ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE J. David Agnew Dale W. Eikenberry Lorch Naville Ward LLC Elizabeth S. Schmitt New Albany, Indiana Wooden McLaughlin LLP Indianapolis, Indiana William H. Kelley FILED Thaddeus C. Kelley Sep 03 2020, 8:58 am
Kelley Law Offices LLC CLERK Indiana Supreme Court Bloomington, Indiana Court of Appeals and Tax Court
IN THE COURT OF APPEALS OF INDIANA
Darlene Perkins, September 3, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-PL-99 v. Appeal from the Washington Circuit Court Kathy Fillio, The Honorable Larry W. Medlock, Appellee-Defendant Judge Trial Court Cause No. 88C01-1703-PL-183
May, Judge.
[1] Plaintiff, Darlene Perkins, appeals following a jury verdict in favor of
Defendant, Kathy Fillio. Perkins raises three issues on appeal, which we restate
as: (1) whether the trial court committed reversible error when it gave a jury
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 1 of 19 instruction modeled after Model Civil Jury Instruction 1929; (2) whether the
trial court erred by instructing the jury about the duty to maintain a proper
lookout; and (3) whether a mistrial was necessary because Fillio flagrantly
violated a motion in limine. We affirm.
Facts and Procedural History 1
[2] Fillio owns a farm in Salem, Indiana. She keeps pets and livestock on the farm,
including goats and sheep. Fillio also owns property in Florida and splits her
time between the two states. Dennis Slate, Fillio’s half-brother, sometimes
would care for Fillio’s Indiana home and animals while Fillio was in Florida.
[3] In 2014, a steer broke its leg while Fillio was in Florida. Slate was not able to
contact Fillio about the injured steer, so he asked his ex-wife, Perkins, for help
because she was more knowledgeable about caring for farm animals than he
was. Slate did not tell Fillio in advance that he was going to ask Perkins for
help, but Perkins went to Fillio’s farm and assisted Slate. 2 The steer did not
recover from its injury, so Slate arranged for an Amish man to buy the steer and
butcher it.
1 We held oral argument on this matter remotely via Zoom on August 12, 2020. We appreciate counsel’s flexibility in participating in an oral argument in this novel manner and commend counsel on their thorough presentation of the issues. 2 Slate and Fillio gave conflicting accounts regarding whether Slate ever told Fillio that Perkins helped him care for the injured steer.
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 2 of 19 [4] Even after the incident with the steer, Slate continued to care for Fillio’s
Indiana farm and animals while she was in Florida. In August 2016, Fillio left
Indiana to spend six weeks in Florida, and she asked Slate to care for her
property and animals while she was away. During Fillio’s absence, Slate
noticed a goat lying down near the edge of its pen, and the goat did not respond
when Slate nudged the animal, trying to get it to stand. Slate then called Fillio
to let her know about the sick goat. Fillio told Slate to “to leave [the goat]
alone.” (Tr. Vol. II at 172.) She did not give Slate any further instructions
about caring for the animal. During the phone call, Slate did not mention
asking Perkins for help with the goat.
[5] A few days later, Slate tried to call Fillio again about the sick goat, but he could
not reach her. Slate drove to Perkins’ house in Corydon and told her about the
goat, and Perkins agreed to assist him. They first drove to the Tractor Supply
store and bought antibiotics and electrolyte fluid to give the goat, and then they
went to Fillio’s property. Slate and Perkins entered the pen that housed the sick
goat. A hornless, white-haired ram 3 and three other goats also lived in the pen.
Slate and Perkins loaded the sick goat into a wagon. Slate pulled the wagon out
of the pen, and Perkins followed behind trying to make sure the goat’s head
stayed on the wagon. While Slate and Perkins were exiting the pen, a ram
headbutted Perkins’ buttocks. Perkins fell to the ground, injuring her right arm
and wrist. She went to the hospital later that evening and was diagnosed as
3 Dr. Dwayne Allen, a veterinarian, testified at trial that a ram is an uncastrated male sheep.
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 3 of 19 having a displaced wrist fracture. Doctors performed two surgeries on her
wrist, and Perkins attended physical therapy.
