## Facts

- Ball State University hired Hagerman Construction, Inc. as prime contractor to build a basketball arena.
- Anthony G. Copeland, an ironworker employed by a subcontractor, fell approximately forty-five feet to his death through an uncovered opening in a precast concrete floor.
- The opening was intended to be covered or guarded as construction progressed, but it remained open and unguarded on the day of the accident.
- Theresa Copeland, as administratrix of Anthony’s estate, sued Hagerman for wrongful-death negligence; Crown-Corr, Inc., a subcontractor, was also involved in the case.
- Copeland presented expert and lay testimony about construction-industry custom and practice that general contractors typically cover or guard floor openings and about responsibility for site safety.
- The jury awarded $4,750,000 in damages, allocating 100% fault to Hagerman and 0% fault to Crown-Corr.
- Hagerman sought contractual indemnity from Crown-Corr and a credit (set-off) based on Copeland’s pretrial settlement with another contractor, Sater Electric, Inc.

## Issues

1. Whether excluding deposition testimony of an unavailable expert witness warranted reversal.
2. Whether evidence of Hagerman’s post-accident safety measures was admissible for a non-negligence purpose.
3. Whether the trial court properly excluded evidence of IOSHA non-citation of Hagerman and IOSHA violations by another contractor.
4. Whether the trial court properly excluded evidence of the decedent’s blood-alcohol content.
5. Whether industry custom and practice evidence was admissible to inform the standard of care and the meaning of safety-related responsibilities.
6. Whether collateral-source payment evidence was properly excluded.
7. Whether challenged jury instructions (including sudden emergency, responsibility for safety, and indemnity) required reversal.
8. Whether Hagerman was entitled to a set-off against the judgment based on Copeland’s settlement with Sater Electric.
9. Whether the damages award was excessive.

## Decision

- The court affirmed the negligence judgment and the $4,750,000 verdict against Hagerman, including the 100% fault allocation to Hagerman.
- Any error in excluding the expert’s deposition was harmless because similar testimony was otherwise admitted.
- Evidence of subsequent remedial measures was properly admitted for the limited purpose of showing Hagerman’s control over the hazardous area.
- The trial court acted within its discretion in excluding IOSHA-related evidence as unreliable/hearsay and potentially confusing to the jury.
- Excluding the decedent’s blood-alcohol evidence was upheld due to foundational and reliability concerns.
- Admission of construction-industry custom and practice evidence was upheld as relevant to negligence and safety-responsibility questions, though not conclusive of duty.
- Exclusion of collateral-source payment evidence was upheld under Indiana’s limits on presenting such benefits to the jury.
- An error in the indemnity instruction was harmless because the jury assigned Crown-Corr 0% fault.
- The case was remanded solely to address Hagerman’s requested set-off for Copeland’s settlement with Sater Electric to avoid double recovery.
- The court rejected the claim that the verdict was excessive.

## Legal Principles

- Evidence of industry custom and practice may be admitted as probative, though not dispositive, evidence of the standard of care in construction negligence cases and may assist in evaluating safety-related responsibilities reflected in contract performance.
- Evidence of subsequent remedial measures may be admitted for limited purposes other than proving negligence, including to show control over the area or instrumentality.
- Trial courts have discretion to exclude regulatory agency materials (including non-citations or violation findings) when they present hearsay, reliability, or jury-confusion risks in civil negligence trials.
- Evidence offered to show intoxication or impairment may be excluded absent an adequate foundation establishing reliability and relevance.
- Collateral-source benefits generally may not be presented to the jury to reduce a tort recovery in a manner inconsistent with governing statutes and evidentiary rules.
- Instructional error is harmless when the jury’s findings render the instruction incapable of affecting the outcome.
- A plaintiff may not obtain double recovery; a defendant is entitled to an appropriate credit/set-off for overlapping settlements when required to prevent duplicative compensation.

## Conclusion

The court left intact the jury’s finding that the prime contractor was solely at fault for a fatal fall through an unguarded opening and upheld key evidentiary and instructional rulings, but remanded for proceedings to determine a settlement set-off to prevent double recovery.


Hagerman Construction, Inc. v. Copeland, 697 N.E.2d 948 (Ind. Ct. App. 1998)