Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017 Page 1 of 22

ATTORNEYS FOR APPELLANTS

Robert F. Foos

Neha M. Matta

Neal Bowling

Lewis Wagner, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Timothy S. Schafer

Timothy S. Schafer II

Todd S. Schafer

Schafer & Schafer, LLP

Merrillville, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Sandberg Trucking, Inc., and 

Kimiel Horn, 

Appellants-Defendants,

v.

Brittany M. Johnson,

Appellee-Plaintiff.

May 11, 2017

Court of Appeals Case No.

79A04-1605-CT-1069

Appeal from the Tippecanoe Circuit

Court

The Honorable Thomas H. Busch,

Judge

Trial Court Cause No. 

79C01-1503-CT-14

Bradford, Judge.
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Case Summary

[1] Appellants-Defendants Sandberg Trucking, Inc., and Kimiel Horn (collectively, 

“Appellants”) appeal following a jury trial after which they were found thirty 

percent liable for the injuries of Appellee-Plaintiff Brittany Johnson and ordered

to pay $2.13 million in damages. In April of 2008, a tractor-trailer owned by 

Sandberg and driven by Horn was southbound on I-65 when it struck a deer in 

the dark, leaving remains in the roadway. Horn stopped his truck 

approximately 250 feet down the roadway on the shoulder, exited his truck to 

examine the damage to it, but did not activate the truck’s emergency flashers or 

deploy deflective triangles behind his truck or near the deer remains. 

Approximately ninety seconds after parking on the shoulder, Horn activated his 

truck’s emergency flashers. 

[2] At around this time, a car driven by Johnson’s fiancé Joshua Horne approached 

from the north, and, while apparently attempting to avoid the deer remains, 

careened out of control into Horn’s parked truck, killing Joshua and seriously 

injuring Johnson. Johnson sued Appellants for negligence, and a jury found 

Appellants thirty percent liable for Johnson’s injures, awarding her $2.13 

million. Appellants argue that there is insufficient evidence to sustain the jury’s 

verdict, the trial court allowed the jury to base its verdict upon impermissible 

speculation, the trial court erred in concluding that Appellants had a duty to 

warn fellow motorists of a hazard in the road and that a federal regulation 

pertaining to stopped commercial vehicles applies in this case, and Johnson 

failed to produce evidence to support the jury award of damages. Johnson 
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contests all of the above assertions. Because we find Appellants’ arguments to 

be without merit, we affirm. 

Facts and Procedural History

[3] On April 27, 2008, Horn was employed by Sandberg as a truck driver and was 

southbound in the dark on I-65 in Tippecanoe County at approximately 5:00 

a.m. When several deer ran out in front of Horn’s tractor-trailer, he 

unsuccessfully attempted to avoid them, striking one with the left front part of 

his truck, leaving the deer’s remains spread over both lanes of the highway. 

Horn pulled his truck completely onto the right shoulder, parking 

approximately 250 feet south of where he struck the deer. 

[4] Before activating his truck’s emergency flashers, Horn climbed out to assess the 

damage, which included a headlamp swinging from its connecting wire. After 

addressing the damaged headlamp, Horn climbed back into the cab, activated 

the emergency flashers, and began retrieving a box of reflective triangles. 

Approximately ninety seconds had elapsed since Horn parked the truck. As 

Horn unlocked the triangle case, he heard the squealing of tires, and, roughly

ten seconds later, a car struck the back of his truck. 

[5] Meanwhile, Joshua had been approaching the scene driving southbound on I65 in the right lane with Johnson, his fiancée, in the passenger seat. 

Presumably to avoid the remains of the deer, Joshua swerved hard to the left 

and overcorrected to the right, losing control of the vehicle, which slid into the 
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rear of Horn’s truck; Joshua was severely injured and died at the scene. 

Johnson, then twenty-two years old, sustained severe and, in some cases, 

permanent injuries, including traumatic brain injury, a ruptured spleen, 

multiple skull fractures, multiple rib fractures, permanent facial nerve palsy and 

scarring on her forehead, deafness in her left ear, and memory loss. 