[6] Perkins filed suit against Fillio on March 13, 2017, alleging Fillio “carelessly
and negligently maintained the premises as to create an unreasonably
dangerous environment for the Plaintiff.” (Appellant’s App. Vol. II at 20.)
Perkins later amended her complaint. After the completion of discovery, Fillio
filed a motion for summary judgment. The trial court granted Fillio’s motion
after determining “Fillio had no way of knowing that Perkins would be on her
property or that the ram had any dangerous propensities.” Perkins v. Fillio, 119
N.E.3d 1106, 1109 (Ind. Ct. App. 2019). Perkins appealed. This court reversed
the grant of summary judgment and remanded for further proceedings. Id. at
1115. We held that genuine issues of material fact existed regarding whether
rams are dangerous as a class of animal, and if so, whether Fillio took
reasonable precautions under the circumstances to prevent the ram from
causing injury to invitees. Id. at 1114.
[7] The trial court held a jury trial on January 7-8, 2020. Prior to trial, the court
granted a motion in limine prohibiting “[a]ny reference to medical/social
security disability and/or alleged disability fraud.” (Appellant’s App. Vol. III at
16.) During Fillio’s cross-examination of Slate, the following exchange
occurred:
[Defense Counsel:] Mr. Slate, you were talking about all the things the Plaintiff could do before the accident, you are aware are you not that she had rheumatoid arthritis, osteoarthritis,
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 4 of 19 chronic shingles, and has been on disability since 2004, you are aware of that right?
[Slate:] No, I’m aware of that, yeah.
[Defense Counsel:] Okay.
[Slate:] But all that time she was still making Christmas trees and wreaths until this happened and now she can’t do it. She can’t work on her truck.
[Plaintiff Counsel:] Sorry, I just wanted to interject our objection just for the record.
[Court:] Objection noted.
[Defense Counsel:] And also Mr. Slate you are aware that she was having complaints of you know the fingers and her thumbs that were required to make wreaths uh since before 2004, aren’t you?
[Plaintiff Counsel:] I’m going to object before you answer.
(Tr. Vol. II at 149-50.) The court then held a hearing outside the presence of
the jury. When the jury returned, the court admonished them “that the
statement in regards to Kathy Perkins in regards to disability, you should
disregard that statement.” (Id. at 154) (errors in original). Perkins did not
move for a mistrial during the hearing outside the presence of the jury or
following the trial court’s admonishment.
[8] Prior to deliberations, the trial court read Final Instruction #6: Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 5 of 19 Every person must use the care an ordinary—ordinarily careful person would use under the same or similar circumstances. People who do not use reasonable care are negligent. Every person must maintain a proper lookout to see what should be seen through the exercise of reasonable care. A person is negligent if she does not maintain a proper lookout.
(Id. Vol. III at 140.) The trial court also read Final Instruction #30, which
stated:
An invitee is a person who[m] a property owner invites to enter or remain on her property.
An owner of property is liable for injury caused to an invitee by the property’s condition only if the owner or occupant:
(1) knew that the condition existed and realized that it created an unreasonable danger to an invitee, or should have discovered the condition and its danger;
(2) should have expected that the invitee would not discover or realize the danger of the condition, or would fail to protect herself against it; and
(3) failed to use reasonable care to protect the invitee against the danger.
To recover damages from the defendant, the plaintiff must have proven each of the following by the greater weight of the evidence:
(1) the defendant was the owner of the property;
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 6 of 19 (2) plaintiff was an invitee on the property owned by the defendant;
(3) plaintiff was injured as a result of a condition on the property; and
(4) the defendant:
(a) knew that the condition existed and realized that it created an unreasonable danger to invitee, or should have discovered the condition and its danger;
(b) should have expected that the invitee would not discover or realize the danger of the condition, or would fail to protect herself against it; and
(c) failed to use reasonable care to protect the invitee against the danger.
(Appellant’s App. Vol. II at 18-19.) The jury returned a verdict in favor of
Fillio.
