Kyle Kaszuba v. AnnaMarie Dugan Norris, as Guardian of the Estate of Christopher Dugan, an incompetent person

IN THE

Court of Appeals of Indiana FILED

Dec 30 2025, 10:22 am

CLERK

Tesla, Inc. f/k/a Tesla Motors, Inc. and Kyle Kaszuba, Indiana Supreme Court

Court of Appeals

and Tax Court

Appellants-Defendants

v.

Annamarie Dugan Norris, as Guardian of the Estate of

Christopher Dugan, an Incompetent Person,

Appellee-Plaintiff

December 30, 2025

Court of Appeals Case No.

25A-CT-198

Appeal from the Marion Superior Court

The Honorable Marianne L. Vorhees, Senior Judge

The Honorable Clayton Graham, Judge

Trial Court Cause No.

49D04-1705-CT-18411

Opinion by Judge Tavitas

Judges May and Vaidik concur.

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Tavitas, Judge.

Case Summary

[1] Tesla, Inc. f/k/a Tesla Motors, Inc. (“Tesla”), and Kyle Kaszuba (collectively,

“Defendants”) appeal the jury’s verdict for Anna Marie Dugan Norris

(“Norris”), as guardian of the Estate of Christopher Dugan (“Dugan”), an

incompetent person. Tesla’s employee, Kaszuba, was involved in a vehicular

crash with Dugan, who was driving a motorcycle, resulting in catastrophic

injuries to Dugan. A bifurcated jury trial resulted in a fault allocation of

seventy percent to Kaszuba and thirty percent to Dugan. In the second phase of

the trial, the jury determined that the total damages were $60.7 million, which

were reduced by thirty percent due to comparative fault, for a judgment of $42.2

million.

[2] On appeal, Tesla claims that the trial court erred by granting summary

judgment to Kaszuba and Norris regarding the claim that Kaszuba was acting

within the scope of his employment at the time of the crash. Additionally,

Defendants appeal, claiming multiple errors in both the liability and damages

phases of the trial. We affirm except with respect to the trial court’s ex parte

conversation with the jurors during deliberations of the damages phase of the

trial. Regarding this ex parte conversation, we conclude that a presumption of

error applies, and Norris has failed to rebut this presumption. This error

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requires a new trial on the damages phase. Accordingly, we affirm in part,

reverse in part, and remand. 1

Issues

[3] Tesla independently raises one issue, which we restate as whether the trial court

erred by granting summary judgment against Tesla regarding the claim that

Kaszuba was acting within the scope of his employment at the time of the

crash. 2 Defendants collectively raise several other issues, which we consolidate

and restate as:

I. Whether the trial court abused its discretion in allowing

certain testimony during the liability phase of the trial.

II. Whether the conduct of Norris’ counsel during the liability

phase prejudiced Defendants.

III. Whether the trial court’s ex parte discussion with the jury

during deliberations of the damages phase of the trial

warrants reversal.

Facts

[4] Kaszuba worked as a service assistant for Tesla, and his manager was Seth

Aichinger. Kaszuba generally drove his personal vehicle to and from work, but

1

We held oral argument in this matter on November 10, 2025, at the University of Notre Dame Law School.

We thank the Law School for its hospitality and counsel for their presentations.

2

Kaszuba filed an Appellee’s brief on this issue and joined in Tesla’s Appellant’s brief on the remaining

issues.

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he occasionally drove a Tesla service vehicle to his home with Aichinger’s

permission. According to Aichinger, he had an informal policy that an

employee should not return a Tesla service vehicle with less than a quarter of a

tank of gasoline. The Tesla service vehicles each had a company-issued gas

card in the vehicle.

[5] On April 24, 2017, near the end of the work day, Kaszuba was assigned to take

a company trailer to a repair shop. Kaszuba drove a 2014 white Ford F250

Tesla service truck to drop off the trailer. Due to rush hour traffic and because

Kaszuba was beyond his regular work hours, Aichinger gave Kaszuba

permission to drive the service truck home and return it in the morning.

The Crash

[6] The next morning, Kaszuba was supposed to be at Tesla’s service station by

8:00 a.m. Kaszuba performed a company-required fifteen-point inspection of

the service truck before starting his drive to the Tesla service center. Kaszuba

noticed that the service truck only had one-eighth to one-fourth of a tank of gas.

Kaszuba was driving eastbound on Rockville Road in Indianapolis, and he

decided to stop at a Speedway gas station on the north side of Rockville Road.

[7] The speed limit in this area is forty-five miles per hour. This portion of

Rockville Road has two lanes of traffic in each direction with a center turning

lane. As traffic approaches the stop light at the intersection with High School

Road, the center lane turns into a concrete curbed median with double yellow

lines leading to the concrete curbed median. To make a left turn into a parking

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lot next to the gas station, Kaszuba stopped in the center lane shortly before the

concrete curbed median began. Dugan, who was driving a motorcycle, exited

the Speedway gas station, drove westbound on the shoulder lane for several

feet, accelerated up to approximately thirty to thirty-five miles per hour, and

then merged into the right travel lane. At 7:28 a.m., as Kaszuba was making

the left turn, he struck Dugan, resulting in a severe traumatic brain injury and

partial amputation of Dugan’s foot.

[8] A diagram of the crash follows:

Ex. Vol. I p. 28 (Plaintiff’s Ex. JX355) (Kaszuba’s vehicle is yellow; Dugan’s

motorcycle is green). Dugan pulling out of the gas station and the crash were

partially recorded by surveillance cameras at the gas station.

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Complaint and Pre-Trial Proceedings

[9] In May 2017, Dugan filed a complaint against Tesla and Kaszuba. Dugan

alleged that Tesla was vicariously liable for Kaszuba’s negligence because

Kaszuba was acting within the scope of his employment. In December 2017,

Norris, Dugan’s mother and guardian, was substituted as the plaintiff after

Dugan was found to be incompetent.

[10] In July 2019, Norris filed a motion for partial summary judgment on the issue

of Tesla’s vicarious liability. Kaszuba also filed a motion for summary

judgment regarding Tesla’s vicarious liability and argued that he was acting

within the course and scope of his employment at the time of the crash. Tesla

filed a response to the motions for summary judgment and filed a cross-motion

for summary judgment. Tesla argued that, because Kaszuba was commuting to

work, he was not acting within the course and scope of his employment.

[11] The trial court granted Norris’ and Kaszuba’s motions for summary judgment

and denied Tesla’s cross-motion for summary judgment. The trial court found

that “Kaszuba was on a special errand for his employer to fill the service truck

with gas before returning to the company office. Kaszuba was not merely

commuting to and from work. But for the need to get gas, Kaszuba would not

have turned into the Speedway lot.” Appellants’ App. Vol. III pp. 241-42. The

trial court found “no genuine issue of material fact and that Kaszuba was in the

scope and course of his employment at the time of the accident.” Id. at 242.

