Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 1 of 25

ATTORNEYS FOR APPELLANT

Karl L. Mulvaney

Nana Quay Smith

Dentons Bingham Greenebaum LLP

Indianapolis, Indiana

James Ludlow

James F. Ludlow, Attorney at Law P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Edward F. Harney, Jr.

Erin M. Radefeld

Hume Smith Geddes Green & 

Simmons, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Judy Vigus, as the 

Administratrix of the Estate of 

Ruth C. Vigus and of the Estate 

of Eugene Vigus,

Appellant-Plaintiff,

v.

Dinner Theater of Indiana, L.P.,

Appellee-Defendant.

August 17, 2020

Court of Appeals Case No.

19A-CT-1365

Appeal from the Marion Superior 

Court

The Honorable Michael D. Keele, 

Special Judge

Trial Court Cause No.

49D07-1302-CT-6951

Najam, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 2 of 25

Statement of the Case

[1] Judy Vigus, as administratrix of the Estates of Ruth C. Vigus and Eugene Vigus

(“Vigus”), appeals the trial court’s judgment for Dinner Theater of Indiana, 

L.P. (“the Theater”) following a jury trial on Vigus’s complaint alleging 

negligence. Vigus raises two issues on appeal, which we restate as follows:

1. Whether the trial court erred when it revoked a pretrial 

order and did not instruct the jury that the Theater had 

made a judicial admission of a building code violation.

2. Whether the trial court abused its discretion when it 

denied Vigus’s attempt to admit into evidence statements 

the Theater’s owners had made after Ruth’s fall to seek a 

variance for the step’s height rather than reduce that 

height.

[2] We affirm.

Facts and Procedural History

[3] On August 30, 2012, Ruth and Eugene Vigus went to the Derby Dinner 

Playhouse in Clarksville. The Derby Dinner Playhouse offers customers a 

buffet dinner along with a live show. The Theater is the corporate owner of the 

Derby Dinner Playhouse, and the Theater is owned and operated by Rebecca 

Jo Saunders and Cynthia Knopp.

[4] That evening, Ruth and Eugene were seated at a table on a riser. The step up 

to, or down from, the table was approximately ten inches. Ruth and Eugene 

successfully went up the step to initially sit at the table, and Ruth successfully 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 3 of 25

got down from and back up the step in the course of visiting the buffet for 

herself and for Eugene. However, when they attempted to leave at the end of 

the show, Ruth fell off the step and broke her hip.

[5] Thereafter, Ruth sued the Theater for negligence, and Eugene sued for loss of 

consortium. During the course of the proceedings, both Ruth and Eugene died, 

and Vigus took over the suit as administratrix of their estates. Meanwhile, the 

Theater moved for a preliminary determination as a matter of law that a 

building code violation in the height of the step was not negligence per se. 

Specifically, the Theater sought a motion in limine “[p]recluding a negligence 

per se jury instruction for any potential Building Code . . . violation.” 

Appellant’s App. Vol. 2 at 124. Noting that Vigus had “no objection,” the 

court granted the Theater’s request. Id.

[6] In September of 2017, the trial court held a hearing on other pending motions

(“2017 hearing”). At that hearing, counsel for the Theater engaged the court in 

the following colloquy:

[Counsel for the Theater]: Our experts do not say that the step . . . as 

built, complies with any code . . . .

As designed, it did. It was designed for nine inches. It was built. 

It’s about nine and three-quarters or ten inches . . . . So we’re not 

even in a situation where we’re saying it complies with the 

Building Code . . . .

So we’re on the same page as to the existence of the Building Code 

violation as built and we agree on that, none of this other 

stuff . . . is relevant.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 4 of 25

THE COURT: Because the Building Code is . . . seven and-ahalf[,] is that right?

[Counsel for the Theater]: Well, . . . [t]heir expert will say seven 

and-a-half for a step.

THE COURT: Okay.

[Counsel for the Theater]: Our expert says nine inches for a riser.

THE COURT: Riser.

[Counsel for the Theater]: Which is why step and riser [are] 

different. . . .

* * *

. . . So . . . in any event, . . . it’s too tall as built. . . .

* * *

And on this violation issue and the Building Code violation, we 

don’t disagree that, as built, it[’s] evidence of negligence. . . .

