Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 1 of 34

ATTORNEY FOR APPELLANT

Jeffrey C. Gerish

Plunkett Cooney

Bloomfield Hills, Michigan

ATTORNEYS FOR APPELLEE

Douglas D. Small

Edmond W. Foley

Foley & Small

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

The Estate of Gary Pfafman,

Appellant-Defendant,

v.

Lori Lancaster, Individually, and 

as Guardian of the Estate of 

Kole Craig,

Appellee-Plaintiff.

January 18, 2017

Court of Appeals Case No.

57A03-1603-CC-516

Appeal from the Noble Circuit 

Court

The Honorable G. David Laur, 

Judge

Trial Court Cause No.

57C01-1306-CC-30

Najam, Judge.

Statement of the Case

[1] The Estate of Gary Pfafman (“Pfafman’s Estate”) appeals the trial court’s grant 

of a new trial following a jury verdict in favor of the Estate on a complaint filed 

by Lori Lancaster, Individually and as Guardian of the Estate of Kole Craig 

(“Craig’s Estate”). Pfafman’s Estate presents two issues for our review, one of 
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which is dispositive, namely, whether the trial court complied with the 

requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the 

grounds that the verdict was against the weight of the evidence and that the 

evidence was insufficient to support the jury’s verdict. We reverse.1

Facts and Procedural History 

[2] In 2004, Roger Diehm had a feed barn2(“the barn”) built on his farm in Noble 

County. Diehm asked his brother-in-law Pfafman, an electrician and sole 

proprietor of a small business doing electrical work, for help with the electrical 

work in the barn. Through a bartering arrangement, Pfafman agreed to help 

Diehm. Diehm, who had previously worked as a general contractor and 

developer, assisted Pfafman with some aspects of the electrical work in the 

barn. Diehm began the work by himself when he “ran the trenching and got all 

the electrical to the barn.” Tr. at 702. Diehm did “80 to 90 percent” of the 

electrical work in the new barn by himself. Id. at 954. Pfafman then “set the 

panel” and installed the lights. Id. at 702.

[3] In particular, Pfafman: purchased and installed a service panel box and circuit 

breakers for the barn; connected the panel box to the power line running to the 

barn from an old barn; installed junction boxes in the barn; installed a ground 

 

1

 We heard oral argument in this case on November 21, 2016.

2

 The barn is also referred to as a hay barn.
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wire and ground rod3; installed electrical switches, including ground fault circuit

interrupter (“GFCI” or “GFI”) plugs; and installed all of the electrical 

connections. At that time, in 2004, Diehm did not need electricity to run to two 

water troughs located in the barn, but “he wanted wires run back” to the 

troughs in the event that he would install de-icing units (“de-icers”) for the 

troughs at some time in the future. Id. at 485. Accordingly, Pfafman installed 

“a ten-foot piece of pigtail that [he] rolled up and taped and fastened” in a 

junction box.4 Id. at 488. Pfafman told Diehm that the pigtail “wasn’t GFI[-

]protected and it should [be] GFCI protected before [doing] anything down in 

there.” Id. at 485.

[4] In 2007, Diehm, without consulting Pfafman or requesting help, purchased and 

installed de-icers for the water troughs in the barn. The instruction booklets for 

the de-icers stated in relevant part that, when installing the de-icers, “a qualified 

electrician [shall] install a properly grounded receptacle outlet” to the heater. 

Id. at 249. Despite that instruction, and despite Pfafman’s instructions in 2004 

that Diehm would have to install GFCI protection if he ever installed de-icers, 

Diehm did not install GFCI protection for the de-icers. Diehm also reversed 

the positive and negative wiring to one of the connectors to the de-icers. And 

Diehm left the de-icers in the troughs and plugged in year-round, contrary to 

the instruction on the de-icers’ labels, which stated that they should be “store[d] 

 

3

 Diehm confirmed that Pfafman grounded the panel box.

4

 The parties do not define “pigtail” in this context.
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indoors after [the] winter season,” and the written instructions for the de-icers, 

which stated that the units should be unplugged “when not in use or before 

removal from the tank.” Id. at 248, 250.

[5] During the evening of July 28, 2010, then sixteen-year-old Kole Craig was 

socializing with Diehm’s children at the Diehm home on the farm. A severe 

thunderstorm had passed through the area earlier that day, including “a really 

big strike” of lightning nearby. Id. at 137. In fact, at approximately 4:00 that 

afternoon, lightning struck a tree on the farm, and Diehm had noticed that the 

lightning strike “had burnt up an outlet or two in the kitchen.” Id. at 942. And 

at some point during the evening, Diehm’s daughter Lynn was in the house 

when her little brother Samuel told her that there was a dead heifer near the 

barn. Lynn decided to go check on the heifer, and Craig volunteered to go with 

her.

[6] Lynn and Craig made their way to the barn and went inside. They could see 

the heifer lying on the ground outside the “head gates” to the barn. Id. at 121. 

Lynn started to move towards the heifer, but Craig stopped her and told her 

that he would check on it. So Lynn backed up, and Craig “grabbed onto the 

head gate and was like leaning and he stopped.” Id. After a short time, Lynn 

noticed that Craig was not moving, and she asked him if he was okay. Craig 

did not respond, so Lynn touched him and felt a “vibration.” Id. at 122. Lynn 

soon realized that Craig was “getting shocked” and she “pulled him off” and 

“laid him down” on the ground. Id. Lynn saw blood coming out of Craig’s 

mouth, and Craig did not have a pulse. Lynn had “accidentally called” her 
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mom on her cell phone during that time, so Lynn’s mom heard everything and 

called 9-1-1. Id.

[7] Emergency medical technicians arrived and transported Craig to a hospital in 

Fort Wayne, and Craig was ultimately transported to Riley Hospital for 

Children in Indianapolis. Craig had sustained an electric shock, which caused 

him to go into “full cardiac arrest” and ventricular fibrillation.5 Id. at 149. As a 

result, Craig suffered a severe, permanent anoxic brain injury, and he was 

comatose for several days. Craig underwent months of therapy for cognitive, 

memory, executive functioning, and processing deficits.