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[12] Significant litigation revolved around motions in limine, the admissibility of

Dugan’s 2004 motorcycle crash, and the ability of Dugan to testify. Ultimately,

the trial court issued detailed orders on the motions in limine; found that

Dugan was competent to testify; and found that Dugan’s 2004 motorcycle crash

was inadmissible.

Liability Phase of the Trial

[13] By the parties’ agreement, the trial court ordered that the trial be bifurcated into

liability and damages phases. The liability phase of the jury trial began on

March 4, 2024. Dugan testified that he could not remember the crash but did

testify regarding his customs and habits while riding a motorcycle. After

Dugan’s direct testimony but before cross-examination, Defendants requested a

mistrial regarding Dugan’s “habit evidence” and Dugan’s competency. Tr. Vol.

VII p. 187. The trial court denied the motion.

[14] Officer Douglas Heustis, supervisor of the Indianapolis Metropolitan Police

Department Traffic Investigation Unit who was at the scene of the crash, was

called to testify by Norris as a skilled witness pursuant to Evidence Rule 701.

Defendants repeatedly objected to Officer Heustis’ testimony, which included

responses to hypothetical questions, moved to strike his testimony, and

requested that the trial court give a curative instruction. The trial court

overruled these objections. The trial court, however, did instruct the jury that it

“would be determining the facts of the case” and that it would “decide whether

the facts underlying the hypothetical are true or not true. . . .” Tr. Vol. VI pp.

149-50.

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[15] Immediately before Kaszuba’s testimony, during a restroom break, Norris’

attorney Nicholas Rowley had a conversation with Kaszuba and apologized for

Kaszuba being required to testify and blamed Elon Musk for the decision to

proceed with the trial. Before Kaszuba began testifying, Defendants objected to

Attorney Rowley’s comments and asked that the trial court instruct Attorney

Rowley not to speak with Kaszuba. The trial court granted the request, and

Attorney Rowley agreed not to speak with Kaszuba again.

[16] After closing arguments during the liability phase, Defendants requested a

mistrial, see Tr. Vol. IX p. 126, based on Attorney Rowley’s closing arguments

and communication with Kaszuba, which the trial court denied. The jury

found Kaszuba to be seventy percent at fault and Dugan to be thirty percent at

fault. Defendants then filed another motion for a mistrial, which the trial court

again denied.

Damages Phase of the Trial

[17] The damages phase of the trial was then presented to the jury. During

deliberations, disagreements arose between one juror and the rest of the jurors.

Juror No. 1 wrote a note to the trial court indicating that he had made up his

mind and was not going to change his mind. Defendants then requested a

mistrial. The trial court brought Juror No. 1 into the courtroom, and the juror

testified that he “made [his] decision” and “[n]obody’s going to persuade [him]

either . . . way.” Tr. Vol. XII p. 52. The juror asked that the alternate replace

him. The juror was then returned to the jury room.

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[18] The trial court sent a note to the jury asking if they were unable to reach a

verdict, and the jury responded that “they have reached an impasse and they

are unable to render a verdict.” Id. at 55-56. The trial court then asked the jury

if there was “anything the Court or attorneys can do . . . to assist” the jury. Id.

at 56. The presiding juror responded that Juror No. 1 was refusing to work

with the jury. Over Defendants’ objection, the trial court then informed the

jury that the alternate juror would not be substituted for Juror No. 1 and asked

if they were still at an impasse.

[19] Juror No. 6 then asked the trial court, “if communication has broken down and

the environment is becoming uncomfortable, hostile, . . . what can we do?” Id.

at 62. Defendants requested that the trial court grant a mistrial as to both

phases of the trial. Juror No. 1 informed the trial court that they have “PTSD”

and “[i]t’s getting to me.” Id. at 64. The presiding juror informed the trial court

that they had reached an impasse. Norris requested that Juror No. 1 be

replaced with the alternate juror, and Defendants again requested a mistrial as

to both phases.

[20] The trial court brought the presiding juror into the courtroom, and the

following discussion occurred:

THE COURT: [ ] There’s been an indication that there’s some

hostility and some problems with, I, I don’t know, just hostility

in the jury room. Is that your perception?

PRESIDING JUROR: We are trying to approach the problem

from many different angles to try to come to a verdict as a jury.

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We have frustrations because despite our efforts to accommodate

all voices and all opinions, one jury member has put his foot

down and will not elaborate on to why they came to the

conclusion. They will not elaborate on witness testimony that

they heard or weigh and they have not participated in any form

of discussion that we’ve tried [to] initiate.

THE COURT: So due to his behave [sic], right now, due to his

position, you are at an impasse.

PRESIDING JUROR: Yes.

THE COURT: Okay. Is it a safe environment right now in the

jury room? Does anybody feel threatened or coerced or

pressured?

PRESIDING JUROR: No. That jury member did express that

he does not want to feel like he’s being backed into a corner.

However, in trying to engage in any sort of conversation, he has

taken that stance that he feels that he’s being pushed into a corner

and feels defensive.

THE COURT: By the other jurors?

PRESIDING JUROR: Correct.

THE COURT: Okay. Is there anything that you think the Court

or the attorneys can do at this point other, and, and really

removing him and putting the alternate in at this point, the

posture that it’s in, is not possible. Is there anything else that you

think the Court could do or the, the attorneys could do to assist

the jury in reaching a verdict?

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PRESIDING JUROR: Are you allowed to give me examples or

options?

THE COURT: For example, is there a point of law or a point of

evidence or a fact that could be argued by the attorneys that

might assist in reaching a verdict? Or is everybody pretty much,

you know, under, in other words, sometimes in a case there

might be, oh, I don’t really understand this instruction or I don’t

really, I don’t remember this particular piece of evidence. Can

the attorneys explain it again to me? Anything like that?

PRESIDING JUROR: No.

THE COURT: Okay. And this juror number one has not, have

you observed as far as his, any medical condition that’s causing

him difficulties?

PRESIDING JUROR: I’m aware that he has diabetes, but in

checking in with juror number one, he continuously reassures the

rest of the jury that he understands his limits and his current

position is within those limits.

Id. at 65-67.

[21] After the presiding juror returned to the jury room, the trial court told the

parties that it was declaring a mistrial on the damages phase and that it would

allow the parties thirty days to submit briefs as to whether a mistrial on the

liability phase was also required. The trial court informed the parties that it was

going to go to the jury room “and tell the jury what’s happened and . . . see if

the presiding juror might talk” to the attorneys to assist the attorneys with the

retrial. Id. at 70.

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[22] Upon returning from the jury room, the trial court stated:

So when I went back in there, the jury indicated that they had

changed their mind. That they are, and Mr. Juror Number One,

is willing to work with them. They would like to have the

opportunity to continue to deliberate. I said I would have to

bring them in here and have them on the record, each of them,

affirm that they do want to continue to deliberate, that they are

not being coerced, they’re not being pressured, and that they do

want to continue to work on this case. So that’s what I told

them.

