Webber v. Butner

In action seeking recovery for personal injuries when tree branch fell on plaintiff while plaintiff and defendant were cutting down tree on defendant’s property, Dist. Ct. erred in allowing defendant to present evidence that plaintiff was not wearing hard hat at time of incident and to argue that said failure constituted evidence of plaintiff’s comparative fault with respect to his claim. Under Indiana law, jury may allocate as comparative fault only such fault that it finds to have been proximate cause of plaintiff’s claimed injuries. As such, evidence that plaintiff was not wearing hard hat should not have been admitted to establish plaintiff’s comparative fault, since: (1) defendant did not argue that plaintiff’s failure to use hard hat caused tree branch to fall on his head; and (2) no expert testified that plaintiff’s injuries would have been any different if plaintiff had been wearing hard hat. Moreover, said error was prejudicial, where jury’s finding that plaintiff was 51 percent at fault precluded plaintiff from obtaining any recovery for his injuries.