* * *

I feel like I’m in the Twilight Zone with some of these things . . . . 

[Plaintiff’s counsel and I are] not communicating very well. I 

think I heard [plaintiff’s counsel] say that [the Theater says the 

ten-inch step] complies with the [local] Building Code, and I 

think I just said that that’s not the case. Our expert doesn’t say 

that because we can’t . . . . [The step] is ten inches. Evidence of 

negligence, certainly. We know that, but not [a] Building Code 

violation.

* * *
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 5 of 25

Plaintiff[s] say in their response, This evidence is fair to show the 

existence of [a] Building Code violation. Again, we don’t deny 

there’s a Building Code violation.

Tr. Vol. 2 at 149-51, 157-58 (emphases added).

[7] About one and one-half years later, on the day before the jury trial was to begin, 

Vigus moved to have the statements made by the Theater’s counsel at the 2017 

hearing declared to be a judicial admission that the step at issue was in violation 

of relevant building codes. In that motion, Vigus asked

that the Court issue an Order that conclusively finds that the step 

which allegedly caused Plaintiff’s injury was 10” in height, that 

this step was in violation of Indiana Building Code, that this 

evidence is conclusive, that Defendant cannot contradict these 

facts at any point throughout the trial, and for all further relief 

which is just and proper.

Appellant’s App. Vol. 9 at 61. In her motion, Vigus did not request a jury 

instruction on this issue. Within hours, the Theater filed a motion to strike 

denying that counsel for the Theater had “made such an admission under 

applicable Indiana law.” Appellant’s App. Vol. 9 at 108. On the same day, the 

trial court denied the Theater’s motion to strike and granted Vigus’s motion in 

part. The court found that “the step . . . was a violation of [the] applicable 

Indiana Building Code,” and it prohibited the Theater “from attempting to 

submit argument or evidence to contradict these conclusive facts.” Id. at 118. 

But in its order, the trial court struck the finding proposed by Vigus that the step 

“has been conclusively established as being 10” in height.” Id.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 6 of 25

[8] The next day, during voir dire, a prospective juror asked the Theater’s counsel, 

“Did you say . . . [the code] was indeed broken?” Tr. Vol. 3 at 104. The 

Theater’s counsel replied, “The code was broken. There will be evidence of a 

building code violation.” Id. (emphasis added). Then, immediately following voir 

dire, the court asked counsel for both sides how to proceed with the 

“stipulation” or the Theater’s “admission” on the building code violation. Id.

at 132. The following discussion ensued:

[Counsel for the Theater]: The admission . . . we will admit that 

there is a Building Code violation as to the step, as built, being 

higher than nine inches.

* * *

THE COURT: . . . Thank you. And that’s a stipulation?

[Counsel for the Theater]: Correct.

THE COURT: Thank you.

[Counsel for the Theater]: Well, it’s a ruling on your part.

THE COURT: I guess it is. That’s true. But I’m just, I guess, 

frankly surprised that it wasn’t by stipulation of the parties.

[Counsel for the Theater]: I think it’s just because there’s—it’s a 

bit semantic in terms of an expert would come in and say, you 

know, [“]Most of you would not get cited for that type of 

infraction,[”] but I can’t say it’s lower than nine inches as built.

THE COURT: Right. And that’s why I didn’t include—there 

was a proposed order saying about the height.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 7 of 25

[Counsel for the Theater]: Right.

THE COURT: We don’t...

[Counsel for the Theater]: That part we don’t dispute.

THE COURT: We don’t. Okay.

[Counsel for Vigus]: So the jury will be informed that this is a 

Building Code violation, that the step is . . .

THE COURT: Right.

[Counsel for Vigus]: The step in question is a Building Code 

violation?

THE COURT: That the step, as built...

[Counsel for the Theater]: Is higher than nine inches which is 

violative of the code.

THE COURT: Which is violative of the Building Code. 

Correct. And I just presumed—forgive me for presuming this—

that the parties, again, if not agreeing, then [Vigus] would mention, 

explain that.

[Counsel for the Theater]: Absolutely.

THE COURT: Right.

[Counsel for the Theater]: And we will explain nine inches and 

how it’s as built.

THE COURT: Absolutely.

