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Schultz v. Ford Motor Co.2/21/2005
p. 2003), trans. denied (2004); Hartford Steam Boiler Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1142 (Ind. Ct. App. 2002), trans. denied (2003).
Where we conclude that a trial court erred in instructing the jury, reversal is not always warranted. Armstrong, 785 N.E.2d at 287. However, if an instruction incorrectly states the law, this court will "assume that the erroneous instruction influenced the verdict and will reverse unless the verdict would have been the same under a proper instruction." Wright, 774 N.E.2d at 895.
DISCUSSION AND DECISION
Prior to and during trial, the Schultzes objected to the trial court reading Instruction 23 based on Ford's compliance with FMVSS 216. On appeal, they again argue that the trial court erred in giving Instruction 23.
I. Waiver
Prior to responding to the Schultzes' argument that Instruction 23 is an incorrect statement of law, Ford contends that the Schultzes have waived this issue. Citing to Ind. Appellate Rule 46(A)(8)(e), Ford argues that, in order to appeal the use of this instruction, the Schultzes were required to include a verbatim copy of the instruction and the verbatim objections thereto in the argument section of their brief. Ford contends that failure to comply with this rule results in waiver. Collins v. State, 509 N.E.2d 827, 831 (Ind. 1987) (analyzing Ind. Appellate Rule 8.3, the predecessor to Rule 46).
The requirements under Rule 46(A)(8)(e) are more than mere formality. Reed v. State, 702 N.E.2d 685, 690 (Ind. 1998) (analyzing the predecessor to Ind. Appellate Rule 46). They play an important role in assuring that this Court has a complete and accurate record of what transpired before the trial court. Id. "In the context of jury instruction issues, the requirements ensure that the Court has a record of what the jury was actually instructed so that it may make informed decisions as to the propriety and the consequences of the giving or the refusing of any instructions." Id.
Here, the Schultzes set forth the verbatim language of Instruction 23 on pages 2-3 of their brief. Appellants' Brief at 2-3. Furthermore, while the extensive nature of the Schultzes' objections to Instruction 23 prevented them from setting forth their verbatim objections, the Appellants' Brief references the appendix pages on which these objections can be found. Appellants' Brief at 2 (citing Appellants' Appendix at 85-101). Both Ford and the trial court fully understood the language to which the Schultzes objected and the reasons for that objection. As such, we find that the Schultzes did not waive this issue on appeal. See Wilkinson v. Swafford, 811 N.E.2d 374, 380 n.5 (Ind. Ct. App. 2004) (allowing the review of an instruction when it is included in the appellant's appendix).
II. The Instruction on Governmental Compliance Presumption
At trial, the Schultzes objected to any jury instruction derived from either IC 34-20-5-1 or Indiana Civil Pattern Jury Instruction 7.05(D) based on Ford's purported compliance with FMVSS 216.
IC 34-20-5-1 provides:
In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product:
(1)was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled; or
(2)complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by
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