State v. Hipkiss

367 N.E.2d 1137, 174 Ind. App. 377, 1977 Ind. App. LEXIS 987
CourtIndiana Court of Appeals
DecidedOctober 4, 1977
DocketNo. 2-376A104
StatusPublished

This text of 367 N.E.2d 1137 (State v. Hipkiss) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hipkiss, 367 N.E.2d 1137, 174 Ind. App. 377, 1977 Ind. App. LEXIS 987 (Ind. Ct. App. 1977).

Opinion

CASE SUMMARY

Buchanan, J.

Defendant-Appellant State of Indiana (the State) appeals from an adverse judgment awarding Ten Thousand ($10,000.00) Dollars to Plaintiff-Appellee Milton Hipkiss (Hipkiss) for personal injuries resulting from being gored by a buffalo at Brown County State Park, claiming one of its tendered instructions should have been given and the damages awarded Hipkiss were excessive.

We affirm.

FACTS

The facts most favorable to the judgment are:

On September 18, 1971, Hipkiss and his wife were camping in Brown County State Park. After dinner Hipkiss walked over to a group of animal pens. As he stood outside the fence of one of the pens observing a cow buffalo, a male (bull) buffalo charged the open wire and post fence and gored Hipkiss in the groin.

Although there was evidence presented that the buffalo was known to park employeees to be mean and temperamental, there were no warning signs outside the pen.

[379]*379Hipkiss was taken to the hospital and surgery was performed on the injured area. His total expenses (including medical expenses and two weeks of lost wages) amounted to approximately One Thousand ($1,000.00) Dollars.

Hipkiss testified the wound incapacitated him at work and that he experienced “quite a bit of pain even up until today” (over one year late) . . . and “I have a hole inside that area”.

The jury returned a verdict in favor of Hipkiss and awarded him Ten Thousand ($10,000.00) Dollars.

ISSUES

Issue One

Whether the court erred in refusing to give the State’s tendered Instruction No. 1.

Issue Two

Whether the damages awarded were excessive.

PARTIES’ CONTENTIONS-As to ISSUE ONE, the State claims the instruction pertaining to proximate cause given by the court did not cover foreseeability.

Hipkiss responds that taken as a whole the instructions given by the court covered all aspects of the law applicable to the case.

As to ISSUE TWO, the State urges that an award of damages which is nine times the actual loss suffered by Hipkiss is excessive as a matter of law.

Hipkiss counters with the argument that there is no indication that the jury was motivated by passion, partiality, prejudice or corruption.

DECISION

CONCLUSION —The court did not err in refusing to give the State’s tendered Instruction No. 1.

The tendered Instruction reads as follows:

[380]*380For the plaintiff to recover from the defendant, plaintiff must establish by a preponderance of the evidence that some negligent conduct by that defendant was a proximate cause of injury to plaintiff.
A proximate cause of an injury is that act or conduct which directly causes or fails to prevent an injury that might reasonably have been anticipated to result and which would not have resulted but for that act or conduct.

It is well established that even if an instruction is a correct statement of the law, error cannot be predicated upon the trial court’s refusal to give it if its subject matter is adequately covered by other instructions. Frankfort v. Owens (1976), 171 Ind. App. 566, 358 N.E.2d 184; Chrysler Corp. v. Alumbaugh (1976), 168 Ind. App. 363, 342 N.E.2d 908; Honey Creek Corp. v. WNC Development Co. (1975), 165 Ind. App. 141, 331 N.E.2d 452; McGee v. Knowles (1970), 147 Ind. App. 76, 258 N.E.2d 417.

Court’s Instruction No. 3 clearly defines the law of proximate cause:

Negligence, either on the part of the Plaintiff or the Defendant, is the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances, or the doing of some thing which a reasonably careful and prudent person would not have done under the same or like circumstances; in other words, negligence is the failure to exercise reasonable or ordinary care.

Reasonable care or ordinary care, on the part of both the Plaintiff and the Defendant, is such care as a reasonably careful and ordinarily prudent person would exercise under the same or similar circumstances.

The term “proximate cause” means that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury complained of and without which the result could not have occurred.

The State complains that Court’s Instruction No. 3 does not refer to foreseeability. However, we note that Plaintiffs Instruction No. 2, which was given by the court, takes care of any possible omission in that regard.

[381]*381Defendant, State of Indiana, was charged with the duty, not only to use care not to injure the plaintiff by negligent activities, and warn him of latent dangers of which it knew, but was also charged by law with the duty of inspecting the premises to discover possible dangerous conditions and taking the reasonable precaustions [sic] to protect Mr. Hipkiss from dangers which were foreseeable from the arrangement or use of the premises. In this regard, the fact that the premises were open to the public must have been taken into account by the defendant, State of Indiana.
Therefore, if in this case you find that the defendant, State of Indiana, breached any of these duties, then I instruct you the defendant, State of Indiana was negligent.

That proximate cause is discussed in one instruction and foreseeability covered in another is unimportant, for all instructions must be read as a whole and no single instruction need contain all the law applicable to the case. See Evans v. Breeden (1975), 164 Ind. App. 558, 330 N.E.2d 116; Dudley Sports Co. v. Schmitt (1972), 151 Ind. App. 217, 279 N.E.2d 266.

CONCLUSION —The damages awarded were not excessive.

It has been consistently held in Indiana that in order to reverse an award for damages, the damages must be so excessive as to indicate that the jury was motivated by passion, partiality, prejudice, or corruption. Hidden Valley Lake, Inc. v. Kersey (1976), 169 Ind. App. 339, 348 N.E.2d 674; Richmond Gas Corp. v. Reeves (1973), 158 Ind. App. 338, 302 N.E.2d 795.

The State attributes substantial significance to the fact that Hipkiss’ lost wages and medical expenses were approximately One Thousand ($1,000.00) Dollars and the award was for Ten Thousand ($10,000.00) Dollars.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Richmond Gas Corporation v. Reeves
302 N.E.2d 795 (Indiana Court of Appeals, 1973)
Hidden Valley Lake, Inc. v. Kersey
348 N.E.2d 674 (Indiana Court of Appeals, 1976)
Evans Ex Rel. Evans v. Breeden
330 N.E.2d 116 (Indiana Court of Appeals, 1975)
Honey Creek Corp. v. WNC Development Co.
331 N.E.2d 452 (Indiana Court of Appeals, 1975)
Frankfort v. Owens
358 N.E.2d 184 (Indiana Court of Appeals, 1976)
Chrysler Corporation v. Alumbaugh
342 N.E.2d 908 (Indiana Court of Appeals, 1976)
Dudley Sports Co. v. Schmitt
279 N.E.2d 266 (Indiana Court of Appeals, 1972)
State v. Daley
287 N.E.2d 552 (Indiana Supreme Court, 1972)
McGee v. Knowles
258 N.E.2d 417 (Indiana Court of Appeals, 1970)
State v. Daley
287 N.E.2d 552 (Indiana Court of Appeals, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
367 N.E.2d 1137, 174 Ind. App. 377, 1977 Ind. App. LEXIS 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hipkiss-indctapp-1977.