, ___ N.E.2d ___ (Ind. 2012), Cause No. 46S04-1105-CT-284. At issue in that decision was whether jury instructions given on the issue of negligence were improper and, therefore, required a reversal of the jury's verdict in the plaintiff's favor. The Indiana Supreme Court found that the instructions were erroneous and that this was not harmless.
less..
A young boy choked to death while at school and his mother brought a wrongful death action against the school. The matter proceeded to trial, at which the following two instructions were given to the jury:
Final Instruction 11
Negligence is a failure to do what a reasonably careful and prudent person would do under the same or similar circumstances or the doing of something that a reasonably careful or prudent person would not do under same or similar circumstances. In other words, negligence is the failure to exercise reasonable or ordinary care.
Final Instruction 22
Plaintiff has the burden of proving three elements by preponderance of the evidence.
First, that the Defendant was negligent in any of the following ways:
[A.] Failed to implement or monitor a system for the provision of health services and emergency care at Hailmann Elementary.
[B.] Failed to properly [sic] or train staff at Hailmann Elementary.
[C.] Failed to assemble a first aid team at Hailmann Elementary.
[D.] Failed to prepare for a foreseeable medical emergency at
Hailmann Elementary. Or,
[E.] Failed to supervise those who had the responsibility to provide health services and emergency care at Hailmann Elementary.
Plaintiff need prove only one of these allegations above as negligence, not all of them.
Second. That the negligence of the Defendant was a proximate cause of the claimed injuries; and,
Third. That the Plaintiff suffered damages as a result of those injuries.
As I have stated, the Plaintiff must prove these propositions. The Defendant has
no . . . burden of disproving them.
The jury returned a $5 million verdict for the plaintiff, and judgment was entered in the sum of $500,000—-the maximum amount then permitted under the Indiana Tort Claims Act.
The school appealed and the Court of Appeals reversed, holding that Instruction 22 was flawed. The Indiana Supreme Court then granted transfer.
The Court characterized Instruction 22 as "akin to a comprehensive instruction enumerating the elements of the cause of action on which the plaintiff must sustain her burden of proof in order to prevail," so the instruction should "provide a jury with a roadmap to guide decision-making." The Court contrasted this with Instruction 11, which it characterized as "a supplemental, definitional instruction explaining to the jury what is meant by the term 'negligence' as it pertains to this case." The Court found that Instruction 22 did not provide the jury with the proper roadmap.
Our reading of the language of the instruction aligns with that of the School Corporation. While Instruction 22 may have been intended to explain to the jury that the plaintiff had the burden of proving the elements of negligence, proximate cause, and damages, the language and phrasing of the instruction permitted the jury to infer that the factual allegations set forth in subparts A–E should be understood as factual circumstances identified by the court, based on the facts of the case, that automatically constitute negligence if proven by a preponderance of the evidence. Such an interpretation effectively creates new duties not recognized by the common law in Indiana. Yet, with respect to negligence, a public elementary school has only one duty at common law-—the duty to exercise ordinary and reasonable care.
Miller, 261 Ind. at 612, 308 N.E.2d at 706. Even if the plaintiff's interpretation-—that Instruction 22 set forth only the plaintiff's allegations of negligence and the parties' burdens of proof—is considered a reasonable alternative reading, the existence of competing interpretations renders the instruction ambiguous and confusing, and therefore erroneous.
The error in Instruction 22 was not obviated by Instruction 11 either, because "the misleading and ambiguous nature of Instruction 22, a comprehensive 'elements' instruction, could not have been rectified by Instruction 11's correct definition of negligence."
However, the misleading and ambiguous nature of Instruction 22, a comprehensive "elements" instruction, could not have been rectified by Instruction 11's correct definition of negligence. For, even when read together, the two instructions would still permit a jury to erroneously conclude that the trial court had determined that each of the alleged omissions of the School Corporation enumerated in Instruction 22 satisfied the definition of "negligence" as provided in Instruction 11 and thus, if proven, would automatically entitle the plaintiff to prevail. As noted in footnote 2, this is not a case where the challenged instruction is merely an incomplete statement of the law. Instead, Instruction 22 presented the jury with an ambiguous statement that permitted two contradictory interpretations, one correct and one erroneous. Such ambiguity was not resolved by Instruction 11's general statement of the standard of care in the face of Instruction 22's incorporation of the specific facts of the case.
Thus, the Court remanded the case for a new trial. However, because Instruction 22 only dealt with issues of liability, the new trial would only be on liability, not damages.
Justice Sullivan dissented, noting that the trial court had "worked hard" to address the school's concerns about the instructions and "to make sure that the jury was not misled on the precise point at issue in this appeal. I think the Court is wrong to second-guess him." Justice Sullivan further noted that defense counsel presented the jury with the proper interpretation of Instruction 22 during his closing argument.
the majority specifically addressed this last point in its opinion, rejecting the notion that an ambiguity in an instruction can be cured by the argument of counsel during closing. The Court noted the counsel's role is an advocate and the judge's role was law-giver. Thus, nothing counsel said could cure the ambiguity in the instruction.