Additionally, Johnson has trouble learning new things, suffers post-concussive 

migraines, has gait instability and balance problems, and is at increased risk of 

developing dementia in the future. 

[6] On July 23, 2009, Johnson filed her complaint against Sandberg and the thenunknown driver of the truck, alleging negligence in failing to activate the truck’s 

emergency flashers or deploy reflective triangles or flares. In response to 

Appellants’ motion for summary judgment, Johnson alleged that Appellants

had violated section 392.22 of the Federal Motor Carrier Safety Administration 

regulations (“Section 392.22”), which provides, in part, as follows:

(a) Hazard warning signal flashers. Whenever a commercial 

motor vehicle is stopped upon the traveled portion of a highway or 

the shoulder of a highway for any cause other than necessary 

traffic stops, the driver of the stopped commercial motor vehicle 

shall immediately activate the vehicular hazard warning signal 

flashers and continue the flashing until the driver places the 

warning devices required by paragraph (b) of this section. The 

flashing signals shall be used during the time the warning devices 

are picked up for storage before movement of the commercial 

motor vehicle. The flashing lights may be used at other times 

while a commercial motor vehicle is stopped in addition to, but 

not in lieu of, the warning devices required by paragraph (b) of this 

section. 
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49 C.F.R. § 392.22. Appellants countered that Section 392.22 was inapplicable, 

as Horn was not engaged in interstate commerce at the time of the accident. 

The trial court denied Appellants’ motion for summary judgment and its 

request for an order preventing Johnson from placing into evidence the 

obligations mentioned in Section 392.22. 

[7] On February 23, 24, and 26, 2016, jury trial was held on Johnson’s negligence 

claim. James Pinckney, a transportation consultant opined that Horn’s failure 

to follow Section 392.22’s requirement to immediately activate his truck’s 

emergency flashers was the cause of the second accident. Following the 

presentation of Johnson’s case, the trial court denied Appellants’ motion for 

directed verdict. On February 26, 2016, the jury returned a verdict in favor of 

Johnson, finding that she had $7.1 million in damages and that Appellants were 

thirty percent at fault,1for a total money judgment of $2.13 million. On March 

28, 2016, Appellants filed a motion to correct error, in which they argued that 

Johnson failed to establish that any act or omission on Appellants’ part was the 

proximate cause of Johnson’s injuries and that the verdict was unsupported by 

sufficient evidence. On April 27, 2016, the trial court denied Appellants’

motion to correct error. 

[8] Appellants argue that (1) the trial court erred in concluding that Horn had a 

duty to warn other motorists not only of his stopped truck but also of the deer 

 

1

 The jury found Joshua to have been seventy percent at fault for the accident. 
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remains, (2) Johnson failed to prove that the alleged negligent actions of Horn 

were the proximate cause of her injuries, (3) the trial court erroneously allowed 

the jury to engage in impermissible speculation, (4) the trial court erroneously 

concluded that Section 392.22 established the correct standard for Horn’s 

behavior in this case, and (5) the jury’s damages award in favor of Johnson for 

$2.13 million was not supported by the evidence presented at trial. 

Discussion and Decision

[9] “‘[T]o 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.’” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 

N.E.3d 384, 386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 

(Ind. 2003)). “Whether a defendant owes a duty of care to a plaintiff is a 

question of law for the court to decide.” N. Ind. Pub. Serv. Co. v. Sharp, 790 

N.E.2d 462, 466 (Ind. 2003). 

Standards of Review

[10] Appellants appeal from the trial court’s denial of their motion to correct error. 