Discussion and Decision I. Final Instruction #30 [9] Jury instructions are generally committed to the sound discretion of the trial
court. Torrence v. Gamble, 124 N.E.3d 1249, 1251 (Ind. Ct. App. 2019). “In
evaluating the propriety of a given instruction, we consider 1) whether the
instruction correctly states the law, 2) whether there is evidence in the record
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 7 of 19 supporting the instruction, and 3) whether the substance of the instruction is
covered by other instructions.” Hill v. Rhinehart, 45 N.E.3d 427, 439 (Ind. Ct.
App. 2015), trans. denied. We review the question of whether an instruction
correctly states the law de novo. Fechtman v. U.S. Steel Corp., 994 N.E.2d 1243,
1247 (Ind. Ct. App. 2013), trans. denied. “Instructions are to be read together as
a whole and we will not reverse for an instructional error unless the
instructions, as a whole, mislead the jury.” Buckner v. State, 857 N.E.2d 1011,
1015 (Ind. Ct. App. 2006).
[10] The Court adopted Fillio’s Proposed Final Instruction #6, which was based on
Indiana Model Civil Jury Instruction (“MCJI”) 1929 (“Duty to Invitee—
Conditions on the land”) and gave the instruction as Final Instruction #30.
MCJI 1929 reads:
[(Name) was an invitee on the property of the (owner)(occupant), (name).]
An [owner][occupant] of property is liable for injury caused to an invitee by the property’s condition only if the [owner][occupant]:
(1) knew that the condition existed and realized that it created an unreasonable danger to an invitee, or should have discovered the condition and its danger;
(2) should have expected that the invitee would not discover or realize the danger of the condition, or would fail to protect himself or herself against it; and
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 8 of 19 (3) failed to use reasonable care to protect the invitee against the danger.
[11] Perkins argues Final Instruction #30 misstated Indiana law and contends the
trial court instead should have given an instruction modeled after MCJI
1932(A).4 Perkins first asserts this court’s prior opinion, which reversed the trial
court’s grant of summary judgment, established that Perkins was an invitee
pursuant to the law of the case doctrine. 5 She then argues that, even if the law
4 MCJI 1932(A) (“Duty to Invitee—Elements and Burden of Proof—Activity on the Land”) states:
An [owner][occupier] of property is liable for injury caused to an invitee due to activities that happen on the land if [plaintiff][proves][has proven] each of the following by the greater weight of the evidence:
(1) [defendant] was the [owner][occupier] of property;
(2) [plaintiff] was an invitee on the property [owned][occupied] by [defendant];
(3) [plaintiff] was injured as a result of [describe the act or failure to act from which the injury arose]; and
(4) [defendant] failed to use reasonable care to protect the invitee against [describe the act or failure to act from which the injury arose].
(emphases in original). 5 Perkins directs our attention to footnote 2 of this court’s opinion following summary judgment:
Fillio concedes that Perkins was invited upon the property by Slate but does not concede that she was an invitee of Fillio. In our view, this distinction does not help Fillio, as it was foreseeable that Slate might have to invite others onto the Property to help care for the animals. In fact, Fillio was aware Slate had done this in 2013, when Slate invited Perkins onto the Property to assist him with a sick steer. Although
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 9 of 19 of the case doctrine did not apply in this instance, Final Instruction #30 was
erroneous because Perkins’ status on the land was a question of law to be
decided by the trial court, not the jury. We deal with these two arguments
separately.
[12] “[T]he law of the case doctrine provides that an appellate court’s determination
of a legal issue binds both the trial court and the appellate court in any
subsequent appeal involving the same case and substantially the same facts.”
Dutchmen Mfg., Inc. v. Reynolds, 891 N.E.2d 1074, 1082 (Ind. Ct. App. 2008),
trans. denied. This doctrine prevents the needless re-litigation of issues
previously decided. Id. “[Q]uestions not conclusively decided in the earlier
appeal do not become law of the case.” Id. at 1083. Nor do statements made
in dicta establish law of the case. See State Farm Fire & Cas. Co. v. Radcliff, 18
N.E.3d 1006, 1012 (Ind. Ct. App. 2014) (stating part of previous appellate
decision in case was dicta and therefore not binding or established as law of the
case), reh’g denied, trans. denied.
