Jennifer Nelson for www.theindianalawyer.com
A trial court did not abuse its discretion when it set aside a jury verdict allocating 70 percent of fault to a motorcyclist who hit a dog that darted in front of his bike, the Indiana Court of Appeals ruled. The motorcyclist was injured in the accident and sued the dog’s owners.
Steve Stewart was driving his motorcycle when he saw a pickup truck begin to exit a gas station. Believing the truck would pull out in front of him, he slowed down, but the truck braked and Stewart continued down the road. A few seconds later, a dog belonging to Dawn Warrick and her son, Nathan, darted out into the road. He hit the dog, lost control of his bike and injured his shoulder, collarbone, back, leg and foot. The dog was tied up in the Warricks’ yard, but slipped out of its collar.
No testimony was presented that Stewart was speeding at the time of the crash. He sued the Warricks and the jury assigned 70 percent of the fault to him. Because he was found to be more than 50 percent at fault, the trial court entered judgment in favor of the Warricks.
Stewart filed a motion to correct error, which the court granted. It set aside the jury verdict as against the weight of the evidence and granted a new trial. The appeals court agreed that a new trial was warranted.
In Dawn Warrick and Nathan Parrish v. Steve and Mitzi Stewart, 92A03-1407-CC-257, Judge L. Mark Bailey wrote that the special findings by the judge show that he considered evidence of the 102-foot slide in conjunction with the investigating officer’s testimony regarding Stewart’s speed. And no witness, including Stewart, testified that he was speeding at the time of the accident.
“Based on the special findings, we understand the trial court’s theory to be that the weight of the evidence demanded a greater allocation of fault to the Warricks for their negligence in improperly restraining the dog than to Stewart for his driving, even though Stewart may have been distracted at some point by another potential hazard on the road. There was ample evidence presented that the Warricks negligently failed to restrain the dog and that, but for their negligence, the dog would not have been in the path of Stewart’s motorcycle in the first place,†Bailey wrote.