In general, we review a trial court’s ruling on a motion to correct 

error for an abuse of discretion. Hawkins v. Cannon, 826 N.E.2d 

658, 661 (Ind. Ct. App. 2005), trans. denied. However, to the 

extent the issues raised by the City are purely questions of law, our 

review is de novo. See Ind. BMV v. Charles, 919 N.E.2d 114, 116 

(Ind. Ct. App. 2009) (“Although rulings on motions to correct 
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error are usually reviewable under an abuse of discretion standard, 

we review a case de novo when the issue ... is purely a question of 

law.”)[.]

City of Indpls. v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied. 

In the present case, this standard of review is appropriately applied only to the 

questions of whether Appellants had a duty of care to Johnson and whether 

Section 392.22 applies in this case, which are questions of law for the court. 

[11] For the remainder of their claims, Appellants are essentially arguing that there 

was insufficient evidence to sustain the jury’s verdict. “The jury, as the trier of 

fact, must weigh the evidence, draw any reasonable inferences, resolve conflicts 

in the evidence, determine the credibility of witnesses and decide in whose 

favor the evidence preponderates.” Ferdinand Furniture Co. v. Anderson, 399 

N.E.2d 799, 805 (Ind. Ct. App. 1980). 

Consequently, our standard of review allows us to overturn a 

jury’s verdict only if there is no evidence on the elements of the 

plaintiff’s claim which will support the verdict. Farm Bureau Ins. 

Co. v. Crabtree (1984), Ind. App., 467 N.E.2d 1220, 1225, rehearing 

denied, transfer denied. On such challenges to the sufficiency of the 

evidence we view the record in a light most favorable to the 

verdict, do not reweigh evidence, and will not rejudge the 

credibility of witnesses.

Planned Parenthood of Nw. Ind., Inc. v. Vines, 543 N.E.2d 654, 658 (Ind. Ct. App. 

1989), trans. denied. 
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I. Duty of Care

[12] Appellants contend that the trial court erroneously concluded that Horn had a 

duty to warn of the entire hazard, including the deer remains on the roadway. 

Johnson argues that Appellants have framed this issue too narrowly and that 

the general duty of all motorists to use reasonable care to avoid endangering 

fellow motorists applies in all traffic cases, including this one. 

Whether a defendant has a duty to conform conduct to a certain 

standard for the benefit of the plaintiff is generally a question of 

law. The question of the breach of a duty is usually one for the 

trier of fact. However, if any reasonable jury would conclude that 

a specific standard of care was or was not breached, the question 

of breach becomes a question of law for the court. 

Cox v. Paul, 828 N.E.2d 907, 911-12 (Ind. 2005) (citations omitted). 

[13] In general, “[t]he law requires of every person that he shall exercise due care to 

avoid injury to others and to protect himself, and the vigilance required is 

always commensurate with the danger to be apprehended.”2 Lake Shore & Mich.

S. Ry. Co. v. Brown, 41 Ind. App. 435, 437, 84 N.E. 25, 26 (1908). More 

particularly, “the duty owed by motorists to fellow motorists is wellestablished.” Romero v. Brady, 5 N.E.3d 1166, 1168 (Ind. Ct. App. 2014), trans. 

denied. “All operators of motor vehicles have a general duty to use ordinary 

 

2

 The version of this passage found in the www.westlaw.com database differs from the official version as found 

in the Indiana Appellate Court Reports by replacing “he” with “they” and “himself” with “themselves.” 
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care to avoid injuries to other motorists.” Wilkerson v. Harvey, 814 N.E.2d 686, 

693 (Ind. Ct. App. 2004), trans. denied. 

[14] Appellants argue that the trial court incorrectly interpreted Shaw v. Stewart’s 

Transfer, 2010 WL 2943202 (D. Me. 2010), and the Restatement (Second) of 

Torts § 322 to find that a duty existed in this case. Appellants also go to great 

lengths to argue that Johnson’s own witnesses’ testimony supports the 

proposition that Horn had no duty to warn fellow motorists of the deer remains. 

We conclude that this is a too-narrow framing of the issue, i.e., arguing whether 

a general duty to fellow motorists exists given a particular set of unique facts. 