[Counsel for the Theater]: Being violative. But the question 

though then becomes provided—because I—the way I read the 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 8 of 25

order was I can’t argue it’s not basically. So as long as I don’t say, 

[“]We didn’t violate [the] Building Code[”] . . .

THE COURT: Right.

* * *

[Counsel for Vigus]: Your Honor, I wanted to make clear that 

we’re not stipulating that the step should have been nine inches.

[Counsel for the Theater]: No. . . . Their expert is saying it’s 

seven and-a-half inches.

THE COURT: Right. We’re going to hear from experts with 

respect to that issue. . . .

Id. at 132-34 (emphases added).

[9] Vigus’s counsel then proceeded with his opening argument and informed the 

jury that 

there is no dispute there is a building code violation with this 

particular step, that is[,] the judge will instruct you that that is taken 

as a given. That is something that—we don’t need to prove it. 

It’s—you’ll be instructed that there is a building code violation.

Id. at 137 (emphases added). Thereafter, counsel for the Theater informed the 

jury in his opening argument that

[y]ou will hear evidence that [the step] was constructed according 

to plans in 1974. . . .
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 9 of 25

I will challenge Plaintiff’s expert, . . . who will come in and say 

that it’s seven inches[, t]hat’s what’s required. A step is required 

to be seven inches. Our expert will say differently. . . .

What you will hear from our expert from that perspective is that 

there was some plywood put on top, the carpeting put on top, 

and that gave it the nominal distance past the nine inches.

What you will not hear . . . is this idea that the judge is going to tell you 

that there was a building code violation. It’s not going to happen. It’s 

not going to be one of the instructions.

Id. at 156-57 (emphasis added).

[10] Vigus did not object to the Theater’s opening statement as inconsistent with the 

court’s pretrial order. Later, during her case-in-chief, Vigus’s expert, Lee 

Martin, testified that relevant building codes required the step to be seven and 

one-half inches, that the step at issue exceeded that, that that difference was 

contrary to the safety purposes underlying the code’s standard, and that the 

height of this step was the single most significant cause in Ruth’s fall. And 

Martin explicitly testified that “this is a Building Code violation” and added that it 

was also “a Fire Code violation.” Id. at 192 (emphasis added).

[11] During its ensuing case-in-chief, the Theater called its own expert witness, Greg 

Wisniewski. He testified that the building’s construction plan called for a nineinch riser, which was correct under the relevant code at that time, and that the 

building received a certificate of occupancy following its construction, which 

was evidence that the structure as built was “reasonably compliant

with . . . what the code requires.” Tr. Vol. 6 at 3. He also testified that a nine-
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 10 of 25

inch riser “complies with the current code,” which was likely “more stringent” 

than the code at the time of construction. Id. at 7-8. Regarding the riser from 

which Ruth fell, Wisniewski testified that it was in excess of nine inches by 

“some fraction,” i.e., seven-eighths of an inch, but it was not quite “ten inches” 

in height. Id. at 18. But he expressly acknowledged that the riser “exceeds the 

nine inches” that was called for in the construction plan. Id. According to 

Wisniewski, that difference was likely attributable to adding about one-half inch 

of plywood on top of the concrete and then adding about one-quarter-inch thick 

carpet to the plywood. Vigus did not object to Wisniewski’s testimony and, 

specifically, she did not object that any part of his testimony contradicted the 

trial court’s pretrial order on the Theater’s judicial admission.

[12] After Wisniewski’s testimony, the Theater asked the court to reconsider its 

pretrial order granting Vigus’s motion for the judicial admission and to deny the 

Theater’s motion to strike. The court responded as follows:

. . . After what I’ve heard from the experts, I don’t know if there’s 

a Building Code violation . . . and I won’t include an instruction that 

as built it’s a Building Code violation because I don’t know that.

* * *

. . . I think there’s a discrepancy. . . . I think you can argue 

respectively based on what your experts have testified to, about 

their research and their findings . . . .

The only reason I entered [that pretrial order] was because . . .

[counsel for the Theater] did, in fact, indicate that he believed

there was a Building Code violation.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 11 of 25

But, again, based on what I’ve heard from these experts, I don’t 

have a clue. I know what we do know and what the jury should 

understand is that these plans, as built, prepared by architects 

charged with that knowledge and responsibility and then getting 

the building authorities to review and approve, I mean, it was 

stamped, sealed[,] and then built . . . .