Id. at 70-71. Defendants objected that the trial court had already granted the

mistrial, and the trial court stated, “Well, I can un-grant it. It’s un-granted.” Id.

at 71. The trial court stated, “[L]et’s find out what the jury says. They were

very upset to hear that they couldn’t continue. So, go ahead. I think they have

a lot of investment in this case as well.” Id.

[23] The trial court then brought the jury into the courtroom and asked the jury:

[Y]ou indicated to me back in the jury room when I went back

there to see you just a couple of minutes ago that you do want to

continue to deliberate, that you do believe that you have resolved

the differences that you’ve had among yourselves, that you think

you can make some progress. Is that correct[?]

Id. Each juror responded that they wanted to continue deliberating, that they

were not being coerced, and that they were all “freely and in good will and

good faith wanting” to continue deliberating. Id. at 72. The trial court then

sent the jury back to the jury room to continue deliberating over Defendants’

objection.

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[24] Later, the jury indicated that it had reached a verdict, and Defendants objected

as follows:

Yes, Your Honor, I put on the record before we went off the

record that the Court had contact with the jury outside the

presence of counsel. That the result of which was immediately

that the jury changed what they had declared multiple times was

an impasse to continue deliberating. And that is a violation of

ex-parte rules that do not [sic] prohibit a Judge to have contact

with the jury during the course of deliberations outside the

presence of counsel. And so, that is an additional basis on which

we move for a mistrial. The immediate result of the Court’s

conduct with the jury which we understood the Court was having

with the jury only because it already had declared a mistrial, was

that the jury reversed course, and therefore it was the Court’s

conduct in communicating with the jury that was coercive.

Id. at 74. The trial court stated, “when I went in and I told the jury that I was

intending to declare a mistrial, the looks on their faces was shock and

amazement and they immediately said, no. That’s all it was.” Id. at 75. The

trial court denied Defendants’ motion for a mistrial.

[25] The jury found that Dugan’s total damages were $60,687,491.00. The jury then

reduced the total damages by thirty percent due to the fault allocation, for a

judgment of $42,481,243.00. 3 The trial court polled the individual jurors, and

3

Due to a math error in the verdict, Norris stipulated that “70 cents comes off the Plaintiff’s verdict.” Tr.

Vol. XII p. 79.

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each stated that this was their verdict and that they were not coerced or forced

to reach this verdict.

Post-Verdict Proceedings

[26] Defendants then filed a sixty-seven-page motion to correct error regarding both

the liability and damages phases of the trial. After a hearing on December 9,

2024, the trial court denied Defendants’ motion to correct error. The trial court

found that Defendants “without a doubt” received a fair trial and that the jury’s

verdict “was supported by the evidence.” Appellants’ App. Vol. II p. 72.

Regarding the damages phase deliberations, the trial court found:

The court did not discharge the jury. The court did not enter a

written mistrial order. The court polled the jury to ensure they

were willing to continue to deliberate and were not under

coercion or duress in doing so. The Court’s interaction in the

jury room did not cause any change in the jury’s deliberations.

They had already decided to continue to deliberate.

After the jury was polled and returned to the jury room, the jury

arrived at a verdict, which was 32% of what Plaintiff requested,

in an uneven number ($60,687,491). This indicates they carefully

considered all the evidence on damages. I find no error in how

the jury deliberations were handled, and I deny the Motion as

related to the jury deliberations during the damages phase.

Id. at 74. Defendants now appeal.

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Discussion

I. Tesla’s Vicarious Liability

[27] Tesla argues that the trial court erred by granting summary judgment to

Kaszuba and Norris regarding the claim that Tesla was vicariously liable for

Kaszuba’s negligence. Tesla argues that it was entitled to summary judgment

because Kaszuba was not operating within the scope of his employment at the

time of the crash and instead he was commuting to work. Alternatively, Tesla

argues that a genuine issue of material fact exists and that the vicarious liability

issue should have been presented to the jury. We conclude that no genuine

issues of material fact exist and that Kaszuba was acting within the scope of his

employment. Accordingly, we conclude that the trial court properly granted

summary judgment to Kaszuba on this issue. We emphasize, however, that our

holding is narrow and fact-specific, and should not be read to expand the scope

of vicarious liability beyond the unique circumstances presented by this case.

A. Summary Judgment Standard

[28] “We review summary judgment decisions de novo, and Trial Rule 56(C)

supplies the framework.” Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 684

(Ind. 2024). “The moving party is entitled to summary judgment only if the

evidence it designates in support of its motion ‘shows that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.’” Id. at 684-85 (quoting Ind. Trial Rule 56(C)). The purpose

of summary judgment is to withdraw issues from the jury when there are no

genuine factual issues for the jury to decide. Id. at 685. “Summary judgment is

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available when the nonmovant cannot prove its claim based on the undisputed

evidence[.]” Id.

[29] The summary judgment movant has the burden of making a prima facie showing

that there is no genuine issue of material fact and that it is entitled to judgment

as a matter of law. Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020). The

burden then shifts to the non-moving party which must then show the existence

of a genuine issue of material fact. Id. On appellate review, we resolve “[a]ny

doubt as to any facts or inferences to be drawn therefrom . . . in favor of the

non-moving party.” Id.

[30] “We limit our review to the materials designated at the trial level.” Gunderson

v. State, Ind. Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018). Because the

trial court entered findings of fact and conclusions thereon, we also reiterate

that findings of fact and conclusions thereon entered by the trial court aid our

review, but they do not bind us. In re Supervised Est. of Kent, 99 N.E.3d 634, 637

(Ind. 2018).

B. The trial court properly granted summary judgment to Kaszuba and

Norris on the issue of vicarious liability.

[31] “[Vicarious liability] is a legal fiction by which a court can hold a party legally

responsible for the negligence of another, not because the party did anything

wrong but rather because of the party’s relationship with the wrongdoer.”

Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1068 (Ind. 2022)

(quoting Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999)).

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“Respondeat superior is the doctrine most often associated with vicarious

liability in the tort context.” Id. This doctrine, in general, “relies on an

employer-employee or principal-agent relationship[.]” Id.

Vicarious liability will be imposed upon an employer under the

doctrine of respondeat superior when an employee has inflicted

harm while acting within the scope of employment. To fall

within the scope of employment, the injurious act must be

incidental to the conduct authorized or it must, to an appreciable

extent, further the employer’s business. An act is incidental to

authorized conduct when it is subordinate to or pertinent to an

act which the servant is employed to perform, or when it is done

to an appreciable extent, to further his employer’s business. Acts

done on the employee’s own initiative, with no intention to

perform it as part of or incident to the service for which he is

employed are not in the service of the employer and are thus

outside the scope of employment. An employee’s wrongful act

may still fall within the scope of his employment if his purpose

was, to an appreciable extent, to further his employer’s business,

even if the act was predominantly motivated by an intention to

benefit the employee himself or if the employee’s act originated

in activities so closely associated with the employment

relationship as to fall within its scope.

Sony DADC U.S. Inc. v. Thompson, 56 N.E.3d 1171, 1178-79 (Ind. Ct. App.