[15] As the Indiana Supreme Court has explained in the context of a school’s duty 

to its students, 

An approach that focuses on rearticulating that duty based upon a 

given set of facts is misplaced in our view because to do so 

presupposes that an issue which is thought to be settled must be 

revisited each time a party frames the duty issue a little differently. 

Rather, because a school’s duty to its students already has been 

established, the focus shifts to whether a given set of facts 

represents a breach of that duty.

Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 974-75 (Ind. 

2001) (footnote omitted). Because of the existence of Horn’s duty to his fellow 

motorists (including Joshua and Johnson), the focus shifts to whether a given 

set of facts constitutes a breach of that duty. See, e.g., Romero, 5 N.E.3d at 1169 

(“Similarly, it is well-established that motorists have a duty to use due care to 

avoid collisions, and whether a motorist was following another motorist too 

closely goes to the issue of breach.”). The trial court did not err in concluding 
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that Appellants had a duty of care to Joshua and Johnson, and the question 

then becomes whether that duty was breached, to be determined by the jury. 

II. Proximate Cause

[16] Appellants also contend that the jury did not have sufficient evidence on which 

to find that their actions or omissions proximately caused Johnson’s injuries. 

“The proximate cause of an injury is not merely the direct or close cause, rather 

it is the negligent act which resulted in an injury which was the act’s natural 

and probable consequence in light of the circumstances and should reasonably 

have been foreseen and anticipated.” City of Indpls. Hous. Auth. v. Pippin, 726 

N.E.2d 341, 346 (Ind. App. 2000). 

[17] It is well established that there may be more than one proximate cause of a 

plaintiff’s injuries. See, e.g., J.B. Hunt Transp., Inc. v. Guardianship of Zak, 58 

N.E.3d 956, 972-73 (Ind. Ct. App. 2016), trans. denied. In this case, the jury 

found as much by assigning seventy percent of the fault to Joshua. To resolve 

this case as a matter of law, as Appellants request, this court must find that 

under no circumstances could any of the fault be properly assigned to 

Appellants. Put another way, “the issue of proximate cause becomes a question 

of law where only a single conclusion can be drawn from the facts.” Florio v. 

Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007). 

[18] We conclude that this is not one of those cases. Even though a short time 

elapsed between Horn striking the deer and Joshua and Johnson running into 

Horn’s truck, Horn did have time to do things differently, i.e., immediately 
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activate his truck’s emergency flashers, and the jury could have concluded that 

the second accident could have been avoided if he had. In other words, Horn 

had time to take different action, action that the jury was entitled to conclude 

might have alerted Joshua that there was trouble ahead and/or caused Joshua

to slow down. In fact, Johnson’s expert James Pinckney opined that Horn’s 

failure to immediately activate his truck’s emergency flashers was the cause of 

the second accident. The jury was entitled to credit Pinckney’s testimony, and 

likely did. 

[19] As we have stated, 

Where, as here, the actor’s conduct has created a situation which

without more is not dangerous to anyone but which may become 

dangerous if subsequently acted upon by a human being or force 

of nature, the reasonableness of the actor’s conduct must be 

evaluated, ultimately by weighing the likelihood and potential for 

harm against the utility of the actor’s conduct. Whether the risk 

involved in doing a particular act is apparent to an ordinarily 

prudent person is most appropriately left for a jury which can 

bring to bear its varied experience and common knowledge.

Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1265 (Ind. Ct. App. 1989)

(citations omitted). We conclude that the jury heard sufficient evidence to 

sustain its finding that Appellants’ acts or omissions were a proximate cause of 

Johnson’s injuries. 

III. Impermissible Speculation

[20] In what seems to be essentially a slight variation of the previous two arguments, 

Appellants contend that the trial court erred in allowing the jury to engage in 
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what they characterize as impermissible speculation in reaching its verdict. 