[13] The issue decided on appeal following summary judgment was whether rams
were dangerous as a class of animal, and this court held that there was a
genuine dispute of fact regarding whether they were. Perkins, 119 N.E.3d at
Fillio denied that she knew Perkins was the person Slate invited onto the Property, she was aware that he had invited someone in the past.
Perkins, 119 N.E.3d at 1111 n.2.
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 10 of 19 1114. Perkins’ status on the land was not necessary to that determination, and
therefore, we hold her status on the land was not established as law of the case.
See Dean V. Kruse Foundation, Inc. v. Gates, 973 N.E.2d 583, 591 (Ind. Ct. App.
2012) (holding law of the case doctrine did not apply because the relevant issue
was not decided directly or by implication in previous appeal), trans. denied. We
also note the law of the case doctrine does not apply because relevant, new facts
came to light on remand through Fillio’s testimony. Cf. Terex-Telelect, Inc. v.
Wade, 59 N.E.3d 298, 304 (Ind. Ct. App. 2016) (holding law of the case
doctrine applied when the evidence considered on the first appeal was “the
same evidence before us now”), trans. denied.
[14] Next, we turn to Perkins’ argument that the trial court should have determined
her status on the land. A person’s status on land is generally a question of law
for the trial court to decide. Pickering v. Caesars Riverboat Casino, LLC, 988
N.E.2d 385, 389 (Ind. Ct. App. 2013). However, a person’s status on land
“may turn on factual issues that must be resolved by the trier of fact.”
Kopczynski v. Barger, 887 N.E.2d 928, 931 (Ind. 2008). Fillio points to her
testimony at trial:
[Fillio’s counsel]: Alright, good. Now you knew, would you agree with me that if anybody’s going to [sic] out there and take a look at that goat, they’re going to have to go into the pen with the goat?
[Fillio:] Dennis was not supposed to go in the pen. Nobody’s ever supposed to go in those pens and it’s not because there [sic] dangerous, it’s because I don’t want them to go in those pens.
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 11 of 19 Even -he was putting food over the gate but I told him I says if they’re pills if they move them into the center, don’t go in and get them. Do not go in that pen to get them just put it over the gate.
[Fillio’s counsel:] Okay, what did you tell him to do if there was a goat dying?
[Fillio:] I didn’t tell him anything to do.
*****
[Fillio’s Counsel:] What was your expectation that Dennis would do, if an animal became sick or injured?
[Fillio:] He would just leave it alone until I got back home.
[Fillio’s Counsel:] Okay, so um, you limit -you limited the scope of what he was supposed to be doing in your mind to just feeding and watering the animals, is that right?
[Fillio:] That’s it. That was it the only responsibility he had to do.
[Fillio’s Counsel:] Okay, so you did not leave him responsible for caring for the animals other than just feeding them?
[Fillio:] Just feeding and water.
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 12 of 19 [Fillio’s Counsel:] So, did you leave anybody else with any responsibility beyond feeding them to care for the animals?
[Fillio:] No.
(Tr. Vol. II at 175, 180-81) (emphasis added). In her closing argument, Fillio
stressed the above testimony, arguing Slate did not have permission to enter the
animal pen or invite others into the pen. Therefore, as Fillio notes in her brief,
there were two questions of fact the jury was required to resolve: (1) “was
Perkins an invitee when she entered the property, and did she maintain that
status as an invitee when she entered the pen?;” and (2) “whether Perkins had
an implied invitation from Fillio to be on the property, and if she did, whether
she exceeded that invitation by going into the pen with the ram.” (Appellee’s
Br. at 22.) The trial court did not err in leaving the question of Perkins’ status
to the jury because the status turned on factual questions. See Handy v. P.C.
Building Materials, Inc., 22 N.E.3d 603, 608-10 (Ind. Ct. App. 2014) (holding
genuine issue of material fact remained for trier of fact to decide regarding
whether hardware store patron was an invitee or licensee at time of injury),
trans. denied.
