Court of Appeals of Indiana | Memorandum Decision 45A03-1512-CT-2334 | September 16, 2016 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Wanda E. Jones

Jones Law Offices

Griffith, Indiana

Kurt A. Young

Nashville, Indiana

ATTORNEYS FOR APPELLEE

Thomas S. Ehrhardt

Tracey S. Wetzstein

Kopka Pinkus Dolin, PC

Crown Point, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Phillip David Long and

Kathy Long,

Appellants-Plaintiffs,

v.

Michael J. Lopez,

Appellee-Defendant

September 16, 2016

Court of Appeals Case No.

45A03-1512-CT-2334

Appeal from the Lake Superior 

Court

The Honorable Calvin D. 

Hawkins, Judge

Trial Court Cause No.

45D02-1112-CT-137

Baker, Judge.
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[1] Phillip Long was struck by Michael Lopez’s vehicle. Phillip sued Lopez for 

negligence, and Phillip’s wife, Kathy, sued for loss of consortium. At trial, the 

parties disputed what jury instructions should be given. Eventually, the jury 

returned a verdict in the Longs’ favor, and awarded Phillip $24,000 and Kathy 

nothing.

[2] The Longs filed a motion to correct error and requested additur, arguing that 

improper jury instructions resulted in a lowered damages award. The trial court 

denied these motions, and the Longs now appeal. Finding that the damages 

award was within the bounds of the evidence presented, we affirm.

Facts

[3] On the morning of October 7, 2009, fifty-four-year-old Phillip was taking a walk 

to a local park. He stopped at an intersection, waited for the walk sign to light 

up, and began walking after the sign lit up. Lopez struck Phillip with his truck 

while Phillip was in the crosswalk. The impact threw Phillip to the ground, and 

he lost consciousness. He woke up in an ambulance. By the time he arrived at 

the hospital, he later testified, “I was hurting. My head was splitting. I was 

nauseous. My arm was swollen up. My rib cage hurt. My back was 

screaming.” Suppl. Tr. p. 17.

[4] Prior to the accident, Phillip had an extensive history of back problems. His 

first back surgery was in 1989. After a 2003 work injury, he underwent an 

unsuccessful spinal fusion surgery in 2004, which was corrected by another 

back surgery in 2005. Although the 2005 surgery did not eliminate his back 
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pain, it reduced the pain to a level that Phillip could manage with medication; 

after several years of recovery, he was able to do yardwork, housework, and 

take walks.

[5] On August 23, 2011, the Longs sued Lopez for negligence, with Kathy making 

a claim for loss of consortium. A jury trial was held on September 22-24, 2015. 

Following the October 2009 accident, Phillip underwent treatment from several 

doctors and physical therapists, several of whom testified at the trial. Phillip 

testified that he still experienced constant pain in his back and neck. Following 

the accident, he received injections of various medications, underwent several 

more procedures, and went to a chiropractor. The doctors who testified at trial 

acknowledged the acute pain that Phillip experienced as a result of the accident. 

At least one of the doctors testified, however, that some of the pain Phillip was 

experiencing in his lower back would have occurred absent the 2009 accident, 

given Phillip’s preexisting condition. Another doctor testified that Phillip

reached maximum medical improvement from the 2009 accident within two 

and one-half months, and that Phillip’s current experience of pain could not be 

attributed to the accident.

[6] At the close of evidence, the Longs moved for judgment on the evidence 

pursuant to Indiana Trial Rule 50, seeking a judgment that Phillip “was not 

negligent in any manner in this case” and “as to liability.” Appellants’ App. p. 

33. The trial court granted both motions.
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[7] The parties then discussed what final instructions should be given to the jury. 

The trial court noted, “you’ll see an instruction that says the defendant is the 

responsible party and then . . . instructs the jurors that . . . the only issue is 

liability—I mean, damages, if any.” Tr. p. 241. But the trial court then told the 

defense, “that does not bar you from, well, he wasn’t negligent, but he’s the 

responsible party from the Court’s perspective. So it gives each of you 

something for what that’s worth.” Id. After the parties tried to clarify what the 

trial court meant, it explained, “If I’ve equally pissed both of you all off, I’ve 

accomplished something.” Id. at 245. The defense then asked the trial court to 

give the jury a verdict-for-the-defense form in case the jury found that Lopez 

was not negligent, and the trial court agreed.

