidence that Webber was not using a hardhat while he was cutting down the trees. Following argument, the district court ruled that the evidence could be introduced "to show assumption of risk, comparative fault, and whether Johnny Webber acted as a reasonably careful person." Butner then presented evidence that Webber had not been using a hardhat. That evidence was highlighted in Butner’s closing argument, reminding the jury that Webber cut the trees "without wearing any safety helmets, any safety equipment," and that "you can consider that testimony that he didn’t wear a hardhat, so he basically—he assumed the risk of that danger." The court instructed the jury: "Evidence relating to the use of a hardhat is offered to show assumption of risk, comparative fault, and whether Johnny Webber acted as a reasonably careful person. You may not consider it to show whether it would have prevented or altered the extent of Johnny Webber’s injuries."²

As noted, the jury apportioned 51% of fault to Webber and 49% of fault to Butner. The district court entered judgment for Butner. On appeal, the Webbers challenge two related rulings: (1) the admission of evidence that Webber was not using a hardhat, and (2) the jury instruction on that evidence.

II. Analysis

We review a district court’s evidentiary rulings for an abuse of discretion. E.g., Aldridge v. Forest River, Inc. , 635 F.3d 870, 874 (7th Cir. 2011). A district court may abuse its discretion, however, if it exercises that discretion based on a mistaken view of the law. E.g., Cooter & Gell v. Hartmarx Corp ., 496 U.S. 384, 402, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ; Turnell v. CentiMark Corp ., 796 F.3d 656, 662 (7th Cir. 2015) ; Ervin v. OS Restaurant Services, Inc ., 632 F.3d 971, 976 (7th Cir. 2011).

Since we are hearing this case under diversity jurisdiction, substantive Indiana tort law governs the relevance, and thus the admissibility, of this evidence of the failure to use safety equipment. See, e.g., Barron v. Ford Motor Co. , 965 F.2d 195, 198–200 (7th Cir. 1992) (discussing considerations to determine whether state rule is procedural rule of evidence or substantive rule to be used under the Erie Railroad doctrine in a federal court hearing a case under diversity jurisdiction); id . at 202 (Ripple, J., concurring). As shown below, Indiana cases on evidence that an injured plaintiff failed to use safety equipment are driven by substantive policy determinations stemming from state legislation. We must apply Indiana law by doing our best to predict how the Indiana Supreme Court would decide about the relevance of this evidence. See, e.g., Allstate Ins. Co. v. Menards, Inc ., 285 F.3d 630, 635 (7th Cir. 2002).

A. The Indiana Comparative Fault Act

To prove that Butner was at fault for the injury, the Webbers had to show: (1) a duty owed to the plaintiff by the defendant; (2) a breach of duty by allowing conduct to fall below the applicable standard of care; and (3) an injury proximately caused by the defendant’s breach. See Robertson v. B.O. , 977 N.E.2d 341, 344 (Ind. 2012) ; Nasser v. St. Vincent Hosp. & Health Servs. , 926 N.E.2d 43, 48 (Ind. App. 2010). If a plaintiff proves each of these elements, the defendant is liable and all that remains is a determination of the amount of damages. See Robertson , 977 N.E.2d at 344.

The Indiana Comparative Fault Act applies generally to damages actions based in fault. See Mendenhall v. Skinner & Broadbent Co. , 728 N.E.2d 140, 142 (Ind. 2000). The Act replaced the common law rule of contributory negligence, under which a plaintiff who was even slightly negligent was barred from any recovery.

See id. , citing Indianapolis Power & Light Co. v. Brad Snodgrass, Inc. , 578 N.E.2d 669 (Ind. 1991). The Act allocates fault proportionally, "ensuring that each person whose fault contributed to cause injury bears his or her proportionate share of the total fault contributing to the injury." Mendenhall , 728 N.E.2d at 142, citing Bowles v. Tatom , 546 N.E.2d 1188 (Ind. 1989).

For the section of the Act at issue here, "fault" is defined to include:

any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.

Ind. Code § 34-6-2-45.

The phrase "unreasonable failure to avoid an injury or to mitigate damages" applies only to a plaintiff’s conduct before an accident or initial injury. Kocher v. Getz , 824 N.E.2d 671, 674 (Ind. 2005). In dicta in Kocher v. Getz , the Indiana Supreme Court gave an example of such conduct: "failing to exercise reasonable care in using appropriate safety devices, e.g., wearing safety goggles while operating machinery that presents a substantial risk of eye damage." Id. at 674–75. A plaintiff’s post-accident conduct that constitutes an unreasonable failure to mitigate damages is not to be considered in the assessment of fault. Id. at 675.

Under the Act, the jury assesses percentage of fault by considering "the fault of all persons who caused or contributed to cause the alleged injury." Ind. Code § 34-51-2-7(b)(1) (emphasis added). The Indiana Supreme Court has characterized this language as "expansive." Green v. Ford Motor Co. , 942 N.E.2d 791, 795 (Ind. 2011) ("the legislature employed expansive language to describe the breadth of causative conduct that may be considered in determining and allocating fault"). But in Green the Indiana Supreme Court also emphasized that causation remains central in assessing fault:

The Comparative Fault Act, however, further specifies that, in comparative fault actions, the "legal requirements of causal relation apply." Ind. Code § 34-51-2-3. This requirement of proximate cause to establish liability was preserved in the Indiana comparative fault scheme. Control Techniques, Inc. v.

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