[15] Final Instruction #30 modified the bracketed first line of MCJI 1929 to state:
“An invitee is a person who[m] a property owner invites to enter or remain on
her property.” (Tr. Vol. III at 140.) Perkins contends this modification gave
jurors the misimpression that only the property owner could invite a person
onto the premises for that person to be considered an invitee. However, Perkins
failed at trial to take issue with the omission of the word “occupant” from Final Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 13 of 19 Instruction #30, and she did not tender an instruction indicating the numerous
ways an invitation onto a premises may be extended. Thus, Perkins' argument
is waived. See Anderson v. Taylor, 289 N.E.2d 781, 785 (Ind. Ct. App. 1972)
(“The law is well settled that if the court fails to cover some pertinent point then
it is the obligation and duty of the party desiring to have that particular point
covered in the instructions to tender his instruction on the same.”).
[16] Finally, Perkins argues that by modeling Final Instruction #30 after MCJI 1929
rather than MCJI 1932(A), the court instructed the jury that she was required to
prove elements she did not have to prove – such as that maintaining a domestic
animal was a condition of the land rather than an activity conducted on the
land. However, in the context of this case, we do not see a meaningful
difference. Landowners owe invitees a duty of reasonable care to protect them
from injuries that result from conditions of the land and injuries that result from
activities conducted on the land. Rogers v. Martin, 63 N.E.3d 316, 323 (Ind.
2016); see also Harris v. Traini, 759 N.E.2d 215, 223 (Ind. Ct. App. 2001) (“The
duty of reasonable care [a landowner owes an invitee] extends not only to harm
caused by a condition on the land but also to activities being conducted on the
land.”), reh’g denied, trans. denied. MCJI 1929 adds two elements not present in
MCJI 1932: (1) that the defendant knew the condition existed and created a
danger to invitees; and (2) that the defendant should have recognized invitees
would not protect themselves from the danger. However, to hold a defendant
liable for harm caused by the defendant’s animal, a plaintiff must prove
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 14 of 19 one (or both) of the following: (1) a defendant’s knowledge that a particular animal has a propensity for violence or (2) a defendant’s ownership of a member of a class of animals that are known to have dangerous propensities, as the owner of such an animal is bound to have knowledge of that potential danger.
Perkins, 119 N.E.3d at 1112. If the animal possesses dangerous propensities, the
owner must take reasonable precautions to prevent the animal from causing
harm. Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993). Therefore, Perkins was
required to prove Fillio knew, or should have known, that her ram had a
dangerous propensity and that someone on the property would not recognize
that danger. In fact, Final Instruction #13 stated:
[T]he owner of a domestic animal is not liable for injuries caused by the animal unless the animal had dangerous propensities known, or which should have been known, to the owner. A dangerous propensity is propensity or tendency of an animal to do any act which might endanger the safety of person or property in given situation. If an individual animal lacks dangerous propensities, the rule is simply that the owner of a domestic animal is bound to know the natural propensities of the particular class of animals to which it belongs. In either event, the owner must exercise reasonable care to guard against the propensities and to prevent injures reasonably anticipated from them.
(Appellee’s App. Vol. II at 8.) Thus, Final Instruction #30 did not require
Perkins to prove additional, unnecessary elements; rather, the instruction
simply restated elements Perkins was already required to prove. See Clay City
Consol. Sch. Corp. v. Timberman, 918 N.E.2d 292, 301 (holding trial court’s
instructions accurately instructed the jury regarding proximate cause).
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 15 of 19 For all these reasons, Perkins has not demonstrated the trial court abused its
discretion when it gave Final Instruction #30.
II. Final Instruction #6 [17] Perkins next contends Final Instruction #6 erroneously imposed duties on her
that are not applicable in the premises liability context. Final Instruction #6
was fashioned after two model jury instructions, MCJI 1301 and MCJI 1303.
MCJI 1301 states: “Every [motor vehicle driver][and][pedestrian] must use the
care an ordinarily careful person would use under the same or similar
circumstances. [Drivers] [and] [Pedestrians] who do not use reasonable care
are negligent.” MCJI 1303 states: “Every [driver][pedestrian] must maintain a
proper lookout to see or hear what should be seen or heard through the exercise
of reasonable care. A person is negligent if [he][she] does not maintain a proper
lookout.”