[8] An investigation into what caused the electric shock revealed several factors 

that contributed to the short-circuiting of the de-icer and electrification of the 

head gates. A summary of the results of that investigation is as follows:

During the midafternoon of July 28, 2010, thunderstorms passed 

through Noble County, including over the Diehm farm. The 

Diehm farm experienced several lightning strikes, including one 

by a tree near the Diehm’s home. It was near that tree that the 

underground electrical service from the main service disconnect 

ran back to the old barn and from there branching out to other 

locations, including the feed barn. With the lightning strike, an 

electrical surge from the lightning passed through that electrical 

service and onto the feed barn. That power surge led to the deicer in the north waterer short[-]circuiting. The electrical surge 

caused the fine nichrome wire coil in the interior ring of the deicer to break apart with the electrical surge fusing the insulating 

magnesium oxide around the coil and that fused material 

provided a connection from the energized nichrome coil wire to 

 

5

 Ventricular fibrillation is when “the heart is quivering” but is not pumping blood in or out. Tr. at 150.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 6 of 34

the steel shroud of the heater. The shroud was connected to the 

ground wire within the de-icer’s power cord and, as Mr. Diehm 

had cross-wired the plug, the electrical current flowed back to the service 

panel box. Because Mr. Pfafman had not installed a bonding jumper at 

the service panel box, the electrical current did not flow to the breaker. 

Consequently, the breaker did not trip to de-energize the circuit. 

Instead, electrical current flowed to the panel box and ground 

wire and energized the metal feed barn, including the metal 

stanchion, which Kole Craig would eventually come to touch. In 

addition, because GFCI protection had not been installed on the deicer 

circuit, there was no GFCI plug or breaker in place that would have 

tripped with the short circuit and thereby de-energized the line. As a 

result, when Kole Craig accompanied Lynn Diehm to check on 

the dead steer, the feed barn and the metal stanchion were hot 

with electricity.

Appellees’ Br. at 20-21 (emphases added).

[9] Craig’s Estate filed a complaint against Pfafman, Farm Innovators,6 and 

Cooper Industries7 alleging negligence and product liability, respectively.8 

Craig’s Estate dismissed Cooper Industries prior to trial “due to a lack of 

evidence establishing liability.” Appellees’ Br. at 7. Craig’s Estate’s “claims 

against Farm Innovators were settled before trial.” Id. And, “[p]rior to suit 

being filed, a settlement was reached” with Diehm. Id.

 

6

 Farm Innovators manufactured the de-icer involved in the electric shock incident.

7

 Cooper Industries manufactured an electrical plug used to connect the de-icer.

8

 Neither of the parties has provided this court with a copy of the complaint or any amended complaints, and 

neither party states the date that the original complaint was filed. Accordingly, we glean what we can 

regarding the allegations in the complaint from the appellees’ brief. We note that the CCS does not indicate 

the date that the initial complaint was filed.
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[10] On November 2, 2015, a five-day jury trial began on Craig’s Estate’s claims 

against Pfafman. Craig’s Estate argued that Pfafman was negligent in the 

following ways: he failed to install a “bonding jumper”9 when he installed the 

service panel box in the barn, in violation of the National Electrical Code 

(“NEC”); he used “type NM wire”10 without placing it inside conduit, in 

violation of the NEC; and he failed to install GFCI protection to the lines 

placed for future use in the de-icers, in violation of the NEC. Pfafman’s Estate11

argued that Pfafman did not breach his duty of care to Craig and, in the 

alternative, that his alleged breach of duty was not a proximate cause of Craig’s 

injuries. In particular, Pfafman’s Estate named Diehm and Farm Innovators as 

non-parties and argued that the jury could find that any one of the breaches of 

duty by Diehm and Farm Innovators proximately caused Craig’s injuries, 

including: Diehm’s decision to install de-icers in 2007 without consulting 

Pfafman at that time; Diehm’s incorrect wiring of the de-icer that ultimately 

contributed to cause the short-circuit and the electric shock incident; Diehm’s 

failure to install GFCI protection to the de-icers despite the installation 

instructions and Pfafman’s previous instruction; Diehm’s failure to unplug and 

store the de-icers during the summer months; and a possible defect in the de-icer

 

9

 A bonding jumper is a steel bracket that was required to be installed in the three-wire service panel box for 

proper grounding.

10

 According to expert testimony, using type NM wire in a barn environment without protective conduit 

violates the National Electrical Code.

11

 Pfafman died prior to trial, but he had given a deposition in this case prior to his death.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 8 of 34

manufactured by Farm Innovators. The trial court instructed the jury in 

relevant part as follows:

Negligence is the failure to use reasonable care. A person may be 

negligent by acting or by failing to act. A person is negligent if he 

or she does something a reasonably careful person would not do 

in the same situation, or fails to do something a reasonably 

careful person would do in the same situation. A person’s 

conduct is legally responsible for causing an injury if: (1) the 

injury would not have occurred without the conduct, and (2) the 

injury was a natural, probable, and foreseeable result of the 

conduct. This is called a “responsible cause.” Sometimes an 

unrelated event breaks the connection between a defendant’s 

negligent action and the injury a plaintiff claims to have suffered. 

If this event was not reasonably foreseeable, it is called an 

“intervening cause.” When an intervening cause breaks the 

connection between a defendant’s negligent act and a plaintiff’s 

injury, a defendant’s negligent act is no longer a “responsible 

cause” of that plaintiff’s injury. A contractor is liable for injuries 

of third persons after acceptance by the property owner where the 

work is reasonably foreseeable to endanger third parties if an[d]

only if negligently completed by the contractor. An injury is 

foreseeable when a person should realize that his act or failure to 

act might cause that injury. A party who violates a building, 

electrical or other code is not automatically liable. . . . A 

defendant may identify as a “nonparty” any person the defendant 

claims was at fault and caused any or all of the plaintiff’s claimed 

damages. In this case, the Estate of Gary Pfafman (Pfafman) has 

named Roger Diehm as a non-party. Pfafman has the burden of 

proving by the greater weight of the evidence that Roger Diehm 

was at fault. Pfafman has also named Farm Innovators, Inc., as 

a non-party. . . . To decide if Kole Craig is entitled to recover 

damages from the Estate of Gary Pfafman, and, if so, the amount 

of those damages, [you must] apportion the fault of Gary 

Pfafman, Roger Diehm and Farm Innovators, Inc. on a 

percentage basis. Do this as follows: First, if Gary Pfafman is not 
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at fault, return your verdict for the Estate of Gary Pfafman and against 

Kole Craig, and deliberate no further. . . .

Tr. at 1114-24 (emphasis added).

[11] The jury entered a general verdict in favor of Pfafman’s Estate. Craig’s Estate

then filed a motion to correct error and for a new trial alleging that the verdict 

was against the weight of the evidence. Following a hearing, the trial court 

adopted, verbatim, Craig’s Estate’s proposed findings of fact and conclusions of 

law and granted the motion to correct error and ordered a new trial.12 The trial 

court found and concluded in part as follows:

II. Facts and Testimony Favorable to the Defense

A. In 2004, Mr. Diehm had informed Mr. Pfafman that Mr. 

Diehm might install deicers in the future if problems occurred 

with freezing water in the water troughs. Mr. Pfafman testified 

that he told Mr. Diehm that if Mr. Diehm did install deicers that 

Mr. Diehm would need to install [a] Ground-Fault Circuit 

Interrupter [on] for the deicers.