This is little more than a restated claim that the jury’s verdict was not sustained 

by sufficient evidence. The gravamen of this argument is that the jury never 

heard any evidence from Joshua (who is dead) or Johnson (who sustained head 

injuries and remembers nothing about the accident) that Joshua would have 

slowed, shifted to the left lane, or done anything else differently had Horn 

activated his flashers earlier than he did. 

[21] To support this argument, Appellants cite to Zak, 58 N.E.3d at 956, a case with 

somewhat similar facts: 

The First Accident

[3] On January 17, 2006, [Terry] Brown[, Jr.,] was a semi tractortrailer driver employed by Hunt [Transport. Inc]. He was driving 

an empty trailer from Greencastle, Indiana, to Bolingbrook, 

Illinois. At some point, it began snowing. A few miles south of 

mile marker 205 on I-65 North, Brown felt his trailer move from 

side to side. He reduced his speed to between fifty and fifty-five 

miles per hour but did not believe that the weather conditions were 

bad enough that he had to pull over.

[4] At approximately 6:00 p.m., Brown began driving on the 

overpass at mile marker 205. He felt a bump in the back, looked 

in his rear view mirror, and saw the trailer veering to the left side 

of the interstate. Brown attempted to counter-steer to prevent his 

trailer from jack-knifing, but his efforts failed. He blacked out 

briefly, and when he returned to consciousness, he saw that the 

semi had come to rest in the median between the north and 

southbound lanes of I-65. The vehicle was in a jackknife position, 

abutted the guardrail adjacent to the southbound lanes, and was 

fully contained within the median, approximately 200 to 500 feet 
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from the overpass. Although Brown never saw any black ice on 

the roadway, he assumed that it was the cause of the accident.

[5] Brown, who had a noticeable bump on his head, reported the 

accident to his employer and the police. An ambulance and tow 

truck were called to the scene. Brown did not turn on the semi’s 

flashers or place reflective warning triangles on the roadway. At 

6:05 p.m., Indiana State Police Corporal Terence Weems 

responded to the accident. Corporal Weems remained at the scene 

for approximately thirty to forty-five minutes, during which time 

the ambulance arrived and transported Brown to a nearby 

hospital.

[6] Corporal Weems did not believe that the location of the semi in 

the median was a safety hazard to motorists traveling on I-65 

North. The surrounding area was dark and unlit, and another 

officer testified that northbound drivers would likely not even have 

known that the tractor-trailer was in the median because they 

would not have been able to see it. The overpass is protected by 

three-foot concrete barriers on each side, and there is a berm in the 

median that meets the concrete wall. Together, these barriers 

would have prevented headlights from northbound vehicles from 

reflecting off of the semi. Because Corporal Weems believed the 

scene to be safe to passing motorists, he left before the tow truck 

arrived to go to the scene of another, unrelated accident.

The Second Accident

[7] At approximately 7:00 p.m., conditions on I-65 had worsened 

dramatically. Sleet, heavy snow, and ice became serious 

problems. Matthew Robinson was driving on I-65 North with his

fiancée, Kristen Zak, as the sole passenger. Robinson lost control 

of his vehicle somewhere on the overpass at mile marker 205. His 

vehicle slid off of the roadway and spun out of control into the 

median, eventually striking the side of Brown’s jackknifed trailer. 

Zak, who was thirty-one years old and asleep at the time, received 

the brunt of the impact and was seriously injured. She sustained 

serious brain damage, leaving her unable to walk, care for herself, 
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or care for her six-year-old daughter. Neither Robinson nor Zak 

have any memory of the accident.

[8] Indiana State Police Officer Martin Benner responded to the 

scene of the accident. Robinson twice told Officer Benner that he 

had been driving at the speed limit of seventy miles per hour when 

he lost control of the vehicle, though Robinson later told an EMT 

that he had been driving sixty miles per hour. Robinson has no 

memory of these interactions; indeed, there is a gap in his memory 

from before the accident to one week after the accident.

Id. at 961-62. 

