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Hawkins v. Cannon5/2/2005
court gave the following final instruction on proximate cause to the jury:
Final Instruction Number Seven:
It is not necessary that the defendant's negligence is the sole cause or even the immediate cause of the injury. If the defendant's act or omission was a factor in producing some injury of which the complaint is made, and the particular injury suffered is of the class of injuries which was reasonably foreseeable to result from such negligence, then that negligent act or omission is a proximate cause of the injury.
(Appellant's App. p. 32) (emphasis added). Hawkins now asserts that the second sentence of this final instruction was contrary to the Indiana Pattern Jury Instruction on proximate cause, and should have read " f the defendant's act or omission was a substantial factor. . . ."
The Indiana Pattern Jury Instructions define proximate cause as follows: An act or omission is a proximate cause of an [injury] if the [injury] is a natural and probable consequence of the act or omission. Indiana Pattern Jury Instructions (Civil) ยง 5.06 (2d. 2003). Clearly, the phrase "substantial factor" is not used in this definition. Furthermore, nowhere in the comments to the Indiana Pattern Jury Instructions on proximate cause is the phrase "substantial factor" ever mentioned. Id.
Nevertheless, even if final instruction seven is ambiguous, we can look to the trial court's other final instructions for any clarification because this instruction was not mandatory. In Ill. Cent. Gulf R.R. Co. v. Parks, 390 N.E.2d 1073, 1077 (Ind. Ct. App. 1979), we held that a mandatory instruction is one which unequivocally charges the jurors that, if they find from a preponderance of the evidence that a certain set of facts exists, they must render a verdict in accordance therewith for the plaintiff or the defendant. However, instructions which state propositions of law without incorporating a factual situation are not mandatory. United Farm Bureau Mut. Ins. Co. v. Cook, 463 N.E.2d 522, 526 (Ind. Ct. App. 1984). Therefore, "when an instruction is not mandatory in nature, it must be considered with all of the other instructions given to the jury, and any ambiguity, inaccuracy or incompleteness of one instruction may be cured by another instruction not inconsistent therewith." Jordan v. Talaga, 523 N.E.2d 1174, 1189 (Ind. Ct. App. 1989) (quoting Estate of Hunt v. Bd. of Com'rs, Henry County, 526 N.E.2d 1230, 1263 (Ind. Ct. App. 1988), reh'g denied, trans. denied), trans. denied. Because final instruction number seven did not incorporate a factual situation, it was not mandatory and we can look to other final instructions for clarification. After reviewing the record we find that final instruction six cures any ambiguity found in final instruction seven. The trial court's final instruction six states as follows:
"Proximate Cause" is that cause which produces the injury complained of and without which the result would not have occurred. That cause must lead in a natural and continuous sequence to the resulting injury, unbroken by any efficient intervening cause.
(Appellee's App. p. 15). Accordingly, final instruction six clarifies the meaning of the proximate cause definition in final instruction seven because it introduces the "but for" test into the definition of proximate cause. In Gates v. Riley ex rel Riley, 723 N.E.2d 946, 950 (Ind. Ct. App. 2000), we held that the "but for" test is relevant because proximate cause requires, at a minimum, that the harm would not have occurred but for the defendant's conduct. Therefore, we find that even if final instruction seven is ambiguous, it is clarified by final instruction six's unambiguous definition of proxim
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