B. Three years after building the hay barn, Mr. Diehm installed 

deicers in the two water troughs in the hay barn. Farm 

Innovators, Inc., manufactured the deicers. When installing the 

deicer to the north water trough, Mr. Diehm incorrectly wired 

the Cooper manufactured electrical connector. The energized 

 

12

 While we acknowledge that the verbatim adoption of a party’s findings and conclusions leaves us with a 

lower level of confidence that the findings reflect the independent judgment of the trial court, we do not find 

that the trial court’s findings of fact and conclusions of law in this case are inherently suspect because they 

are verbatim reproductions of Craig’s Estate’s submission. See Kitchell v. Franklin, 26 N.E.3d 1050, 1058 (Ind. 

Ct. App. 2015), trans. denied.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 10 of 34

conductor was placed on the neutral terminal and the neutral 

conductor was placed on the energized terminal. This violated

the National Electric Code.

C. Mr. Diehm did not install a Ground-Fault Circuit Interrupter 

for the circuit to the deicers.

D. Mr. Diehm did not properly maintain and store the deicers, 

contrary to Farm Innovators’ instructions, including leaving the 

deicers in the waterers year-round and not cleaning the deicers.

E. Farm Innovators, Inc., like Roger Diehm, was named as a 

non-party defendant under the Indiana Comparative Fault Act 

by Pfafman. Farm Innovators, Inc., is a corporation organized 

and existing under the laws of Indiana and has its principal place 

of business in Plymouth, Indiana. Pfafman asserted the Farm 

Innovators’ deicers contained defects in manufacture, design, and 

warnings. Pfafman asserted the Farm Innovators’ deicer 

involved in the incident had an internal fault which contributed 

to the barn becoming energized. Pfafman offered the testimony 

of Elizabeth Buc and James Finneran to support this defect 

contention.

F. The defense contended at trial that Mr. Pfafman performed 

his electrical installation work at the Feed Barn as a favor for his 

brother-in-law, Roger Diehm, and that Pfafman’s work was only 

to supply lights at the Feed Barn.

G. Pfafman was not aware of Roger Diehm’s installation of the 

deicers at the Feed Barn in approximate[ly] 2007.

H. Roger Diehm form[er]ly operated a residential and 

commercial construction business.

I. The lightning strikes at the Diehm farm were a cause of the 

deicer to malfunction. A lightning strike triggered the shortcircuiting of the deicer in question.
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III. Facts and Testimony Supporting the Grant of a New Trial — That 

Gary Pfafman Was Negligent and Liable.

A. Michael Franks. Mr. Franks has been a licensed electrician 

since 1972. Mr. Franks was called to the farm by Roger Diehm 

after Kole Craig’s electrical shock. Mr. Franks discovered the 

absence of a bonding jumper in the panel box at the Feed Barn 

and he was the one who installed the copper wire to serve as a 

bonding jumper connecting the ground bar to the neutral bar.

1. He testified that the electrical work at the Feed Barn should 

have been completed by Pfafman in compliance with the NEC. 

He testified that a main bonding jumper is required by the 

National Electrical Code and that connecting the bonding jumper 

is the most important connection any electrician can make to the 

service panel.

2. Mr. Franks indicated that had the bonding jumper been in 

place the circuit breaker would have blown as soon as the deicer 

shorted. The Feed Barn structure would have deenergized 

immediately with the circuit being broken and Kole would not 

have been shocked. He indicated that without the bonding 

jumper the hay barn was not properly grounded. He stated

that without the bonding jumper the electrical service panel was 

an accident waiting to happen — the building would become 

“hot” with any short circuit event.

3. Mr. Franks testified that had Mr. Pfafman installed a GFCI 

circuit breaker that too would have prevented Kole’s electric 

shock incident. The NEC requires the installing electrician, here 

Mr. Pfafman, to place either a GFCI circuit breaker or GFCI 

plug on the circuit going out to the waterers. With the short 

circuit in the deicer, such GFCI protection would have 

immediately tripped, deenergizing the building and preventing 

the electric shock event to Kole.
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4. He testified that even though Mr. Diehm had mis-wired the 

outlet plug, the presence of the bonding jumper would have 

prevented the incident as the short circuit would have blown the 

breaker. He testified that the ultimate safety guard in an 

electrical panel box is the bonding jumper.[13]

* * *

V. Conclusions of Law and Ruling That a New Trial Should Be 

Granted

A. The verdict was against the weight of the evidence in that the 

evidence showed Gary Pfafman violated the NEC and was 

negligent in failing to install a bonding jumper in the service 

panel box at and for the Feed Barn.

B. The verdict was against the weight of the evidence in that the 

evidence showed that had Mr. Pfafman installed a bonding 

jumper, Kole Craig would not have been shocked as the short 

circuit with the deicer would have caused the circuit breaker to 

blow and such would have deenergized the Feed Barn structure.

C. The verdict was against the weight of the evidence in that the 

evidence showed Gary Pfafman violated the NEC and was 

negligent in failing to install GFCI protection to the circuit going 

out to the waterers. It was a violation of the NEC and negligent 

for Mr. Pfafman to leave his work at the Feed Barn with a taped 

end, 10 foot coiled wire left hanging from the support beam 

above the waterer. It was similarly a violation of the NEC for 

Mr. Pfafman to leave his completed installation work at the Feed 

 

13

 The trial court’s findings also include synopses of the testimony of several other experts and other 

witnesses at the trial, but the substance of each of those synopses is similar to that regarding Franks’ 

testimony. The bottom line is that there was a great deal of expert witness testimony supporting Craig’s 

Estate’s contention that Pfafman breached his duty of care to Craig and that his breaches of duty proximately 

caused Craig’s injuries.
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Barn with no GFCI protection installed on the circuit going to 

the waterers, when that circuit was in an outdoor, wet 

environment and for a water application — a deicer for a 

waterer.

D. The verdict was against the weight of the evidence in that the 

evidence showed that had Mr. Pfafman installed GFCI 

protection, either a GFCI breaker or a GFCI plug, on the circuit 

going out to the water[er]s, Kole Craig would not have been 

shocked. The short circuit with the deicer would have caused 

such GFCI protection to trip and instantaneously deenergized 

the Feed Barn structure.