[8] After discussing other issues, plaintiffs’ counsel returned to the issue of the 

negligence instruction: “I feel that it’s going to be confusing to the jury to be 

told that he is the responsible cause on one hand, and then on the other hand be 

told that they should look into the issue of negligence.” Id. at 256. The trial 

court responded, “I can reconcile them, but I don’t want to because that gets 

into the province of me, kind of, construing your argument, okay. After the 

trial is over, I’ll tell you.” Id. 

[9] In closing, defense counsel argued that Lopez had not been negligent and that 

the jury could enter that as a verdict. He then mentioned the doctor’s testimony 

regarding Phillip’s maximum medical improvement, and noted that “the total 

medical bills for that time period are $24,575.73. If you’re inclined to find that 

Mr. Long was, in fact, negligent, I believe the proven medical bills that would 
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be due and owing to Mr. Long is that figure . . . .” Id. at 285. He also told 

them that if they were inclined to make an award regarding pain and suffering, 

“a reasonable verdict . . . which includes that would be probably between $50-

to $75,000.” Id. at 289.

[10] The trial court gave the jury instructions on the definition of negligence and a 

defense verdict form. It also instructed the jury on its previous finding: “The 

Court has determined that Defendant, Michael J. Lopez, was responsible for 

the pedestrian/motor vehicle collision involved in this case. The only issue for 

your determination is the nature and extent of the Plaintiffs’ injuries and 

damages, if any, proximately caused by the Defendant.” Appellant’s App. p. 

41. The jury found that Lopez was negligent, and it awarded Phillip $24,000 

and his wife nothing. The Longs filed a motion to correct error and requested 

additur. The trial court denied these motions, and the Longs now appeal.

Discussion and Decision

[11] The Longs challenge the trial court’s jury instructions. They also argue that the 

trial court erred by not granting their motion to correct error or their request for 

additur.

[12] The manner of instructing a jury is left to the sound discretion of the trial court. 

Kimbrough v. Anderson, 55 N.E.3d 325, 339 (Ind. Ct. App. 2016). Its ruling will 

not be reversed unless the instructional error is such that the charge to the jury 

misstates the law or otherwise misleads the jury. Id. Jury instructions must be 

considered as a whole and in reference to each other. Id. In reviewing a trial 
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court’s decision to give or refuse a tendered instruction, we consider (1) whether 

the instruction correctly states the law; (2) whether there is evidence in the 

record to support giving the instruction; and (3) whether the substance of the 

tendered instruction is covered by the other instructions that are given. Id. 

Where the verdict would not have differed had the jury been properly 

instructed, any error in the giving of instructions is harmless. Canfield v. 

Sandock, 563 N.E.2d 1279, 1282-83 (Ind. 1990). An erroneous instruction is 

grounds for reversal only where we conclude that, given the totality of the 

instructions, the opponent’s substantial rights were adversely affected. Lovings 

v. Cleary, 799 N.E.2d 76, 79 (Ind. Ct. App. 2003).

[13] In addition, a trial court has broad discretion to correct error. Childress v. 

Buckler, 779 N.E.2d 546, 550 (Ind. Ct. App. 2002). We will reverse such a 

decision only where the trial court’s decision was against the logic and effect of 

the facts and circumstances before it, together with the inferences that can be 

drawn therefrom. Id.

[14] Lopez argues that the negligence instructions and defense verdict form were 

appropriate because “[t]he trial court had not found liability as a matter of law,” 

and that therefore the instructions were not confusing or misleading. Appellee’s 

Br. p. 12. But this argument is belied by the jury instruction that informed the 

jury, “The only issue for your determination is the nature and extent of the 

Plaintiffs’ injuries and damages, if any, proximately caused by the Defendant.” 

Appellants’ App. p. 41. Moreover, the trial court granted the Longs’ Trial Rule 

50 motion for judgment on the evidence regarding Lopez’s liability. Trial Rule 
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50 instructs that, in addition to entering judgment on the issue, “the court shall 

withdraw such issues from the jury . . . .”

[15] We find that the trial court erred by instructing the jury on an issue that, 

following the grant of the Longs’ Trial Rule 50 motion, the trial court was 

required to withdraw from the jury’s consideration. The instructions were also 

contradictory, simultaneously asking the jury to determine liability and 

informing it that it should only consider damages. The question becomes 

whether this error requires a reversal.

[16] We have previously held that a trial court commits reversible error in 

instructing the jury on propositions of law not pertinent to the issues or 

applicable to the evidence. E.g., Power v. Brodie, 460 N.E.2d 1241, 1243 (Ind. 

