Webber v. Butner, No. 18-2866 (7th Cir. 2019)Annotate this Case
Webber, who was not a professional logger, was cutting down a tree on property owned by his friend, Butner, when a branch fell and hit Webber on the head, causing severe injuries. Webber sued for negligence, alleging that Butner, as the property's owner, had a duty to take reasonable steps to protect Webber’s safety and that Butner assumed a specific duty to Webber when he agreed to look out for hazards and failed to warn Butner of the falling branch. At trial, the court admitted evidence that Webber was not wearing a hardhat while cutting the tree and instructed the jury that the evidence could not support a defense of failure to mitigate damages but could show assumption of risk and comparative fault and whether Webber acted as a reasonably careful person. The jury apportioned 51% of the fault to Webber and 49% to Butner. Under Indiana’s modified comparative fault statute, Webber recovered nothing.
The Seventh Circuit ordered a new trial. In determining 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. The fact that Webber was not wearing a hardhat did not cause the branch to fall and hit him on the head. The admission of this evidence and the jury instruction were errors that were not harmless because the jury decided on a “razor‐thin split.”