E. The verdict was against the weight of the evidence in that the 

evidence showed elements of cause and proximate cause were 

proven by the plaintiffs. Under Indiana law, a negligent 

defendant is liable for a plaintiff’s injury if his or her actions were 

a proximate cause of that injury. Our Indiana Supreme Court 

has stated that a “negligent act is the proximate cause of an injury

if the injury is a natural and probable consequence, which in the 

light of the circumstances, should have been foreseen or 

anticipated.” Bader v. Johnson,732 N.E.2d 1212, 1218 (Ind. 2000) 

(emphasis added). As a result, “liability may not be imposed on 

an original negligent actor who sets into motion a chain of events 

if the ultimate injury was not reasonably foreseeable as the 

natural and probable consequence of the act or omission.” 

Control Techniques, Inc. v. Johnson,762 N.E.2d 104, 108 (Ind. 

2002). In addition, since enactment of Indiana’s Comparative 

Fault Act, the Indiana Supreme Court has expressed that that 

doctrine of “superseding cause has been essentially swallowed up 

by the general definition of proximate cause. The court wrote:

In capsule form, we conclude that the doctrines of 

causation and foreseeability impose the same 

limitations on liability as the “superseding cause” 

doctrine. Causation limits a negligent actor’s liability 

to foreseeable consequences. A superseding cause is, 
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by definition, one that is not reasonably foreseeable. 

As a result, the doctrine in today’s world adds 

nothing to the requirement of foreseeability that is 

not already inherent in the requirement of causation.

Control Techniques, Inc. v. Johnson,762 N.E.2d 104, 108 (Ind. 

2002). More specifically, as to superseding cause, the Indiana 

Supreme Court has indicated that the inquiry turns on whether 

the “injury” or “harm” could have been reasonably foreseen by 

the original negligent actor.

A subsequent act is “superseding” when the harm 

resulting from the original negligent act “could not 

have reasonably been foreseen by the original 

negligent actor.” Vernon v. Kroger Co., 712 N.E.2d 

976, 981 (Ind. 1999) (quoting Hooks SuperX, Inc. v. 

McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994)).

See Control Techniques, 762 N.E.2d [at] 107. . . .

F. The verdict was against the weight of the evidence in that the 

evidence showed it was reasonably foreseeable someone would 

be shocked because Gary Pfafman failed to properly ground the 

Feed Barn. Pfafman knew and acknowledged that Diehm 

intended to use the taped pigtail Pfafman left to connect a deicer 

for use in the waterer. The reasonably foreseeable “harm 

resulting from the original negligent act” remained the same. 

That was of injury due to an electric shock because of improper 

grounding. Roger Diehm’s conduct and the claimed defect with the 

Farm Innovator’s deicer were not a superseding cause(s), as defined by 

Indiana case law. They were acts to be considered by the jury with 

respect to the issue of comparative fault.

G. The verdict was against the weight of the evidence in that the 

evidence showed Gary Pfafman’s conduct was the essential cause 

for Kole Craig to have suffered the electric shock and his injuries. 

It was only because Gary Pfafman failed to install a bonding jumper in 
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the panel box and failed to install GFCI protection on the circuit going to 

the waterer that Kole Craig was shocked. Had Gary Pfafman done 

either of these things, as were required by the NEC, and 

regardless of the claimed negligent conduct of Diehm and Farm 

Innovators, Kole Craig would not have been shocked.

H. The verdict was against the weight of the evidence in that the 

evidence did not show it was justifiable or excusable for Mr. 

Pfafman not to comply with the NEC in performing his work at 

the Feed Barn. There was no expert testimony offered by the 

defense or by the plaintiff indicating that Mr. Pfafman should be 

excused under the circumstances from complying with the NEC. 

Neither was there any lay testimony offered for justification or 

excuse for Mr. Pfafman not to comply with the NEC.

I. The verdict was against the weight of the evidence regarding 

the circumstances under which Mr. Pfafman performed his work 

at the Feed Barn. Mr. Pfafman testified he performed his work at 

the Feed Barn as part of his P & S Electrical business. . . .

J. The verdict was against the weight of the evidence as to the 

contention that Pfafman only installed the “lighting” in the Feed 

Barn. Gary Pfafman testified that he installed the panel box, all 

the junction boxes, the GFCI plugs on the west wall of the Feed 

Barn and did all the connecting work of the wires to those 

locations. He also installed the ground rod and its connections to 

the panel box, and he installed the “pigtail” which he left 

hanging on the support beam above the waterer. . . .

K. The evidence favorable to the defense, discussed in Section II, 

above, is insufficient to support the jury’s verdict.

L. The plaintiffs did not waive their right to a new trial by not 

moving for a directed verdict as to Pfafman and not objecting to 

Verdict Form A in light of the fact that Pfafman had raised 

comparative fault allegations as to Roger Diehm and Farm 

Innovators. Pfafman would have been unfairly prejudiced by an 
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instruction to the jury that the court had found Pfafman at fault 

as a matter of law and by a verdict form indicating that the jury 

had to find fault as to Pfafman in light of the directed verdict. 

Moreover, even if it could be said that there was a waiver by 

plaintiffs, the court retains the authority to grant a new trial 

where the evidence does not support the verdict, as is the case 

here.

THEREFORE, based upon the foregoing facts and authorities, 

the Court hereby, ORDERS, ADJUDGES AND DECREES 

that the Plaintiffs’ Motion to Correct Error and Motion for New 

Trial BE GRANTED.

Appellant’s App. at 30-54 (some emphases original). This appeal ensued.

Discussion and Decision 

Overview

[12] “In order to prevail on a claim of negligence the plaintiff must show: (1) duty 

owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall 

below the applicable standard of care; and (3) compensable injury proximately 

caused by defendant’s breach of duty.” King v. Ne. Sec., Inc., 790 N.E.2d 474, 

484 (Ind. 2003). Here, at trial, the parties agreed that Pfafman owed Craig a 

duty of care, and the only questions presented to the jury were: whether 

Pfafman breached his duty and, if so, whether his breach proximately caused

Craig’s injuries; and whether any fault should be allocated to the named 

nonparties. The jury entered a general verdict in favor of Pfafman’s Estate, 

which means that the jury: found that Pfafman did not breach his duty of care; 

found that Pfafman’s breach did not proximately cause Craig’s injuries; or 
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allocated 100% fault to one or both of the nonparties. The crux of the issue on 

appeal is whether the jury’s verdict is clearly erroneous as contrary to or not 

supported by the evidence.

