Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Webber v. Butner

United States Court of Appeals, Seventh Circuit

May 3, 2019

Johnny Webber and Debora Webber, Plaintiffs-Appellants,
v.
Roger Butner, Defendant-Appellee.

          Argued January 16, 2019

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:16-CV-1169 - Tanya Walton Pratt, Judge.

          Before Bauer, Rovner, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Plaintiff 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.

         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 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.

         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 Burner'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." 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 Webber's injuries."[2]

          As 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.

         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 (1990); Turnell v. CentiMark Corp., 796 F.3d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.