[22] Rejecting several challenges by the appellants in that case, we affirmed the 

jury’s verdict in favor of Zak’s guardian. Id. at 974. Appellants note that in 

Zak, Robinson (the driver) testified that if he had seen the flashers on the truck, 

he would have slowed down, moved to the right lane, and proceeded with 

caution. Id. at 964. Appellants argue that the absence of such evidence in this 

case means that any verdict in favor of Johnson was necessarily based on 

speculation. The presence of certain facts in Zak does not mean that a lack of 

any of those facts in other cases requires a different result. Each case stands 

alone, and the question is whether the evidence presented in this case—and 

reasonable inferences arising therefrom—would allow the jury to reach the 

verdict it did. Here, we conclude that there was sufficient evidence to conclude 

that Joshua likely would have slowed down or taken other measures had the 

truck’s flashers been on, even in the absence of direct evidence to that effect. 

[23] Moreover, we will not adopt a rule that effectively eliminates the possibility of a 

verdict in favor of the plaintiff(s) in failure-to-warn cases if the relevant person

does not testify that he or she would have done anything differently had he or 
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she been warned of the danger. Put bluntly, it will not be uncommon in such 

cases for that person to be dead. The jurors should be entitled to infer that 

things would have played out differently had there been a warning, despite the 

lack of testimony to that effect. 

[24] Appellants also argue that there is no reasonable inference that Joshua would 

have done anything differently had Section 392.22 been followed because that 

provision does not address bringing attention to hazards in the roadway, only 

stationary commercial vehicles. In other words, Appellants argue that the harm 

in this case was not within the risk that Section 392.22 was designed to avoid, 

which, they claim, is solely to prevent another motorist from colliding with the 

stationary truck. This seems to be a variation on Appellants’ argument that 

Johnson failed to prove proximate cause. That said, this is a too-narrow 

interpretation of Section 392.22. There are any number of reasons why a 

commercial vehicle might pull off and stop on a shoulder, including striking 

something in the roadway—something that, as in this case, might still pose a 

hazard. Arguably, a reasonable person might slow down and exercise caution 

whenever encountering a stopped commercial vehicle with flashers on, because 

that person likely has no idea why the vehicle is stopped. Indeed, Horn, Officer 

Kruger, Officer Cody and Pinckney all testified that the purpose of Section 

392.22 was to provide other motorists with warning so that they could slow 

down, move over, and proceed with caution. 
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IV. Section 392.22

[25] Appellants also argue that Section 392.22, as a federal regulation, does not 

apply in this case because Horn was not engaged in interstate commerce. Even 

assuming, arguendo, that Horn was engaged exclusively in intrastate commerce, 

Indiana Code section 8-2.1-24-18(a) explicitly provides that “49 CFR Parts 40, 

375, 380, 382 through 387, 390 through 393, and 395 through 398 are 

incorporated into Indiana law by reference, and ... must be complied with by 

an interstate and intrastate motor carrier of persons or property throughout 

Indiana.” (Emphases added). 

[26] Appellants argue that this incorporation is too vague to be effective because it 

does not apply to individual drivers like Horn and other incorporated federal 

regulations render Section 392.22 inapplicable to intrastate transport. We find 

these arguments unpersuasive. Appellants note that Indiana Code section 8-

2.1-24-18(a)applies, by its own terms, only to “motor carriers” and not 

individual drivers like Horn. Another one of the regulations incorporated by 

Indiana Code section 8-2.1-24-18(a), however, provides that “[t]he rules in 

subchapter B of this chapter are applicable to all employers, employees, and 

commercial motor vehicles that transport property or passengers in interstate 

commerce.” 49 CFR § 390.3(a)(1) (emphasis added). Appellants also note that 

49 CFR § 390.3(a)(1) applies to interstate commerce and seem to argue that the 

General Assembly went to the trouble of adopting federal regulations and 

specifically making them applicable to intrastate commerce while

simultaneously adopting one that nullified the entire adoption. It is, of course, 
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implausible that this was the General Assembly’s intent when it enacted 

Indiana Code section 8-2.1-24-18. “We must construe statutes to prevent 

absurdity or a result the legislature, as a reasonable body, could not have 

intended.” Chavis v. Patton, 683 N.E.2d 253, 258 (Ind. Ct. App. 1997). 