[13] In granting Craig’s Estate’s motion for a new trial, the trial court concluded 

that, as a matter of law, Pfafman breached his duty of care to Craig and that 

that breach proximately caused Craig’s injuries. Indeed, the trial court found 

that the only reason Craig was injured was because of Pfafman’s breach of duty. 

Nevertheless, the trial court also stated that, under the Comparative Fault Act 

(“the Act”), the jury might allocate some fault to the nonparties,14 Diehm and 

Farm Innovators. Accordingly, rather than entering a directed verdict in favor 

of Craig’s Estate, the trial court ordered a new trial.

[14] We hold that the trial court’s findings and conclusions are insufficient under 

Trial Rule 59(J). In particular, the trial court did not relate the evidence of the 

nonparties’ negligence to the issue of comparative fault under the Act, but

erroneously concluded that Pfafman’s conduct was the sole cause of Craig’s 

injuries. And the trial court did not address the possibility that the jury

allocated 100% fault to Diehm and/or Farm Innovators despite the lack of an 

intervening cause. Accordingly, we reverse.

 

14

 A nonparty is “a person who caused or contributed to cause the alleged injury, death, or damage to 

property but who has not been joined in the action as a defendant.” Ind. Code § 34-6-2-88 (2016).
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 18 of 34

Trial Rule 59(J)

[15] Our supreme court has explained our standard of review and the trial court’s 

obligations under Trial Rule 59 as follows:

As a general matter, a decision to grant a new trial (often called 

“acting as the thirteenth juror”) is reviewed for an abuse of 

discretion, and the trial court’s decision is given a strong 

presumption of correctness. Weida v. Kegarise, 849 N.E.2d 1147 

(Ind. 2006); see also Lake Mortg. Co. v. Federal Nat’l Mortg. Ass’n, 262 

Ind. 601, 321 N.E.2d 556 (1975). The strong presumption of correctness 

only arises if the court’s decision is supported by the special findings required 

by Trial Rule 59(J). . . .

Indiana Trial Rule 59(J) authorizes trial courts to grant new trials to 

correct an error in prior proceedings. In all cases where relief is 

granted, the court is required to “specify the general reasons” for 

granting relief. Setting aside a jury’s verdict and granting a new trial 

is not to be done lightly, thus Rule 59(J) requires that, when granting 

a new trial because the verdict does not accord with the evidence, 

judges must

make special findings of fact upon each material issue 

or element of the claim or defense upon which a new 

trial is granted. Such finding shall indicate whether 

the decision is against the weight of the evidence or 

whether it is clearly erroneous as contrary to or not 

supported by the evidence; if the decision is found to be 

against the weight of the evidence, the findings shall relate the 

supporting and opposing evidence to each issue upon which a 

new trial is granted; if the decision is found to be clearly 

erroneous as contrary to or not supported by the 

evidence, the findings shall show why the judgment 

was not entered upon the evidence.

Ind. Trial Rule 59(J).

We have long held that strict compliance with the substantive and 

procedural requirements of Trial Rule 59(J) is of “paramount” 

importance. Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 265 

Ind. 457, 464, 358 N.E.2d 974, 978 (1976). Specific findings are 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 19 of 34

necessary to temper the use of the “extraordinary and extreme” 

power to overturn a jury’s verdict by assuring that the decision is 

based on a complete analysis of the law and facts. Id. at 464-65, 358 

N.E.2d at 978. In Weida v. Kegarise, we explained that the most 

important reason for Rule 59(J)’s “arduous and time-consuming 

requirements,” Nissen, 265 Ind. at 464-65, 358 N.E.2d at 978, is “to 

assure the public that the justice system is safe not only from 

capricious or malicious juries, but also from usurpation by 

unrestrained judges.” Weida, 849 N.E.2d at 1153. In other words, 

when a “court overrides the jury in its special domain and 

substitutes its own verdict for theirs without a clear showing that the 

ends of justice required it, it is likely that they did not.” State v. 

White, 474 N.E.2d 995, 1000 (Ind. 1985). When a court grants a 

new trial without making the specific findings, the remedy on 

appeal is to reinstate the jury verdict. Weida, 849 N.E.2d 1147.

Walker v. Pullen, 943 N.E.2d 349, 351-52 (Ind. 2011) (emphases added; footnote 

omitted).

[16] Here, although the trial court at one point concluded that the evidence was 

“insufficient to support the jury’s verdict,” it is clear from its multiple 

pronouncements about weighing the evidence that the court was acting as a 

thirteenth juror and determined the jury’s decision to be against the weight of 

the evidence. See Santelli v. Rahmatullah, 993 N.E.2d 167, 175 (Ind. 2013). The

trial court was thus bound under Trial Rule 59(J) to “relate the supporting and 

opposing evidence to each issue upon which a new trial is granted.” See id.

[17] Pfafman’s Estate contends that the trial court’s findings and conclusions are 

insufficient under Trial Rule 59(J) because they are not based on “a complete 

analysis of the law and facts” and do not make “a clear showing that the ends 

of justice required” that the verdict be set aside. Appellant’s Br. at 20. We 

must agree.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 20 of 34

[18] The trial court’s findings and conclusions are insufficient for two reasons. First, 

the trial court did not relate the evidence of the nonparties’ negligence to the 

issue of comparative fault under the Act, but erroneously concluded that 

Pfafman’s conduct was the sole cause of Craig’s injuries. Specifically, the trial 

court concluded that “Roger Diehm’s conduct and the claimed defect with the 

Farm Innovator’s deicer were not a superseding cause(s), as defined by Indiana 

case law. They were acts to be considered by the jury with respect to the issue 

of comparative fault.” Appellant’s App. at 52. And the trial court also 

concluded that “[i]t was only because Gary Pfafman failed to install a bonding 

jumper in the panel box and failed to install GFCI protection on the circuit 

going to the waterer that Kole Craig was shocked.” Id. (emphasis added). 

These conclusions demonstrate that, not only did the trial court ignore the 

significant evidence of Diehm’s and Farm Innovator’s negligence, but it 

erroneously concluded that Pfafman’s conduct was the only but-for cause of 

Craig’s injuries. Thus, the trial court did not sufficiently relate the evidence of 

the nonparties’ negligent conduct to the issue of comparative fault under the 

Act.

[19] Second, the trial court did not consider the possibility that the jury allocated 

100% fault to one or both of the nonparties despite the lack of an intervening 

cause.