Ct. App. 1986). In Power, the plaintiff was a passenger in a vehicle that ran into 

another car when the two cars both ran through stop signs. Id. at 1242. The 

trial court gave an instruction to the jury regarding the doctrine of incurred risk, 

and the jury found in favor of the defendant. Id. Because “[t]here was no 

evidence presented from which to infer that Power had actual knowledge and 

voluntarily incurred the risk of being struck by another vehicle that had also run 

the stop sign,” we reversed the jury’s decision and remanded for a new trial. Id.

at 1243. A similar issue arose in Hinkley v. Montgomery Ward, Inc., 497 N.E.2d 

255 (Ind. Ct. App. 1986). In that case, a plaintiff sued a tire manufacturer after 

a tire allegedly blew out, which caused his truck to crash into a guardrail. Id. at 

256. The plaintiff sued under a products liability theory and a breach of 

warranty theory. Id. The trial court gave an instruction to the jury regarding 
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the type of operator’s license the plaintiff was legally required to obtain before 

driving his truck, and the jury eventually returned a verdict for the defendant. 

Id. We reversed and remanded for a new trial, noting that “unless a causal 

connection between the injuries and the failure to have a license is shown, the 

lack of a license is immaterial.” Id. at 257.

[17] In both of these cases, however, the appellants were appealing from negative 

judgments. In Power, we reversed because the jury’s verdict in favor of the 

defendant could have been based on the impertinent instruction. The same was 

true in Hinkley.

[18] The same cannot be said in this case; the jury returned a verdict in the Longs’ 

favor. The jury’s verdict accords with the trial court’s ruling that found Lopez 

to be negligent. Clearly, the Longs suffered no harm in this aspect of the jury’s 

verdict.

[19] Rather, the Longs contend that the improper instructions on negligence resulted 

in a damages calculation that was lower than it otherwise would have been. A 

jury is to be afforded a great latitude in making damage award determinations. 

Russell v. Neumann-Steadman, 759 N.E.2d 234, 237 (Ind. Ct. App. 2001). A 

verdict will be upheld if the award falls within the bounds of the evidence. Id. 

The trial court may only reverse a jury verdict when it is apparent from a review 

of the evidence that the amount of damages awarded by the jury is so small or 

so great as to clearly indicate that the jury was motivated by prejudice, passion, 

partiality, corruption or that it considered an improper element. Id.
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[20] In some circumstances, a jury’s damages award may be inadequate as a matter 

of law. In Russell, the defendant admitted fault for an accident, but despite 

undisputed evidence of the plaintiff’s medical expenses, the jury awarded no 

damages. 759 N.E.2d at 238. We explained, “The proper remedy in a case 

such as this, where liability is clear through admission, and where the jury 

verdict was inadequate as a matter of law, is a new trial on the issue of 

damages.” Id. In Childress, we affirmed a trial court’s grant of a motion to 

correct error after the jury awarded damages of $1639.00 to a plaintiff who had 

incurred medical bills and lost wages of at least $4149.00. 779 N.E.2d at 551.

[21] We find both of these cases to be easily distinguishable from the instant case. 

In Russell, the plaintiff received zero percent of her proven damages. In 

Childress, the plaintiff received less than forty percent of her proven damages. 

Here, in contrast, the Longs acknowledge that at least one expert witness 

testified that Phillip reached maximum medical improvement after two-and-ahalf months, and that he had incurred $24,575.73 in medical bills up to that 

point. The jury awarded him $24,000.00, or roughly ninety-eight percent of his 

medical bills. We cannot say that this award was substantially inadequate, or 

that the trial court erred by denying the Longs’ motion to correct error and 

request for additur.

[22] This case required the jury to determine the extent to which the October 2009 

accident aggravated Phillip’s longstanding degenerative back problems. The 

jury had to weigh the testimony of several expert witnesses along with Phillip’s 

testimony regarding his subjective pain levels before and after the accident. In 
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complicated factual scenarios like this, we rely heavily on juries to use their 

wisdom and judgment to decide what compensation is appropriate. In this 

case, the jury was not convinced that Phillip’s pain and suffering would not 

have occurred absent the new accident. Ultimately, the Longs’ argument that 

the extra jury instructions had a subtle psychological effect that influenced the 

jury to reduce its damages award is pure speculation and is therefore 

unavailing.

[23] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.