2016) (internal citations and quotations omitted), trans. denied. “Generally,

whether the tortious act of an employee is within the scope of employment is a

question of fact.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003). Our

Supreme Court has held, however, that “under certain circumstances the

question may be determined as a matter of law.” Id.

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[32] Tesla points out that our Supreme Court has held “an employee on his way to

work is normally not in the employment of the corporation.” Biel, Inc. v. Kirsch,

161 N.E.2d 617, 618 (Ind. 1959) (emphasis added). In Biel, the corporation’s

president drove a company vehicle and was involved in a crash on her way to

work. The Court noted that she “was on no errand for the corporation” and

“[h]er employment by the corporation had not yet started for the day.” Id.

[33] This Court has referred to this general rule as the “going and coming” rule.

Dodson v. Carlson, 14 N.E.3d 781, 783 (Ind. Ct. App. 2014), trans. denied. The

"going and coming" rule reflects the well-established principle that the mere fact

an employee is commuting to or from work does not, standing alone, bring the

employee’s actions within the scope of employment for purposes of vicarious

liability.

However, our Court has explained that “[t]he use of the

qualifying word ‘normally’ [in Biel ] merely allows for an

exception to the general rule for those instances where the

employee is not just going to work, but also performing an errand

for or otherwise providing some service or benefit to the

company, other than merely showing up for work.” Dillman v. Great

Dane Trailers, Inc., 649 N.E.2d 665, 668 (Ind. Ct. App. 1995)

(emphasis in original). Thus, “[t]he critical inquiry is . . .

whether the employee is in the service of the employer.” Warner

Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind.

1997).

Hudgins v. Bemish, 64 N.E.3d 923, 931 (Ind. Ct. App. 2016).

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[34] This Court applied the Biel holding in Dillman, 649 N.E.2d 665, where an

employee driving to an employee sports banquet was intoxicated, caused a

crash, and killed another driver. The estate brought a wrongful death action

against the employer, and the employer filed a motion for summary judgment,

arguing that the employee was not acting within the scope of his employment at

the time of the crash. The trial court granted the employer’s motion for

summary judgment. Relying on Biel, this Court held that the “mere fact that

the accident did happen while [the employee] was on his way to work does not

mean that he was therefore acting within the scope of his employment in his

travel or that his employment caused the accident.” Dillman, 649 N.E.2d at

668. The employee was “just going to work,” and no designated evidence

showed that he was “also performing an errand for or otherwise providing some

service or benefit to the company, other than merely showing up for work.” Id.

(emphasis in original). Accordingly, we concluded that the employer was

entitled to summary judgment because the employee was not acting within the

scope of his employment at the time of the crash. Id. Dillman illustrates that,

even when an employee is traveling in connection with employment-related

activities, the "going and coming" rule may still apply if the employee is not

simultaneously performing a discrete service or errand for the employer’s

benefit.

[35] On the other hand, in Warner Trucking, 686 N.E.2d 102, an intoxicated truck

driver drove a company truck toward a gas station and caused a crash. The

trucking company had a strict rule against its employees driving the trucks after

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consuming alcoholic beverages. The trucking company, thus, argued that the

employee was not authorized to drive at the time of the crash and was acting

outside the scope of his employment. In contrast, the designated evidence

showed that it was not “unusual for a truck driver to take a tractor to be gassed

up on the day before he was going to make a run if that run was going to be

early in the morning” and that the trucking company president gave the

employee a cash advance that evening to pay for the fuel. Warner Trucking, 686

N.E.2d at 106. The Court noted that the trucking company’s “vicarious

liability for the acts of its driver therefore does not depend upon the driver’s

permission to drive, but rather upon the relationship of the driver’s activities to

the business” of the trucking company. Id. at 105. The Court thus found a

“genuine issue of material fact regarding whether the employee-driver acted

within the scope of his employment.” Id. at 106.

[36] Here, the designated evidence demonstrated that Kaszuba generally drove his

own vehicle to and from his employment at the Tesla service center. During his

employment, Kaszuba sometimes drove the Tesla service truck, but employees

were not allowed to use the service truck for personal business. The service

truck had a company-issued gasoline credit card in the console, which was used

by employees to fill the vehicle’s tank with gasoline. Kaszuba’s supervisor,

Aichinger, had an informal policy that an employee should not return a Tesla

service vehicle with less than a quarter tank of gasoline. This policy was not

merely a suggestion or preference, but rather an expectation that employees

would comply with before returning service vehicles to the employer.

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[37] The day before the crash, near the end of the workday, Kaszuba was assigned

to drive the service truck and drop off a trailer for repairs. When Kaszuba was

finished, it was after his normal work hours, and rush hour traffic was backing

up. Aichinger specifically authorized Kaszuba to take the service truck home

and return it in the morning. The next morning, before driving to the service

center, Kaszuba noticed that the service truck had approximately one-quarter of

a tank of gasoline, and he knew that he needed to stop for gasoline before

returning the service truck due to Aichinger’s policy. Kaszuba decided to stop

at the Speedway gas station and had the crash with Dugan as Kaszuba was

turning into the gas station. Importantly, the undisputed evidence shows that

Kaszuba was stopping for gas solely to comply with his employer’s policy and

immediately before returning the vehicle to the employer—not as part of a

personal errand or detour.

[38] Unlike Dillman, the undisputed designated evidence here demonstrated that

Kaszuba was not merely on his way to work when the crash happened. Rather,

Kaszuba was authorized to and expected to put gasoline in the service truck

before returning it to the service center. This case is also unlike Warner

Trucking, where some evidence pointed to the employee acting for the benefit of

his employer, but some evidence showed that the employee was breaking an

employer’s strict rule. Here, Kaszuba stopped at the Speedway solely to serve

Tesla’s business purposes. Aichinger’s policy existed so that Tesla employees

could assist customers quickly without the need to stop for gas. Appellant’s

App. Vol. II p. 175. If not for the policy requiring Kaszuba to return the service

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 21 of 43

vehicle with more than one-quarter of a tank of gasoline, Kaszuba would not

have been stopping at the gas station. The undisputed facts show that Kaszuba

was solely performing a service for Tesla at the time of the crash. The informal

rule served the benefit of the employer, Tesla.

[39] Vicarious liability may be determined as a matter of law when the material facts

are undisputed. In fact, in Bushong, 790 N.E.2d at 474, our Supreme Court held

that the trial court properly granted summary judgment in favor of the

employee regarding a scope of employment issue. There, a teacher was playing

kickball with a physical education class when a student kicked the teacher.

Despite warnings not to do so again, the student again attempted to kick the

teacher. The teacher caught the student’s “ankle in mid-air, lifted [the student]

from the ground, and struck him on the back, legs, and buttocks with his hand.”