. . . I’m not comfortable with a judicial admission that there was a 

Building Code violation because I’ve not heard that.

Id. at 77-78 (emphases added). Vigus then stated that, “once that admission is 

made . . . , then that fact is taken as conclusively established . . . [e]ven if it’s 

wrong” and “contradictory evidence thereafter will not be considered . . . .” Id.

at 79.

[13] The court took the matter under advisement and, the next day, before it 

instructed the jury, returned to the topic of the Theater’s admission. The parties 

then engaged with the court as follows:

[Counsel for the Theater]: . . . [T]here w[ere] no repercussions as 

we were always contending the height was . . . it was undisputed 

what it was. We all knew it was nine and three-quarters.

THE COURT: Right.

[Counsel for the Theater]: We contended nine. They contended

seven. That was disputed.

THE COURT: Right. . . . But let me ask this. What wasn’t 

disputed is that the nine and three-quarters . . . close to ten is not 

in compliance with the approved plans submitted?

[Counsel for the Theater]: True. That’s true as built.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 12 of 25

THE COURT: Exactly. . . . As built. Because the plans

. . . called for nine inches?

[Counsel for the Theater]: Right.

THE COURT: So as constructed, not in compliance with 

approved building . . . plans.

[Counsel for the Theater]: Agreed. . . . [A]nd then Mr. 

Wisniewski explained why that would be the case . . . .

THE COURT: Well, right. We heard conflicting testimony 

from the experts. Yes[, g]entlemen?

[Counsel for Vigus]: Your Honor . . . the issue is that once a 

judicial admission is made, can it be taken back? There is . . . no 

dispute . . . that the step, as built, was not compliant with the plans.

THE COURT: Right. Everybody agrees with that. I agree with 

that. I can judicially admit that. I think the jury will understand 

that. They should understand that. As built . . . it doesn’t 

comply with the plans which called for nine inches.

[Counsel for Vigus]: Now, the question is . . . that [counsel for 

the Theater], in that [September 2017] hearing, did say . . . “We 

do not dispute that there’s a Building Code violation.” I believe 

that was the quoted language. . . . So there is a judicial 

admission. . . . [Case law] says that once that judicial admission 

is made, then evidence to contradict that cannot be considered or 

admitted. I think the Defense has . . . tried to submit evidence 

that basically says, Well, you know, okay. So it is an inch. . . . 

[B]ut that doesn’t take away the fact . . . that[ it is] still not built 

in accordance with the plans. So it is a Building Code violation 

because it’s not built according to the plans.

* * *
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 13 of 25

THE COURT: . . . [A] judicial admission is . . . a substitute for 

evidence at trial. We heard evidence and conflicting evidence 

from two experts with respect to that issue. I can’t find that it’s a 

Building Code violation. I can’t do that. So the motion to strike or 

vacate the order that was entered [the day before trial began] is granted. 

But, again, that doesn’t mean that there isn’t an 

admission . . . that, as built, . . . [the step] was not built in 

compliance with approved building plans . . . . And argue that 

and point that out because that’s, in fact, the case.

* * *

[Counsel for Vigus]: . . . [B]oth parties have told the jury—

[counsel for the Theater] said that—words to the effect . . . that 

there is a building code violation in his opening statement or Voir 

Dire. I said the same thing, . . . that[ t]he Court is going to tell 

you that there’s a building code violation based upon your 

current order . . . . So I’m trying to figure out . . . what’s the best 

way to not come across as a liar to the jury on that topic.

* * *

[Counsel for the Theater]: . . . [H]e did say, The judge is going to 

instruct you. I think that was a misinterpretation of . . . how you were 

going to handle the actual situation.

* * *

THE COURT: . . . I think the best way . . . is simply at this 

point emphasizing that . . . the structure, as built, does not 

comply with plans approved by all appropriate government

entities at the time because that’s not in dispute . . . .

[Counsel for Vigus]: Okay.