15

 In Green v. Ford Motor Co., 942 N.E.2d 791, 794-96 (Ind. 2011), our 

 

15

 In its brief on appeal, Pfafman’s Estate points out that the trial court’s “use of ‘superseding’ cause [in its 

order] is inconsistent with the jury instruction to which [Craig’s Estate] did not object.” Appellant’s Br. at 26 

n.3. And we note that the jury instruction on intervening cause is contrary to law. Our supreme court has 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 21 of 34

supreme court explained the jury’s role in the allocation of fault under the Act 

as follows: 

The appropriate considerations in determining comparative fault 

are primarily established by statute. The statutory definition of 

“fault” provides:

(a) “Fault,” for purposes of [the Indiana Product 

Liability Act], means an act or omission that is 

negligent, willful, wanton, reckless, or intentional 

toward the person or property of others. The term 

includes the following:

(1) Unreasonable failure to avoid an 

injury or to mitigate damages.

(2) A finding under IC 34-20-2 . . . that a 

person is subject to liability for physical 

harm caused by a product, 

notwithstanding the lack of negligence 

 

held that a subsequent act is intervening or “superseding” when the harm resulting from the original 

negligent act “could not have reasonably been foreseen by the original negligent actor.” Control Techniques, 

762 N.E.2d at 107. Thus, here, the question on the issue of intervening cause should have been whether the 

harm of electric shock was reasonably foreseeable to Pfafman when he failed to install either a bonding 

jumper or GFI protection. But the jury was instructed in relevant part as follows:

Sometimes an unrelated event breaks the connection between a defendant’s negligent action 

and the injury a plaintiff claims to have suffered. If this event was not reasonably foreseeable, it 

is called an “intervening cause.” When an intervening cause breaks the connection 

between a defendant’s negligent act and a plaintiff’s injury, a defendant’s negligent act is no 

longer a “responsible cause” of that plaintiff’s injury.

Tr. at 1115 (emphases added). In other words, the jury was not asked to determine whether, in 2004, 

Pfafman could have reasonably foreseen the harm of electric shock, but whether he could have reasonably 

foreseen subsequent events such as Diehm’s failure to install GFI protection, miswiring of a connector, and 

leaving the heaters in the water troughs during the summer months. Craig’s Estate did not object to the 

instruction, and it maintains on appeal that the instruction was “proper.” Appellee’s Br. at 46 n.8. Thus, 

Craig’s Estate has waived for appellate review any challenge to the instruction.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 22 of 34

or willful, wanton, or reckless conduct 

by the manufacturer or seller.

(b) “Fault,” for purposes of [the Indiana Comparative 

Fault Act], includes 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. In evaluating and allocating comparative 

fault, a jury may also consider “the relative degree of causation 

attributable among the responsible actors.” Paragon Family Restaurant 

v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Our statutory 

scheme thus allows a diverse array of factors to be considered in 

the allocation of comparative fault. “The process by which a jury 

analyzes the evidence, reconciles the views of its members, and reaches a 

unanimous decision is inherently subjective and is entitled to maximum 

deference. The Comparative Fault Act entrusts the allocation of fault to 

the sound judgment of the fact-finder.” Id.

In both the Product Liability Act and the Comparative Fault Act, 

the legislature employed expansive language to describe the 

breadth of causative conduct that may be considered in 

determining and allocating fault. Both enactments require 

consideration of the fault of all persons “who caused or contributed to 

cause” the harm. Ind. Code §§ 34-20-8-1(a), 34-51-2-7(b)(1), 34-51-

2-8(b)(1). We note that in prescribing the scope of such initial 

consideration, the legislature employed the phrase “caused or 

contributed to cause” instead of “proximately caused.” 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 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 23 of 34

Indiana comparative fault scheme. Control Techniques[,] 762 

N.E.2d [at] 109[.]

The legislature has thus directed that a broad range of potentially 

causative conduct initially may be considered by the fact-finder 

but that the jury may allocate comparative fault only to those 

actors whose fault was a proximate cause of the claimed injury. 

As explained in Control Techniques, “the jury is first required to 

decide whether an actor’s negligence was a proximate cause of 

the plaintiff’s injury.” Id. “Whether or not proximate cause 

exists is primarily a question of foreseeability.” Id. at 108. The 

fact-finder must evaluate whether the injury “is a natural and 

probable consequence, which in the light of the circumstances, 

should have been foreseen or anticipated.” Id. (quoting Bader v. 

Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000)). Fault may not be 

imposed “on an original negligent actor who sets into motion a 

chain of events if the ultimate injury was not reasonably 

foreseeable as the natural and probable consequence of the act or 

omission.” Id. The determination and allocation of each party’s 

proportionate fault “is a question for the trier of fact, except 

where there is no dispute in the evidence and the fact finder 

could come to only one conclusion.” Walters v. Dean, 497 N.E.2d 

247, 254 (Ind. Ct. App. 1986) (internal citations omitted).

* * *

The fact-finder may allocate as comparative fault only such fault 

that it finds to have been a proximate cause of the claimed 

injuries. And if the fault of more than one actor is found to have been a 

proximate cause of the claimed injuries, the fact-finder, in its allocation of 

comparative fault, may consider the relative degree of proximate 

causation attributable to each of the responsible actors.

(Emphases added). Put another way, “[u]nder comparative fault, the trier of 

fact can allocate fault to multiple contributing factors based on their relative 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 24 of 34

factual causation, relative culpability, or some combination of both.” City of 

Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1244 (Ind. 2003). 

[20] The Act provides that the trial court shall instruct the jury on the allocation of 

fault as follows:

The jury shall determine the percentage of fault of the claimant, 

of the defendant, and of any person who is a nonparty. . . . In 

assessing percentage of fault, the jury shall consider the fault of all 

persons who caused or contributed to cause the alleged injury, . . .

regardless of whether the person was or could have been named 

as a party. The percentage of fault of parties to the action may total less 

than one hundred percent (100%) if the jury finds that fault contributing 

to cause the claimant’s loss has also come from a nonparty or nonparties.

I.C. § 34-51-2-7(b)(1) (2016) (emphases added).

[21] The first step in interpreting a statute is to determine whether the Legislature 

has spoken clearly and unambiguously on the point in question. City of Carmel 

v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). While the Act provides that a jury 

may allocate fault only “to those actors whose fault was a proximate cause of 

the claimed injury,” see Green, 942 N.E.2d at 795, the Act does not require that 

a jury allocate some fault to every actor who proximately caused the plaintiff’s 

injury. Rather, the Act permits the allocation of any percentage or no 

percentage of fault to a party or nonparty who caused or contributed to cause 

the injury.

[22] Again, Indiana Code Section 34-51-2-7(b)(1) provides in relevant part that, in 

assessing the percentage of fault, the jury “shall consider the fault of all persons 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 25 of 34

who caused or contributed to cause the alleged injury[.]” (Emphasis added). 