Id. at 470. Although the parents submitted a notice of tort claim against the

school corporation alleging that the teacher was acting within the scope of his

employment, the student’s parents then filed a complaint against the teacher in

his personal capacity. The trial court, however, granted summary judgment to

the teacher because it concluded the teacher was acting within the scope of his

employment. Given the parents’ notice of tort claim against the school

corporation, our Supreme Court agreed that there was no genuine issue of

material fact as to whether the teacher was acting within the scope of his

employment.

[40] Similarly, here, there is no genuine issue of material fact; the designated

evidence shows that Kaszuba was acting solely within the scope of his

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 22 of 43

employment at the time of the crash. The trial court found “no genuine issue of

material fact and that Kaszuba was in the scope and course of his employment

at the time of the accident. Tesla is vicariously liable for Kaszuba’s actions as a

matter of law.” Appellants’ App. Vol. III p. 242. We agree with the trial

court’s determination.

[41] Our holding, however, should not be read to suggest that an employee is acting

within the scope of employment whenever the employee stops for gas while

driving an employer’s vehicle or whenever an employee performs some

incidental task related to an employer’s vehicle while commuting. Each case

must be evaluated based on its particular facts, with careful attention to whether

the employee is genuinely performing a service for the employer’s benefit or is

simply engaged in the ordinary activity of traveling to work. Here, the

undisputed evidence establishes that Kaszuba’s stop was not incidental to his

commute but was instead a required task integral to returning the employer’s

property in the condition the employer expected and required. Different facts—

such as an employee stopping for gas for personal convenience during a normal

commute in the employee’s own vehicle, or an employee making a personal

detour while using an employer’s vehicle—could likely lead to a different result

under the “going and coming” rule.

[42] Under the specific and narrow circumstances present in this case—where an

employee was complying with an employer’s specifically established policy—

the employee was performing a discrete service for the employer’s benefit and

was, therefore, acting within the scope of employment. Accordingly, we affirm

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 23 of 43

the trial court’s grant of partial summary judgment regarding Tesla’s vicarious

liability. 4

II. Admission of Testimony During the Liability Phase

[43] Next, Defendants argue that the trial court abused its discretion by admitting

testimony from Dugan and Officer Heustis during the liability phase. We

afford a trial court broad discretion in ruling on the admissibility of evidence.

Sims v. Pappas, 73 N.E.3d 700, 705 (Ind. 2017). We will disturb the trial court’s

ruling only where the trial court has abused its discretion. Id. “An abuse of

discretion occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it.” Id. (quoting Turner v. State, 953

N.E.2d 1039, 1041 (Ind. 2011)). In addition, it is well established that “‘errors

in the admission of evidence are to be disregarded as harmless error unless they

affect the substantial rights of a party.’” Sibbing v. Cave, 922 N.E.2d 594, 598

(Ind. 2010) (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)). “To

determine whether the admission of evidence affected a party’s substantial

4

Tesla also argues that the trial court erred by instructing the jury regarding vicarious liability. In general,

when a party challenges the giving of an instruction, we consider the following:

• Does the instruction correctly state the law?

• Is the instruction supported by evidence in the record?

• Is the instruction’s substance covered by other instructions?

Humphrey v. Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020). Tesla, however, makes no argument regarding these

three factors. Instead, Tesla merely argues that the instruction influenced the verdict and permitted the jury

to focus the case on Tesla and its wealth. Accordingly, this issue is waived for failure to make a cogent

argument. See Ind. Appellate Rule 46(A)(8); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App.

2002) (holding that the failure to present a cogent argument waives the issue for appellate review), trans.

denied.

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 24 of 43

rights, we assess the probable impact of the evidence upon the jury.” Id. (citing

McClain, 675 N.E.2d at 331).

A. Dugan’s Testimony

[44] Defendants argue that the trial court abused its discretion by allowing Dugan to

testify during the liability phase due to his alleged incompetency, allowing

Dugan to testify regarding his habit evidence, and refusing to allow Defendants

to cross-examine Dugan regarding a prior motorcycle crash. Dugan’s

testimony—both as to his alleged competency and the content of his testimony

during the liability phase—was hotly contested and the subject of multiple

hearings and motions in limine. Ultimately, however, the trial court allowed

Dugan to testify during the liability phase. Dugan could not remember the

crash with Kaszuba. Dugan briefly testified that he had driven motorcycles for

many years, that he had a license to drive a motorcycle, that he usually drove

his motorcycle to work, and that he had gotten gasoline at that Speedway

before. Dugan briefly testified about his general procedures when exiting the

Speedway to make a right turn. Defendants did not object during Dugan’s

direct testimony.

[45] Defendants moved for a mistrial after the direct examination of Dugan and

before cross examination. Defendants argued that Dugan testified to

“purported habit evidence” and that Dugan was incompetent to testify. Tr.

Vol. VI p. 237. The trial court denied Defendants’ motion for a mistrial but

stated that it would instruct the jury that “they cannot consider [Dugan’s]

injuries and present physical and mental condition in determining the liability

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 25 of 43

issues.” Id. at 242. Defendants also sought to question Dugan regarding a 2004

motorcycle crash he was involved in, but the trial court found the prior crash

was inadmissible. Tr. Vol. VII p. 186; see also Appellants’ App. Vol. VII p. 157

(order granting a motion in limine regarding Dugan’s driving record, including

other motor vehicle or motorcycle crashes in which Dugan was involved).

[46] We first note that a trial court’s ruling on a motion in limine is not a final order,

and a party must also contemporaneously object to the admission of the

evidence at trial to preserve the issue for appeal. Cook v. Beeman, 150 N.E.3d

643, 645 (Ind. Ct. App. 2020). “Regardless [of] whether a motion in limine was

filed, a party has a duty to contemporaneously object to the admission of

evidence a party wishes to challenge.” Id. (citing Walnut Creek Nursery, Inc. v.

Banske, 26 N.E.3d 648, 654 (Ind. Ct. App. 2015)). “‘By making a

contemporaneous objection, the party affords the trial court the opportunity to

make a final ruling on the matter in the context in which the evidence is

introduced.’” Id. at 645-46. “The failure to contemporaneously object results

in waiver of the issue on appeal.” Id. at 646. Although Defendants raised these

issues in motions in limine, Defendants did not object during Dugan’s direct

examination in the liability phase. By failing to contemporaneously object,

Defendants waived any issue regarding Dugan testifying or Dugan’s habit

evidence testimony during his direct examination.

[47] Only Defendants’ argument regarding the admissibility of Dugan’s 2004

motorcycle crash as impeachment remains. Defendants argue that Norris

opened the door to this evidence by asking Dugan about his general driving

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practices. On direct examination, Dugan testified regarding his experience

driving a motorcycle, his license to drive a motorcycle, his knowledge regarding

making a right-hand turn into traffic and using turn signals, and his knowledge

of the Speedway gas station at issue here. “A party may ‘open the door’ to

otherwise inadmissible evidence by presenting similar evidence that leaves the

trier of fact with a false or misleading impression of the facts related.” Walker v.