THE COURT: And I do see that in the revised proposed

finals—thank you. I didn’t see one but perhaps that was
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 14 of 25

anticipating how I might rule on the motion. But I see that you 

didn’t include an instruction as it relates to the judicial admission of a 

building code violation but instead have included some other language 

that I do think based on the evidence that we’ve heard is appropriate.

Tr. Vol. 7 at 33-41 (emphases added).

[14] The court then adopted Vigus’s Proposed Final Instruction Number 11 and 

instructed the jury in relevant part as follows: 

At the time of Ruth Vigus’[s] injury, there were certain Indiana 

Building Codes . . . and industry practices that [the Theater] was 

subject to . . . relat[ing] to the safe construction and maintenance 

of the building. You are to consider the violation of any Indiana 

Building Code . . . or industry practice as evidence of 

negligence . . . . 

Id. at 108; see Appellant’s App. Vol. 9 at 159. Vigus proposed no other 

instructions with respect to the Theater’s alleged judicial admission. And Vigus 

did not move the court for leave to recall any witnesses or otherwise submit 

additional evidence relevant to the building code violation. The jury returned a 

verdict for the Theater, and the court entered judgment for the Theater 

accordingly. This appeal ensued.

Discussion and Decision

Issue One: Judicial Admission

[15] Vigus first contends that the trial court erred when it revoked its pretrial order 

finding that the Theater had made a judicial admission on the question of a 

building code violation. It is well settled that a trial court may reconsider an 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 15 of 25

order or ruling if the action remains in fieri, or pending resolution. Lewis v. 

Toliver (In re Estate of Lewis), 123 N.E.3d 670, 673 (Ind. 2019). We review such 

reconsiderations for an abuse of discretion. Id. An abuse of discretion occurs 

when the court’s decision either clearly contravenes the logic and effect of the 

facts and circumstances or misinterprets the law. River Ridge Dev. Auth. v. 

Outfront Media, LLC, 146 N.E.3d 906, 912 (Ind. 2020).

[16] As this Court has explained,

[a] judicial admission “is an admission in a current pleading or 

made during the course of trial; it is conclusive upon the party 

making it and relieves the opposing party of the duty to present 

evidence on that issue.” Weinberger v. Boyer, 956 N.E.2d 1095, 

1105 (Ind. Ct. App. 2011), trans. denied. “Statements contained 

in a party’s pleadings may be taken as true as against the party 

without further controversy or proof.” Lutz v. Erie Ins. Exch., 848 

N.E.2d 675, 678 (Ind. 2006). “Opposing parties prepare their 

case on the assumption that facts admitted by other parties 

require no proof. For this scheme to work properly, parties must 

be entitled to rely on trial courts to treat admissions in pleadings 

as binding on the party making the admission.” Id.

Brazier v. Maple Lane Apts. I, LLC, 45 N.E.3d 442 (Ind. Ct. App. 2015), trans. 

denied. However, “[a] party must testify clearly and unequivocally to a fact 

peculiarly within his knowledge in order for it to be considered a judicial 

admission.” Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016). And 

this Court has held that where “‘there is ambiguity or doubt in a statement’” 

made by a party’s attorney, “‘it is presumed that the attorney did not intend to 

make an admission.’” Sans v. Monticello Ins. Co., 718 N.E.2d 814, 816 n.3 (Ind. 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 16 of 25

Ct. App. 1999) (quoting Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind. Ct. 

App. 1982)), trans. denied.

[17] In her brief on appeal, Vigus maintains that the Theater’s counsel’s statements 

during the 2017 hearing and during and immediately following voir dire, 

“individually and collectively, constituted a judicial admission that the step in 

question did not comply with the applicable building code.”1

 Appellant’s Br. at 

46. Whether a party’s statement constitutes a judicial admission is a question of 

law, which we review de novo. See Stewart, 53 N.E.3d at 570. We decline to 

cherry pick a particular statement by counsel to the exclusion of other

statements. When we consider, as we must, both the content and context of the

statements by counsel, as a whole, we conclude that counsel’s statements did 

not amount to a clear and unequivocal statement of fact. See id. at 570. Thus, 

we cannot agree with Vigus’s assertion, made during her opening argument at 

trial, that “there is no dispute there is a building code violation.” Tr. Vol. 3 at

137.