[18] Perkins concedes that maintaining a proper lookout when crossing the street is
necessary and reasonable because oncoming traffic is a known hazard. See
Anderson v. Pre-Fab Transit Co., 409 N.E.2d 1157, 1164 (Ind. Ct. App. 1980)
(“[A] pedestrian stepping onto a street from a curb or place of safety has a duty
to make sure he is not stepping into the path of an oncoming car which would
be unable to stop.”), reh’g denied. However, Perkins believes she was not
similarly situated to a pedestrian crossing the street. We disagree.
[19] This court has recognized a duty for individuals to maintain a proper lookout in
cases that do not involve motor vehicle accidents. See Booher v. Alhom, Inc., 295
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 16 of 19 N.E.2d 841, 847-48 (Ind. Ct. App. 1973) (holding that plaintiff, injured while
helping to unload a truck, “was required by law to keep a reasonable lookout
for possible danger to himself and to act as a reasonably prudent man”); see also,
Howard v. H.J. Ricks Const. Co., 509 N.E.2d 201, 206 (Ind. Ct. App. 1987)
(stating in discussion regarding contributory negligence that a “person is
required to make reasonable use of his faculties and senses to discover dangers
and conditions to which he is or might be exposed”), reh’g denied, trans. denied.
Dr. Dwayne Allen, a veterinarian, testified that rams are herd animals and they
will protect the herd from perceived threats. He explained that “you’ve got to
be on guard all the time” if there is a ram in an animal pen. (Tr. Vol. III at 54.)
Just as a pedestrian should anticipate that cars may be traveling down a road, a
person entering an animal pen should anticipate that the animals in the pen
may behave aggressively toward an unfamiliar presence. 6 Final Instruction #6
was warranted by the evidence and was an accurate statement of law, and
Perkins has not demonstrated the trial court erred by giving the instruction. See
Kelly v. Levandoski, 825 N.E.2d 850, 867 (Ind. Ct. App. 2005) (holding evidence
warranted instruction regarding implied-in-law contract), trans. denied.
6 For example, it is tragic, but not surprising, that a killer whale at SeaWorld will engage in “horseplay” with and ultimately kill a person who sneaks into the whale’s tank after the park has closed. “Man found dead in whale tank at Florida’s SeaWorld.” http://www.cnn.com/US/9907/06/killer.whale/ [https://perma.cc/V7FC-SJNG]
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 17 of 19 III. Motion in Limine [20] Perkins argues the trial court should have declared a mistrial after Fillio
referenced Perkins’ receipt of disability benefits in violation of a motion in
limine. Our standard of review regarding a motion for mistrial is well-settled:
The decision on a motion for mistrial lies within the discretion of the trial court. A mistrial is an extreme remedy and required only when no other method can rectify the situation. A prompt admonishment advising the jury to disregard the improper testimony is usually enough to avoid a mistrial. Failure to grant a mistrial may not be asserted on appeal where an admonishment is accepted without further objection or claim that it is insufficient.
TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 213 (Ind. 2010)
(internal citations and quotation marks omitted).
After the court admonished the jury not to consider Fillio’s reference to
Perkins’ receipt of disability benefits, Perkins did not move for a mistrial or
indicate that the court’s admonishment was insufficient. Therefore, the claim is
unavailable to Perkins on appeal. See id. at 214 (holding claim of mistrial error
was not available on appeal because party made no objection or argument at
trial that the court’s admonition was insufficient).
Conclusion [21] The trial court did not err in giving Final Instruction #30, which was a
modified version of MCJI 1929. Further, the trial court did not err in
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 18 of 19 instructing the jury on Perkins’ duty to maintain a proper lookout. Finally,
Perkins cannot contend on appeal that she was entitled to a mistrial because she
failed to move for a mistrial at trial. Therefore, we affirm.
[22] Affirmed.
Robb, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Opinion 20A-PL-99 | September 3, 2020 Page 19 of 19