As our supreme court has held, “[i]t is just as important to recognize what the 

statute does not say as it is to recognize what it does say.” State v. Dugan, 793 

N.E.2d 1034, 1036 (Ind. 2003). The statute does not say that the jury shall

allocate fault to all persons who caused or contributed to cause the alleged 

injury. Rather, the jury shall merely consider a person’s fault in making that 

determination. Moreover, and significantly, the statute expressly permits a jury 

to allocate less than 100% fault to a party. Indiana Code Section 34-51-2-

7(b)(1) provides that the court “shall instruct the jury” that “[t]he percentage of 

fault of parties to the action may total less than one hundred percent (100%) if 

the jury finds that fault contributing to cause the claimant’s loss has also come 

from a nonparty or nonparties.” The legislature could have required that a 

minimum percentage of fault be allocated to a party under the statute, but it did 

not.

[23] “Fault,” as defined in the Act, is not synonymous with “proximate cause.” 

Rather, it is after a determination of proximate cause that a determination of 

fault is made under the Act. And the Act “entrusts the allocation of fault to the 

sound judgment of the fact-finder,” id. at 795, based on “the relative degree of 

causation attributable among the responsible actors.” Bartolini, 799 N.E.2d at 

1056. Here, Pfafman identified two nonparties, Diehm and Farm Innovators, 

and the jury heard evidence that Craig would not have been injured but for 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 26 of 34

Diehm’s conduct16 (namely, failing to install GFCI protection; miswiring the 

connector; and leaving the deicers in the troughs all summer) and/or Farm 

Innovators’ manufacture of a defective deicer. Accordingly, the trial court 

instructed the jury in relevant part as follows:

[Pfafman] has named Roger Diehm as a non-party. . . . Pfafman

has also named Farm Innovators, Inc., as a non-party. . . . To 

decide if Kole Craig is entitled to recover damages from the 

Estate of Gary Pfafman, and, if so, the amount of those damages, 

[you must] apportion the fault of Gary Pfafman, Roger Diehm 

and Farm Innovators, Inc. on a percentage basis. Do this as 

follows: First, if Gary Pfafman is not at fault, return your verdict for 

the Estate of Gary Pfafman and against Kole Craig, and deliberate no 

further. . . .

Tr. at 1123 (emphasis added). Thus, the general verdict in favor of Pfafman’s 

Estate indicates either, first, that the jury found that Pfafman was not negligent 

or second, that, despite Pfafman’s negligence, the jury allocated 100% fault to 

Diehm and/or Farm Innovators based upon the relative degree of causation 

attributable to them. The trial court’s findings and conclusions do not 

adequately address the second possibility, and for that reason, they are 

insufficient under Trial Rule 59(J).

 

16

 The element of causation requires that the harm would not have occurred but for the defendant’s conduct. 

Topp v. Leffers, 838 N.E.2d 1027, 1032 (Ind. Ct. App. 2005), trans. denied. The “but for” analysis presupposes 

that, absent the tortious conduct, a plaintiff would have been spared suffering the claimed harm. Id.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 27 of 34

[24] In sum, despite its length,17 the trial court’s order omits any meaningful analysis 

of the evidence, including testimony by Craig’s Estate’s own expert witnesses, 

that Diehm and Farm Innovators proximately caused Craig’s injuries. While 

the trial court’s findings include a list of some of that evidence regarding the 

nonparties’ negligence, the court did not explain in its conclusions why that 

evidence would not support a jury’s allocation of fault to one or both of the 

nonparties with none to Pfafman’s Estate. We hold that the trial court’s 

findings and conclusions are not based on a complete analysis of the law and 

facts, see T.R. 59(J), and the court did not make “a clear showing that the ends 

of justice required” a new trial. Walker, 943 N.E.2d at 352. When a court 

grants a new trial without making sufficiently specific findings, the remedy on 

appeal is to reinstate the jury verdict. Id. at 353. Because the trial court’s 

findings are insufficient here, we reinstate the jury’s verdict.

Conclusion

[25] The trial court’s findings and conclusions in granting Craig’s Estate’s motion 

for a new trial are insufficient under Trial Rule 59(J). The trial court did not 

relate the evidence of the nonparties’ negligence to the issue of comparative 

fault under the Act, but erroneously concluded that Pfafman’s conduct was the 

sole cause of Craig’s injuries. And the trial court did not address the possibility 

 

17

 Craig’s Estate appears to suggest that the length of the trial court’s order, without more, shows that it 

satisfies Trial Rule 59(J). And Craig’s Estate argues that, if we hold that the court’s order is insufficient, we 

would place an “impossible burden” on trial courts. Appellee’s Br. at 40. Craig’s Estate’s contention on this 

issue is without merit.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 28 of 34

that the jury allocated 100% fault to Diehm and/or Farm Innovators despite the 

lack of an intervening cause. Given the evidence that there were several but-for 

causes of Craig’s injuries attributable to the nonparties, the jury was entitled to 

allocate 100% fault to one or both of the nonparties and 0% to Pfafman. 

Accordingly, we reverse the trial court’s order and reinstate the jury’s verdict in 

favor of Pfafman’s Estate.

[26] Reversed.

Vaidik, C.J., concurs in result with separate opinion.

Baker, J., concurs.
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 29 of 34

I N T H E

COURT OF APPEALS OF INDIANA

The Estate of Gary Pfafman,

Appellant-Defendant,

v.

Lori Lancaster, Individually, and 

as Guardian of the Estate of 

Kole Craig,

Appellee-Plaintiff.

Court of Appeals Case No.

57A03-1603-CC-516

Vaidik, Chief Judge, concurring in result.

[27] The trial court erred in finding as a matter of law that Pfafman proximately 

caused Craig’s injuries. Therefore, I concur in the result and would reinstate 

the jury’s verdict. But, I respectfully disagree with the majority that a jury is 

allowed to find an actor proximately caused an injury, yet decline to allocate a 

percentage of fault to that actor. 

[28] Proximate cause is a question of foreseeability, a question that must be 

answered by the fact-finder—in this case, the jury not the court. “A negligent 

act is said to be the proximate cause of an injury ‘if the injury is a natural and 

probable consequence, which in the light of the circumstances, should have 

been foreseen or anticipated.’” Paragon Family Rest. v. Bartolini, 799 N.E.2d 

1048, 1054 (Ind. 2003) (quoting Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 30 of 34

2000)). “Proximate cause requires, at a minimum, that the harm would not 

have occurred but for the defendant’s conduct.” Bader, 732 N.E.2d at 1218. 