1

 We note that the parties dispute whether a judicial admission can occur “at any point in a judicial 

proceeding” or may only occur in a pleading or during the course of a trial. We need not resolve that issue, 

but we observe that the statement in Stewart that a judicial admission can occur “at any point in a judicial 

proceeding” is mere dicta and unsupported by prior Indiana case law. 53 N.E.3d at 568. This statement was 

part of a general discussion clarifying case law, the essential distinction between judicial and evidentiary 

admissions, and the conclusive legal effect of judicial admissions. The statement had no bearing on and was 

irrelevant to the holding in Stewart. Further, we note that Vigus’s reliance on Stewart is misplaced because we 

held that the witness testimony at issue was not a judicial admission and that, “when determining whether a 

party has made a judicial admission, the party’s testimony must be considered as a whole and be clear and 

unequivocal.” Id. at 570.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 17 of 25

[18] The transcripts of the 2017 hearing, subsequent conferences, and the trial show 

that the parties engaged in back-and-forth discussions with the trial court 

regarding the issue of a building code violation that were confusing, ambiguous, 

and inconclusive. As the Theater’s counsel put it during the 2017 hearing, 

I feel like I’m in the Twilight Zone with some of these things . . . . 

[Plaintiff’s counsel and I are] not communicating very well. I 

think I heard [plaintiff’s counsel] say that [the Theater says the 

ten-inch step] complies with the [local] Building Code, and I 

think I just said that that’s not the case. Our expert doesn’t say 

that because we can’t . . . . [The step] is ten inches. Evidence of 

negligence, certainly. We know that, but not [a] Building Code 

violation.

Tr. Vol. 3 at 157 (emphases added). Then, just a few moments later, the 

Theater’s counsel said, “Again, we don’t deny there’s a building code violation.” Id.

at 158 (emphasis added). In sum, at the 2017 hearing, the Theater conceded 

that the height of the riser was evidence of negligence but equivocated on the 

question of whether or not the riser was a building code violation.

[19] Some twenty months later, during voir dire, the Theater’s counsel responded to 

a question from a prospective juror and said, “The code was broken. There will 

be evidence of a building code violation.” Id. at 104 (emphasis added). After voir 

dire, during a colloquy with the court, the parties attempted to get clarification 

on the judicial admission as follows: 

[Counsel for Vigus]: So the jury will be informed that this is a 

Building Code violation, that the step is . . .
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 18 of 25

THE COURT: Right.

[Counsel for Vigus]: The step in question is a Building Code 

violation?

THE COURT: That the step, as built...

[Counsel for the Theater]: Is higher than nine inches which is 

violative of the code.

Id. at 133 (emphases added). And in her opening argument, Vigus declared, 

“there is no dispute there is a building code violation,” an assertion that the 

Theater immediately disputed in its opening argument, without an objection

from Vigus. Tr. Vol. 3 at 137.

[20] The transcript reveals that the parties frequently talked past each other, and 

there was no clarity on the parameters of the judicial admission under 

discussion. The parties disagreed whether the Viguses’ table was located on a 

“step” or a “riser,” a fact material to the building code violation issue. And 

Theater’s counsel equivocated, saying that the height of the riser was only 

evidence of a building code violation, was a building code violation, and was not a 

building code violation. Given these and other ambiguities, we cannot say as a 

matter of law that the Theater’s counsel made a definitive, unequivocal judicial 

admission of a building code violation. See, e.g., Harr v. Hayes, 106 N.E.3d 515, 

527 (Ind. Ct. App. 2018) (holding party had not made binding judicial 

admission where statement, taken in context, contained an ambiguity).
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 19 of 25

[21] The trial court concluded that it was not “comfortable saying there’s a building 

code violation.” Tr. Vol. 6 at 78. Indeed, considering the Theater’s counsel’s 

statements “as a whole,” they were neither “clear” nor “unequivocal.” Stewart, 

53 N.E.3d at 570. Thus, we cannot say that the trial court erred, and we hold 

that the trial court did not abuse its discretion when it revoked its pretrial order 

finding that the Theater had made a judicial admission on the building code 

violation.

[22] In any event, even if we were to assume that the Theater made a judicial 

admission, it did not affect the manner in which the case was tried or the 

question the parties asked the jury to decide. Both parties conducted the trial as 

though the jury would be instructed on the judicial admission, and it was not 

until the instruction conference that the court actually revoked its order. Thus, 

the prejudice, if any, would not have occurred until the instruction Vigus 

wanted was not given.

