Court Error – Admittance of Evidence

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7^th Circuit Court of Appeals

Case Name: Johnny Webber, et al. v. Roger Butner

Case No.: 18-2866

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges.

Focus: Court Error – Admittance of Evidence

Plaintiff Johnny Webber was cut‐ ting down a tree on defendant Roger Butner’s property when a branch fell and hit Webber on the head, causing severe injuries. Webber and his wife Debora sued Butner for negligence. Webber was not wearing a hardhat when he was cutting the tree. The only issue on appeal is whether the district court erred by admitting evidence at trial that Webber was not using a hardhat and instructing the jury about considering that evidence.

This case is in federal court under diversity jurisdiction, see 28 U.S.C. § 1332, so we apply Indiana substantive tort law, which governs whether this evidence was relevant. In deter‐ mining fault, Indiana law bars admission of evidence that an injured plaintiff was not using safety equipment unless the failure to use the equipment contributed to causing the injury. See Ind. Code §§ 34‐51‐2‐7(b)(1) & 34‐51‐2‐3; Green v. Ford Motor Co., 942 N.E.2d 791, 795–96 (Ind. 2011). The fact that Webber was not wearing a hardhat did not cause the branch to fall and hit him on the head. The district court nevertheless ad‐ mitted this evidence for the purpose of apportioning fault. The admission of this evidence was an error, as was the instruction about considering the evidence. We cannot say these errors were harmless because the jury decided on a razor‐thin split when apportioning fault. The Webbers are entitled to a new trial.

The district court’s judgment for the defendant is VACATED, and the case is REMANDED for a new trial.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.