Similarly, Appellants note that the General Assembly also incorporated 49 CFR 

§ 383.5, which requires that “commercial motor vehicles” be “used in 

commerce” and defines “commerce” as 

(1) Any trade, traffic or transportation within the jurisdiction of 

the United States between a place in a State and a place outside of 

such State, including a place outside of the United States, and

(2) Trade, traffic, and transportation in the United States that 

affects any trade, traffic, and transportation described in paragraph 

(1) of this definition.

As with Appellants’ previous argument, we seriously doubt that the General 

Assembly actually intended to adopt a number of federal regulations and then 

nullify them in another portion of the same statute. Appellants have failed to 

establish that Section 392.22 does not apply in this case. 

[27] That said, having concluded that Section 392.22 applies to this case, it strikes us 

as prudent to include some observations regarding the scope and effect of 

Section 392.22. The parties argue at great length regarding the applicability of

Section 392.22, with Johnson asserting that Horn’s failure to immediately 

activate his emergency flashers as required by Section 392.22 automatically 

leads to liability, and Appellants asserting that Section 392.22 is, essentially, 

irrelevant, as its purpose is to alert other motorists that the truck is stationary, 
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not to warn of other road hazards. In our view, both suggested interpretations 

are too narrow. 

[28] Neither party offers any authority for the proposition (and research has 

recovered none) that Section 392.22 limits, expands, or otherwise defines the 

general duty of care a motorist owes to fellow motorists in Indiana. Whatever 

Section 392.22’s effect in other contexts, we believe that it is best to view it as a 

useful guideline in the context of Indiana negligence law. Put another way, 

following Section 392.22 to the letter should not absolutely shield you from 

liability any more than failing to follow it should automatically subject you to 

it. In fact, this court has rejected such a rigid application, explaining that 

“[u]nder Indiana law, an unexcused or unjustified violation of a duty dictated by 

statute is negligence per se.” Indian Trucking v. Harber, 752 N.E.2d 168, 172 

(Ind. Ct. App. 2001) (emphasis added). In other words, violation of a statutory 

duty creates a presumption of negligence that may be rebutted.3 

 

3

 Indeed, it is not difficult to come up with hypotheticals that illustrate why rigid application of Section 

392.22 could lead to injustice. Suppose, for example, that Horn had struck a person instead of a deer and 

that it was a sunny day instead of a dark morning. Under those circumstances, if Horn had attended to the 

victim first instead of immediately activating his emergency flashers, it seems that requiring rigid adherence

392.22 could lead to injustice. On the other hand, suppose that Horn had hit a difficult-to-see road hazard 

that disabled his truck. If Horn could have easily and safely removed the hazard from the roadway or alerted 

other motorists to its presence, relieving him of liability for a subsequent collision because he immediately 

engaged his emergency flashers—while doing nothing about the hazard—also seems unjust. 
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V. Damages Award

[29] Appellants argue that the jury’s damages award of $7.1 million is unsupported 

by evidence in the record. 

A person injured by the negligence of another is entitled to 

“reasonable compensation,” which is the “sum [that] would 

reasonably compensate the victim both for bodily injuries and for 

pain and suffering.” [Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind. 

Ct. App. 2001), trans. denied.] We apply a “strict standard” when 

we review an appellate claim that a jury’s damages award was 

excessive. Id. “A jury’s determination of damages is entitled to 

great deference when challenged on appeal.” Sears Roebuck and 

Co. v. Manuilov, 742 N.E.2d 453, 462 (Ind. 2001).