[23] In other words, the ultimate question was whether the court would give a final 

instruction on the Theater’s admission that the riser was in violation of the 

building code. After both parties had rested, during the instruction conference, 

the court granted the Theater’s motion to reconsider its pretrial order finding a

judicial admission and revoked the order that had been entered the day before 

the trial began. The court stated that “the best way” to address the building 

code issue would be to emphasize that “the structure, as built, does not comply 

with plans approved by all appropriate government entities at the time because 

that is not in dispute.” Tr. Vol. 7 at 40. Counsel for Vigus replied, “Okay.” Id. 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 20 of 25

The court then noted that, “perhaps [in] anticipating” how the court would rule 

on the Theater’s motion to reconsider the judicial admission order, Vigus had 

tendered the following instruction:

At the time of Ruth Vigus’[s] injury, there were certain Indiana 

Building Codes . . . and industry practices that [the Theater] was 

subject to . . . relat[ing] to the safe construction and maintenance 

of the building. You are to consider the violation of any Indiana 

Building Code . . . or industry practice as evidence of 

negligence[.]

Id. at 40-41; Appellant’s App. Vol. 9 at 159. The court expressly observed at the 

instruction conference that Vigus did not request or tender a final jury 

instruction on the Theater’s judicial admission. The court all but invited Vigus 

to tender such an instruction. She did not.

[24] For the first time on appeal, Vigus contends that the trial court should have 

instructed the jury that the Theater had admitted that the step violated the 

applicable building code. Indiana Trial Rule 51(C) provides that, at the close of 

the evidence, each party may file written requests that the court instruct the jury 

on the law as set forth in the requests. And, as our Supreme Court has made 

clear, when, as here, the claimed error is the failure to give an instruction, as 

distinguished from the giving of an erroneous one, a tendered instruction is 

necessary to preserve error because, without the substance of an instruction 

upon which to rule, the trial court has not been given a reasonable opportunity 

to consider and implement the request. Scisney v. State, 701 N.E.2d 847, 848 n.3

(Ind. 1998). In this procedural posture, a party’s “failure to . . . tender a 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 21 of 25

relevant jury instruction” results in waiver. Bowman v. State, 51 N.E.3d 1174, 

1178-79 (Ind. 2016). 

[25] Here, again, the court and the parties discussed the judicial admission issue 

before the trial, during the trial, and during the instruction conference. As we 

have noted, the transcript shows that those discussions between the court and 

counsel, which occurred outside the presence of the jury, were confusing and 

equivocal. And, again, at no time did Vigus request a jury instruction on the 

Theater’s admission of a building code violation. As Scisney directs, Vigus was 

required to tender an instruction in order to give the trial court an opportunity 

during the trial to deny or implement the request and for Vigus to preserve the 

issue for appeal. 701 N.E.2d at 848 n.3. This was necessary even though Vigus 

may well have believed and anticipated that the court would refuse to give the 

instruction.2

 Instead, Vigus acquiesced and tendered a different instruction, 

which the trial court gave. Thus, we cannot consider whether the trial court 

erred when it did not instruct the jury on the Theater’s alleged judicial 

admission.

[26] In sum, we hold that the trial court did not abuse its discretion when it revoked 

its pretrial order finding that the Theater had made a judicial admission on the 

building code violation. Even if the Theater had made a judicial admission, it 

2

 The day before the instruction conference, during the parties’ colloquy with the court regarding the 

Theater’s motion to reconsider the judicial admission order, the court stated, “I won’t include an instruction

that as built [the step was] a Building Code violation because [I] don’t know that.” Tr. Vol. 6 at 77. 

Regardless, Vigus was required to tender the desired instruction in order to preserve the issue for our review.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 22 of 25

was incumbent on Vigus to tender a jury instruction on the judicial admission. 

Vigus did not tender that instruction, and she has not preserved that issue for 

our review.