Cuppett, 808 N.E.2d 85, 98 (Ind. Ct. App. 2004). We conclude that Norris

opened the door to evidence of Dugan’s prior motorcycle crash by presenting

testimony that left the jury with the impression that Dugan was a

knowledgeable and safe motorcycle driver.

[48] We conclude, however, that the exclusion of the evidence regarding the 2004

crash was harmless. The instant crash was partially recorded by surveillance

video, a witness to the crash testified at the trial, and experts testified as to the

cause of the crash. The admission of evidence regarding the 2004 crash would

not have demonstrated that Dugan caused the instant crash. The instant crash

and the 2004 crash were more than a decade apart and completely different

types of crashes. The record reveals that the 2004 crash occurred when Dugan

was traveling at a high rate of speed and hit another vehicle. See Tr. Vol. VII

pp. 15-16. Here, there is no indication that Dugan was traveling over the speed

limit when the crash with Kaszuba occurred. Rather, the evidence established

that the speed limit was forty-five miles per hour, and Dugan was traveling at

approximately thirty to thirty-five miles per hour at the time of the crash.

Although Defendants argued that Dugan accelerated aggressively when leaving

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 27 of 43

the gas station, we conclude that there is no similarity in the essential

conditions surrounding the two crashes. Accordingly, we cannot say that

Defendants’ substantial rights were impacted by the exclusion of evidence

regarding the 2004 crash. Even if the trial court had admitted evidence of the

2004 crash as impeachment, the evidence would not have had a probable

impact upon the jury.

B. Police Officer’s Testimony

[49] Next, Defendants argue that the trial court abused its discretion by permitting

Officer Heustis to testify regarding opinion testimony. During preliminary

questioning, the trial court found that Officer Heustis was “qualified under

[Evidence Rule] 701 to give the jury testimony based on his perception of what

he saw at the scene and [ ] as a supervisor of the unit . . . .” Tr. Vol. VI p. 131.

The trial court also allowed a “continuing objection under Rule 104 to any of

his opinion based testimony.” Id. at 132.

[50] Defendants argue that the trial court “allowed Heustis to opine on the

appropriateness of Kaszuba and Dugan’s actions leading to the collision,

explain whether he would issue traffic citations to a hypothetical motorcyclist

making the same maneuvers as Dugan, and offer unsupported analyses of

vehicle speeds and Kaszuba’s view from his truck.” Defendants’ Appellants’

Br. p. 50. Defendants complain that Officer Heustis testified in response to

hypothetical questions, which are not allowed by Evidence Rule 701, and that

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 28 of 43

Officer Heustis testified Kaszuba’s turn was illegal because he crossed two

double yellow lines. 5

[51] Officer Heustis testified as a skilled witness under Indiana Evidence Rule 701,

which provides: “If a witness is not testifying as an expert, testimony in the

form of an opinion is limited to one that is: (a) rationally based on the witness’s

perception; and (b) helpful to a clear understanding of the witness’s testimony

or to a determination of a fact in issue.”

“The Indiana Rules of Evidence contain two rules for opinion

testimony—lay witness opinions under Rule 701 and expert

witness opinions under Rule 702.” “A ‘skilled witness’ is a

person with a degree of knowledge short of that sufficient to be

declared an expert under Ind. Evid. Rule 702, but somewhat

beyond that possessed by the ordinary jurors.” Evidence Rule

701 “encompasses both ordinary lay witness opinions and skilled

witness opinions. The difference between skilled witnesses and

ordinary lay witnesses is their degree of knowledge concerning

the subject of their testimony.” The testimony of a skilled

witness “is not a matter of ‘scientific principles’ governed by

Indiana Evidence Rule 702(b); rather, it is a matter of the

observations of persons with specialized knowledge.” Skilled

witnesses may be permitted to testify both about their

observations and their “opinions or inferences that are based

solely on facts within their own personal knowledge.”

Bush v. State, 243 N.E.3d 405, 414-15 (Ind. Ct. App. 2024) (internal citations

omitted), trans. denied. In general, “[a] skilled witness offering an opinion under

5

Officer Heustis testified that it was “not proper to drive in between” the double yellow lines. Tr. Vol. XI p.

142. He also, however, testified that a left turn was not prohibited at that location. Id. at 172.

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 29 of 43

Rule 701 may not base the opinion on information received from others or on a

hypothetical question.” Averitt Exp., Inc. v. State ex rel. Ind. Dep’t of Transp., 18

N.E.3d 608, 613 (Ind. Ct. App. 2014).

[52] We agree that Officer Heustis’ testimony went beyond that allowed by a skilled

witness because he was allowed to answer hypothetical questions and to testify

as to opinions based on information received from others. Without any

explanation, Defendants argue that the prejudice from Officer Heustis’

testimony was “manifest” and “impossible to overcome.” Defendants’

Appellants’ Br. p. 51. Defendants offer no specific explanation of how Officer

Heustis’ testimony impacted their substantial rights.

[53] Accident reconstructionist Kevin Johnson testified as an expert in this matter.

Johnson testified that: (1) the collision was avoidable; (2) Kaszuba’s turn into

the parking lot was “risky”; (3) the visibility analysis showed that Dugan was

visible and conspicuous to Kaszuba; (4) Kaszuba could have proceeded to the

stop light and taken a left turn to get to the Speedway; (5) Dugan was traveling

at thirty to thirty-five miles per hour, and Kaszuba was traveling at six to twelve

miles per hour; (6) the collision “occurred because of a failure to observe and

failure to yield type of situation”; and (7) Kaszuba failed to use reasonable care

to maintain a proper lookout and failed to use “the care an ordinarily careful

person would use.” Tr. Vol. VII pp. 109, 225, 232. The complete trial record—

including Johnson’s expert reconstruction, the surveillance video showing the

collision, physical evidence at the scene, eyewitness testimony, and the parties’

own testimony—provided ample properly admitted evidence to support the Court

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jury’s liability findings. Accordingly, even if the trial court abused its discretion

when admitting Officer Heustis’ testimony, any error was harmless given the

sufficiency of the remaining properly admitted evidence that supported the

jury’s verdict.

III. Attorney misconduct during the liability phase

[54] Defendants next argue that this Court should grant a new trial to “remedy

[Attorney Rowley’s] blatant misconduct during the liability phase.”

Defendants’ Appellants’ Br. p. 51. Defendants’ argument focuses on: (1)

Attorney Rowley’s conversation with Kaszuba shortly before Kaszuba’s

testimony; and (2) Attorney Rowley’s statements during his closing argument of

the liability phase.

[55] Defendants requested a mistrial in part due to Attorney Rowley’s conversation

with Kaszuba and Attorney Rowley’s comments during closing argument. “A

mistrial is an ‘extreme remedy that is warranted only when less severe remedies

will not satisfactorily correct the error.’” Piatek v. Beale, 994 N.E.2d 1140, 1145

(Ind. Ct. App. 2013) (quoting Suding v. State, 945 N.E.2d 731, 737 (Ind. Ct.