Even then, however, “liability may not be imposed on an original negligent 

actor who set into motion a chain of events if the ultimate injury was not 

reasonably foreseeable as the natural and probable consequences of the act or 

omission.” Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind. 2002). 

“A subsequent act is superseding when the harm resulting from the original 

negligent act could not have reasonably been foreseen by the original negligent 

actor.” Id. at 107. Whether the ultimate injury is reasonably foreseeable “such 

that liability may be imposed on the original [actor]” is a matter for the jury to 

consider in allocating fault. Id. 

[29] There was plenty of evidence for the jury to find that the acts of Diehm and 

Farm Innovators were superseding, cutting off Pfafman from liability. In 

particular: (1) Diehm did not install GFCI protection for the de-icers despite 

warnings from Pfafman and the instruction manual that accompanied the deicers; (2) Diehm ignored the instruction manual and did not have an electrician 

install the de-icers; (3) Diehm miswired the de-icer that short circuited; (4) 

Diehm ignored the instruction manual and kept the de-icers plugged in during 

the summer months; and (5) the de-icer that short circuited had a 

manufacturing defect when it left Farm Innovators’ facility. Based on this 

evidence, the jury could find that these subsequent acts were superseding—that 

Pfafman’s actions did not proximately cause Craig’s injuries. Put differently, 

given these circumstances, the issue of proximate cause and foreseeability of 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 31 of 34

injury was the jury’s call. On this basis alone, I would reverse the trial court 

and reinstate the jury’s verdict.

[30] I disagree with the majority when it says that even assuming there were no 

intervening causes to cut off Pfafman’s liability, the jury was entitled to allocate 

0% fault to Pfafman and 100% to the nonparties. See slip op. at 27-28. In other 

words, the majority concludes that even if the jury found that Pfafman was a 

proximate cause of Craig’s injury, it was permitted to allocate no fault to him. 

The majority reaches its conclusion based on our Supreme Court’s holding in 

Green. The Court said in Green that “the jury may allocate comparative fault 

only to those actors whose fault was a proximate cause of the claimed injury.” 

942 N.E.2d at 795 (emphases added). Thus, liability cannot be allocated to 

those who do not proximately cause an injury. This does not mean that after 

the jury has determined which actors have proximately caused the injury, it can 

then decide which of those responsible actors it wants to allocate fault.

[31] Instead, Green stands for the proposition that a percentage of fault is allocated to 

all actors whose conduct proximately caused the injury.18 When multiple actors 

are alleged to have proximately caused the plaintiff’s injuries, the fact-finder 

must apply a two-step analysis to determine and allocate fault. This process is 

 

18 I agree with the majority that in some cases determining fault under the Comparative Fault Act requires 

more than a proximate-cause inquiry. In particular, fault also includes “assumption of risk” by a plaintiff, 

“incurred risk” by a plaintiff, and a plaintiff’s “failure to avoid an injury or to mitigate damages” before the 

accident or initial injury. Ind. Code § 34-6-2-45; see Kocher v. Getz, 824 N.E.2d 671, 674 (Ind. 2005). Since 

none of these circumstances of fault occurred here and there is no issue of duty, breach of duty, or damages, 

fault is synonymous with proximate cause in this case. 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 32 of 34

outlined in Green: “And if the fault of more than one actor is found to have been 

a proximate cause of the claimed injuries, the fact-finder, in its allocation of 

comparative fault, may consider the relative degree of proximate causation 

attributable to each of the responsible actors.” Id. at 796 (emphasis added). In 

other words, the jury first has to determine what actors proximately caused an 

injury. Then step two requires the jury to allocate fault among all at-fault

actors. The total percentage of fault must equal 100%. See Shand Mining, Inc. v. 

Clay Cty. Bd. of Comm’rs, 671 N.E.2d 477, 479 (Ind. Ct. App. 1996) (“Under the 

CFA, a jury is charged with allocating 100 percent of the fault among all 

culpable parties and non-parties.”), reh’g denied, trans. denied; see also Kmart Corp. 

v. Englebright, 719 N.E.2d 1249, 1260 (Ind. Ct. App. 1999) (“Under the Act, the 

total fault for an accident is apportioned between the plaintiff, defendant, and 

any other negligent person who is properly named as a nonparty.”), trans. 

denied. Thus, once an actor is determined in step one to be a proximate cause of 

an injury, the jury must allocate a percentage of fault—even nominally so—to 

that actor. 

[32] In reaching a contrary conclusion, the majority relies in part on the portion of 

Indiana Code section 34-51-2-7(b)(1) that permits a jury to allocate less than 

100% to the parties if it finds that “fault contributing to cause the claimant’s loss 

has also come from a nonparty or nonparties.” See slip op. at 25. But I fail to 

see how this provision supports the majority’s holding that a jury can find that a 

party’s conduct was a proximate cause of the injury yet decline to allocate any 

of the fault to that party. In other words, the fact that a jury can allocate less 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 33 of 34

than 100% of the fault to an at-fault party in no way leads to the conclusion that 

the jury can simply choose to allocate 0% of the fault to that party. Nothing in 

Section 34-51-2-7(b)(1) allows a jury to free a responsible party—one who was a 

proximate cause of an injury—from liability for damages because of the 

“degree” of his causation in relation to other responsible parties. 

[33] The majority’s approach raises a number of difficult questions. Could a verdict 

ever be against the weight of the evidence where, as here, the plaintiff bears no 

fault but there are multiple at-fault actors? And if it could, how much relative 

causation of an actor is necessary to absolve another responsible actor from 

liability? Can an actor who is a proximate cause of an injury be relieved of a 

fault allocation when he is 10% at fault? 20%? 80%? What percentage of fault 

is forgivable among responsible actors? 

[34] One of the main purposes of the Act is to hold a negligent actor accountable for 

his percentage of fault. “[T]he Act did not change the standard for imposing 

liability. . . . [L]iability is to be apportioned among persons whose fault caused 

or contributed to causing the loss in proportion to their percentages of ‘fault’ as 

found by the jury.” Control Techniques, 762 N.E.2d at 109 (citing Ind. Code § 

34-51-2-8; Cahoon v. Cummings, 734 N.E.2d 535, 541 (Ind. 2000)). 

[35] Accordingly, I disagree with the majority that if Pfafman was a proximate cause 

of the injury to Craig, he may be relieved of liability “based upon the relative 

degree of causation attributable” to Diehm and Farm Innovators. However, I 
Court of Appeals of Indiana | Opinion 57A03-1603-CC-516 | January 18, 2017 Page 34 of 34

do believe that the evidence supports the jury’s verdict. As such, I concur in 

result only.