Issue Two: Post-Fall Evidence that the Theater 

Sought a Variance Instead of Reducing the Riser’s Height

[27] Vigus also asserts on appeal that the trial court abused its discretion when it did 

not admit into evidence communications between the Theater’s owners, after 

Ruth’s fall, that they would seek a variance in the riser’s height rather than 

reduce that height. We review the trial court’s decision to admit or not admit 

evidence for an abuse of the court’s discretion. Snow v. State, 77 N.E.3d 173, 

177 (Ind. 2017). “This discretion means that, in many cases, trial judges have 

options. They can admit or exclude evidence, and we won’t meddle with that 

decision on appeal.” Id.

[28] Vigus’s argument on this issue is that the Theater’s owners “lied under oath” 

because, during trial, they testified that they would have taken remedial actions 

if they had known the riser’s height posed a danger, yet, following Ruth’s fall, 

they applied for a building variance rather than reduce the riser’s height. 

Appellant’s Br. at 51. Vigus asserts that that evidence was relevant 

impeachment evidence and, as such, the court erred when it denied the 

admission of that evidence. 
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 23 of 25

[29] In a pretrial order,3 the trial court prohibited the admission of those 

communications, stating that they did not reveal that the owners “knew the 

condition of the platform as-built did not comply with potentially applicable 

building codes” and thus were “not relevant.” Appellant’s App. Vol. 4 at 98. 

The court further stated that, under Indiana Evidence Rule 403, even if those 

communications had “some limited relevance . . . , the probative value of the 

evidence is substantially outweighed by the danger of confusing the issues at 

trial as well as misleading the jury” by asking the jury to focus on what was 

known by the owners “after the fall . . . when the relevant inquiry is what [they] 

knew at the time of [Ruth’s] fall.” Id.

[30] The trial court did not abuse its discretion. The purported relevance of those 

communications aside, Indiana Evidence Rule 403 permits the trial court to 

exclude “relevant evidence if its probative value is substantially outweighed by 

a danger of one or more of the following: . . . confusing the issues[ or] 

misleading the jury . . . .” “[T]his balancing is committed to the trial court’s 

discretion.” Snow, 77 N.E.3d at 179. 

[31] The trial court here concluded that the relevance, if any, of the owners’ 

communications to seek a variance after Ruth’s fall would be substantially 

outweighed by the danger of suggesting to the jury that the owners knew at the 

time of Ruth’s fall of the alleged danger posed by the riser. The court’s 

3

 Vigus sought to admit the evidence at trial, and the court denied the request for the same reasons as in the 

pretrial order. Vigus objected, and the court permitted her to make an offer of proof.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 24 of 25

balancing of those concerns was not error as a matter of law, and we will not 

usurp the trial court’s role of balancing those factors. See id. Accordingly, 

Vigus has not met her burden to show error on this issue.

Conclusion

[32] We hold that the trial court did not abuse its discretion when it revoked its 

pretrial order on the judicial admission. Even assuming that the Theater had 

made a judicial admission that the riser was a building code violation, Vigus

has not shown reversible error. In particular, prior to trial, the court asked 

Vigus to “explain” the building code violation to the jury. Tr. Vol. 3 at 133. 

Vigus obliged and, in her opening argument, told the jury that, “you’ll be 

instructed that there is a building code violation.” Id. at 137. But Vigus made 

no objection when the Theater told the jury in its opening argument that the 

court would not instruct the jury on the violation. Neither did Vigus object to 

any of the Theater’s evidence on the basis that it violated the court’s judicial 

admission order. In the end, the dispute on the judicial admission became “an 

instructional issue.” See Bowman, 51 N.E.3d at 1178. But at the instruction 

conference, Vigus did not argue she was entitled to such an instruction, and she

did not tender an instruction on the judicial admission. See Scisney, 701 N.E.2d 

at 848. Thus, Vigus has not preserved for our review her contention on appeal 

that the trial court erred when it did not instruct the jury that the Theater had 

made a judicial admission of a building code violation.
Court of Appeals of Indiana | Opinion 19A-CT-1365 | August 17, 2020 Page 25 of 25

[33] We also hold that the trial court did not abuse its discretion when it excluded 

evidence of communications between the Theater’s owners, after Ruth’s fall, 

that they would seek a variance in the riser’s height rather than reduce that 

height. And we affirm the judgment for the Theater.

[34] Affirmed.

Kirsch, J., and Brown, J., concur.