App. 2011), trans. denied), aff’d on reh’g, 999 N.E.2d 68 (Ind. Ct. App. 2013),

trans. denied. “When determining whether a mistrial is warranted, we consider

whether the defendant was placed in a position of grave peril to which he

should not have been subjected.” Id. “The gravity of the peril is determined by

the probable persuasive effect on the jury’s decision.” Id.

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 31 of 43

A. Conversation with Kaszuba

[56] Immediately before Kaszuba’s testimony during the liability phase, Attorney

Rowley had a conversation with Kaszuba during a restroom break. Attorney

Rowley apologized for Kaszuba being required to testify and blamed Elon

Musk for the decision to proceed with the trial. Before Kaszuba began

testifying, Defendants objected to Attorney Rowley’s comments and asked that

the trial court instruct Attorney Rowley not to speak with Kaszuba. The trial

court granted the request, and Attorney Rowley agreed not to speak with

Kaszuba again. The jury was unaware of this interaction or the dispute

regarding the interaction. Defendants later requested a mistrial based, in part,

upon this interaction, and the trial court denied the motion.

[57] Indiana Professional Conduct Rule 4.2 provides: “In representing a client, a

lawyer shall not communicate about the subject of the representation with a

person the lawyer knows to be represented by another lawyer in the matter,

unless the lawyer has the consent of the other lawyer or is authorized by law or

a court order.” Here, Attorney Rowley communicated with Kaszuba, whom

he knew to be represented by another lawyer, about the instant litigation

immediately before Kaszuba’s testimony.

[58] Defendants contend that the conversation “rattl[ed] and intimidate[ed]”

Kaszuba and that Kaszuba “broke down in tears during his testimony.”

Defendants’ Appellants’ Br. p. 51. Norris, however, is correct that there is no

evidence in the record that this conversation influenced Kaszuba’s testimony or

that he broke down in tears during his testimony due to this communication (or

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even that he broke down in tears). We in no way condone Attorney Rowley’s

conduct here, but any prejudice to Defendants from the conversation is

speculative at best. Defendants have not demonstrated that they were placed in

a position of grave peril or that the conversation had any impact on the jury’s

determination.

B. Closing Arguments

[59] Regarding Attorney Rowley’s conduct during closing arguments in the liability

phase, the entirety of Defendants’ argument follows:

[C]ounsel repeatedly violated the court’s orders in his closing

argument. Compare, e.g., Appellants’ App. Vol. 7, p. 142-44

(prohibiting “expressing any opinion regarding the character of

the parties’ counsel”) with Tr. Vol. 9, p. 24 (“They’re very skilled

lawyers putting that into your head. . . Because people – people

in this world – and it’s sad – they can be manipulated.”), Tr. Vol.

9, p. 30 (similar); Appellants’ App. Vol. 7, p. 141 (prohibiting

“send a message” arguments) with Tr. Vol. 9, p. 100-01 (“[I]t’s a

finding. And it’s to tell Mr. Kaszuba and it is to tell its employer,

his employer, Tesla . . . this is unacceptable in Indiana.”).

He made gratuitous reference to Tesla, see, e.g., Tr. Vol. 9, p. 21,

30, 31, 49—even though it committed no independent

wrongdoing—in his plan to focus the jury on “the richest

defendant in the world,” Appellants’ App. Vol. 9, p. 19-22. And

he encouraged the jury to use its verdict to punish and send a

message to Tesla, in violation of the court’s orders and the law.

Tr. Vol. 9, p.100-01; Appellants’ App. Vol. 7, p. 141 . . . .

Defendants’ Appellants’ Br. pp. 51-52.

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 33 of 43

[60] Defendants did not object to most of the closing argument statements that they

now claim were improper. Accordingly, those arguments are waived. See, e.g.,

Husainy v. Granite Mgmt., LLC, 132 N.E.3d 486, 495 n.4 (Ind. Ct. App. 2019)

(holding that appellees waived any claim of error regarding “several

inflammatory comments in [counsel’s] closing argument regarding unfounded

accusations that had nothing to do with the matter at hand, including the

ownership of Granite and the pay rates of Granite employees, among others”

where appellees failed to object to the comments).

[61] Defendants did object to Attorney Rowley’s “send a message” statements. Tr.

Vol. IX p. 101. As a result, the trial court gave a curative instruction and said,

“Ladies and gentlemen, I’m going to have you disregard the comments counsel

made that might be construed as asking you to send a message to the

Defendants. You know, you’re going to be basing your verdict on the facts that

you find, based on the evidence that was presented and my instructions on the

law.” Id. at 102-03.

[62] “‘Generally, a timely and accurate admonition is an adequate curative measure

for any prejudice that results.’” Perry v. State, 78 N.E.3d 1, 12 (Ind. Ct. App.

2017) (quoting Orta v. State, 940 N.E.2d 370, 374 (Ind. Ct. App. 2011), trans.

denied). “‘When the jury is properly instructed, we will presume they followed

such instructions.’” Id. (quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind.

1987)). “‘We seldom find reversible error when the trial court admonishes the

jury to disregard the statement made during the proceedings.’” Id. (quoting

Davidson v. State, 580 N.E.2d 238, 241 (Ind. 1991)). Given the trial court’s

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 34 of 43

admonition and curative instruction, we find no reversible error as a result of

Attorney Rowley’s statement.

IV. Ex Parte Communications

[63] Defendants argue that the trial court erred by having ex parte communications

with the jury during the damages phase deliberations. In general, when a trial

court is informed that the jury has reached an impasse, Indiana Jury Rule 28

governs and provides:

If the jury advises the court that it has reached an impasse in its

deliberations, the court may, but only in the presence of counsel,

and, in a criminal case the parties, inquire of the jurors to

determine whether and how the court and counsel can assist

them in their deliberative process. After receiving the jurors’

response, if any, the court, after consultation with counsel, may

direct that further proceedings occur as appropriate.

Jury Rule 28 “urges that trial judges facilitate and assist jurors in the

deliberative process, in order to avoid mistrials.” Tincher v. Davidson, 762

N.E.2d 1221, 1224 (Ind. 2002). Our Supreme Court has encouraged “trial

courts to employ other and creative approaches to assist and enable juries to

resolve difficulties.” Id. at 1223.

[64] An ex parte communication between the trial court and the jury, however,

“creates a presumption of error.” Minor v. State, 252 N.E.3d 979, 985 (Ind. Ct.

App. 2025) (quoting Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998)), trans.

denied. “[S]uch presumption is rebuttable and does not constitute per se

grounds for reversal.” Id. “‘In deciding whether the presumption of harm has

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been rebutted, we evaluate the nature of the communication to the jury and the

effect it might have had upon a fair determination.’” Id. at 988 (quoting Henri v.

Curto, 908 N.E.2d 196, 201 (Ind. 2009)).

