January 16, 2019
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. l:16-CV-1169
- Tanya Walton Pratt, Judge.
Bauer, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Johnny Webber was cutting down a tree on defendant Roger
Burner'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.
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.").
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.
Factual & Procedural Background
April 18, 2014, Johnny Webber was helping his friend Roger
Burner cut down trees on Burner'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.
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
Burner's breaches of duties.
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."
Burner then presented evidence that Webber had not been using
a hardhat. That evidence was highlighted in Burner'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
noted, the jury apportioned 51% of fault to Webber and 49% of
fault to Burner. The district court entered judgment for
Burner. 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.
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 (1990); Turnell v. CentiMark Corp., 796 F.3d