Damages are particularly a jury determination. Appellate 

courts will not substitute their idea of a proper damage 

award for that of the jury. Instead, the court will look only 

to the evidence and inferences therefrom which support 

the jury’s verdict. We will not deem a verdict to be the 

result of improper considerations unless it cannot be 

explained on any other reasonable ground. Thus, if there 

is any evidence in the record which supports the amount of 

the award, even if it is variable or conflicting, the award 

will not be disturbed. 

Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App. 

1994), reh’g denied, trans. denied). When considering a claim of an 

excessive jury verdict, we [do not] reweigh the evidence, and we 

“look only to the evidence and the reasonable inferences 

therefrom which uphold the verdict.” Lutheran Hosp. of Indiana, 

Inc. v. Blaser, 634 N.E.2d 864, 873 (Ind. Ct. App. 1994), reh’g 

denied. “To warrant reversal, the award ‘must appear to be so 

outrageous as to impress the Court at “first blush” with its 

enormity.’” Ritter, 745 N.E.2d at 844 (quoting Kimberlin v.

DeLong, 637 N.E.2d 121, 129 (Ind. 1994) (quoting New York Cent. 
Court of Appeals of Indiana | Opinion 79A04-1605-CT-1069 | May 11, 2017 Page 20 of 22

R.R. Co. v. Johnson, 234 Ind. 457, 127 N.E.2d 603 (1955)), reh’g 

denied, cert. denied). 

Reed v. Bethel, 2 N.E.3d 98, 113-14 (Ind. Ct. App. 2014). 

[30] Appellants’ argument is that the jury’s award must be altered or vacated 

because (1) Johnson did not present any evidence of special, i.e., pecuniary 

damages at trial and (2) she has been able to maintain employment since the 

accident and receive raises and promotions. Appellants point to no authority 

that evidence of special damages is required in negligence cases, however, and 

it was for the jury to weigh evidence regarding Johnson’s employment history 

against the other evidence. 

[31] Among the evidence produced by Johnson about the extent of her injuries was 

testimony from Dr. Jonathan Liss, a neurologist, who testified that she suffered 

severe traumatic brain injury, “has trouble learning new things[,]” “will forever 

have inter grade amnesia[,]” and “will have to live with these significant 

deficient’s [sic] the rest of her life.” Tr. p. 332. Dr. Liss testified that Johnson 

was close to not surviving the accident; doctors “opened her up from kind of 

stem to stern” and removed her damaged spleen; she sustained multiple skull 

and rib fractures; she suffers from permanent facial nerve palsy; and she is deaf 

in her left ear. Tr. p. 335. Dr. Liss added that Johnson suffers from 

“tremendous” memory loss, tr. p. 350, suffers from post-concussive migraines, 

and is at increased risk for developing dementia in the future. Moreover, 

Johnson lost her fiancé in the accident that permanently injured her. 
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[32] The trial court instructed the jury, in part and without challenge from 

Appellants, as follows: 

Brittany Johnson does not have to present evidence of the dollar 

value of her pain, suffering, and mental anguish, disfigurement, 

deformity, and permanent injuries. These types of damages need 

not be proven to a mathematical certainty.

She must prove the nature and extent of these types of damages, 

however. The dollar value, if any, of these damages is left to your 

good judgment. 

Tr. p. 724. 

[33] Considering the extent and permanent nature of Johnson’s injuries, the jury’s 

total award of $7.1 million is not so outrageous that it should impress this court 

with its enormity. Appellants have failed to establish that the jury’s damages 

award cannot be explained on any reasonable ground. 

Conclusion

[34] We conclude that the trial court (1) did not err in finding that Horn had a duty 

of care to Joshua, Johnson, and his other fellow motorists; (2) did not allow the 

jury to engage in speculation; and (3) correctly concluded that Section 393.22 

applies to intrastate commerce. We further conclude that Johnson produced 

sufficient evidence to sustain findings that (1) Horn’s actions (or inactions) were 

the proximate cause of her injuries and (2) she sustained $2.13 million in 

damages. 

[35] The judgment of the trial court is affirmed. 
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Najam, J., and Riley, J., concur.