[65] It is undisputed that the trial court had a conversation with the jury in the jury

room without the parties’ counsel present. Accordingly, there is a presumption

of error. The issue here is whether that presumption was rebutted. Our

Supreme Court addressed a similar issue in Smith v. Convenience Store Distributing

Co., 583 N.E.2d 735, 738 (Ind. 1992). There, during a personal injury jury trial,

deliberations began at 3:30 p.m., and the jury informed the trial court that it

was deadlocked at 9:15 p.m. “After a discussion with the court, counsel for

both sides agreed to allow the judge to go to the jury room to determine (1)

whether the jury wanted to retire for the evening and return the next morning to

continue deliberations, and (2) the numerical split among the jurors, without

reference to in whose favor the jury was split.” Smith, 583 N.E.2d at 737. The

judge entered the jury room to discuss these issues. During the judge’s

discussion with the jury, “one of the jurors asked the judge what would happen

if the jury remained deadlocked. The judge indicated that ‘the parties had

attempted to mediate this case, but that their efforts had proved to be

unsuccessful.’” Id. “The judge also indicated that ‘he did not believe the case

would be settled, and if the jury was hung, the case would probably have to be

retried.’” Id. Approximately ten minutes later, the jury returned a verdict for

Convenience Store.

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[66] On appeal, our Supreme Court warned that, generally, “ex parte

communications between a judge and the jury are prohibited.” Id. When the

judge went to the jury room, the judge was limited to obtaining the “two

specific pieces of information.” Id. Instead, the judge answered the juror’s

question outside the presence of the parties. Accordingly, our Supreme Court

presumed that prejudice occurred.

[67] In determining whether the presumption of prejudice was rebutted, the Court

first noted that jury deliberations are “a sensitive point in the trial” and that

such deliberations “are to be free of extraneous influence so this purpose can be

fulfilled.” Id.

Convenience Store argues, and the Court of Appeals agreed, that

the judge’s comments relating to mediation and retrial were

merely a statement of the obvious. Given that the question was

posed by the juror in the first place, we do not accept that the

effect of a failure to render a verdict was so apparent to the jury.

Additionally, the information provided by the judge was not

necessarily accurate because the parties may well have negotiated

a settlement rather than incur the costs associated with a second

trial. Finally, it is reasonably possible that advice from the judge

that another jury will have to hear the same evidence in a new

trial may have induced the jury members to prove themselves

capable of resolving the controversy rather than forfeiting the

opportunity to another group.

Id. at 738. Further, a verdict was reached by the jury only ten minutes after the

judge’s comments. “This sudden turn of events suggests that the judge’s

comments may have had an influence on the verdict.” Id. Our Supreme Court,

thus, concluded that the presumption of harm had not been rebutted. In doing

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so, the Court noted that “this case aptly illustrates the perils inherent in any ex

parte contact with the jury during deliberations, even those which occur with the

agreement of the parties. We believe that in all circumstances the preferred

method for communicating with the jury is on the record in open court.” Id.

[68] Similarly, here, the presiding juror informed the trial court that the jury was at

an impasse. The trial court then told the parties that it was declaring a mistrial

on the damages phase and that it would allow the parties thirty days to submit

briefs as to whether a mistrial on the liability phase was also required. The trial

court informed the parties that it was going to go to the jury room “and tell the

jury what’s happened and . . . see if the presiding juror might talk” to the

attorneys to assist in retrying the matter. Tr. Vol. XII p. 70. Upon returning,

the trial court stated:

So when I went back in there, the jury indicated that they had

changed their mind. That they are, and Mr. Juror Number One,

is willing to work with them. They would like to have the

opportunity to continue to deliberate. I said I would have to

bring them in here and have them on the record, each of them,

affirm that they do want to continue to deliberate, that they are

not being coerced, they’re not being pressured, and that they do

want to continue to work on this case. So that’s what I told

them.

Id. at 70-71. Defendants objected that the trial court had already granted the

mistrial, and the trial court stated, “Well, I can un-grant it. It’s un-granted.” Id.

at 71. The trial court stated, “[L]et’s find out what the jury says. They were

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 38 of 43

very upset to hear that they couldn’t continue. So, go ahead. I think they have

a lot of investment in this case as well.” Id.

[69] The trial court then brought the jury into the courtroom and asked the jury:

[Y]ou indicated to me back in the jury room when I went back

there to see you just a couple of minutes ago that you do want to

continue to deliberate, that you do believe that you have resolved

the differences that you’ve had among yourselves, that you think

you can make some progress. Is that correct[?]

Id. Each juror responded that they wanted to continue deliberating, that they

were not being coerced, and that they were all “freely and in good will and

good faith wanting” to continue deliberating. Id. at 72. The trial court then

sent the jury back to the jury room to continue deliberating over Defendants’

objection.

[70] Defendants argue that the verdict was reached thirty minutes later, but the

record does not indicate the exact timing between the ex parte conversation and

the verdict. The record indicates that the jury began deliberations at 11:37 a.m.;

at approximately 6:00 p.m.; Juror No. 1 began expressing that he was not going

to change his mind and impasse discussions began; and the jury reached its

verdict at 7:47 p.m. Regardless, it is clear that the verdict was reached soon

after the trial court’s conversation with the jurors.

[71] As in Smith, although the parties agreed that the trial court could enter the jury

room to inform the jurors of the mistrial and ask the presiding juror if he or she

wanted to discuss the case with the attorneys, the judge went beyond this

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 39 of 43

agreement. Even though we do not have an exact record of the judge’s

conversation with the jurors, it is apparent from the judge’s later statements

that, upon learning of the mistrial, the jurors stated that they had resolved their

differences and wanted to continue deliberating. The trial court apparently told

the jurors: “I said I would have to bring them in here and have them on the

record, each of them, affirm that they do want to continue to deliberate, that

they are not being coerced, they’re not being pressured, and that they do want

to continue to work on this case.” Tr. Vol. XII p. 70. Once the judge learned

the jurors were no longer at an impasse, the judge needed to leave the jury room

and bring the jurors before the parties.

[72] The trial court then brought the jurors into the courtroom and polled the jurors.

We cannot, however, conclude that the polling of the jurors rebutted the

presumption of error. This is so because, when the jurors were polled, each of

them gave the “correct” answer to the questions the judge had previewed for

them. Although the judge may not have wanted to influence the jurors to

continue to deliberate, we cannot rule out that the ex parte discussion with the

judge encouraged at least the recalcitrant juror to give up his opinion.

[73] Also, although the jurors had been at an impasse only minutes before, the jurors

quickly reached a verdict after the conversation with the judge and the polling.

The quick verdict suggests that the judge’s ex parte conversation with the jurors

may have had an influence on the verdict. As in Smith, “this case aptly

illustrates the perils inherent in any ex parte contact with the jury during

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 40 of 43

deliberations.” Smith, 583 N.E.2d at 738. Accordingly, we are compelled to

find that the presumption of error was not rebutted.

[74] Because we conclude that Norris did not rebut the presumption of error created

by the trial court’s ex parte conversation with the jurors, we need not address

Defendants’ argument that the trial court’s communication with the jurors

amounted to an Allen charge 6 and that the trial court could not “un-grant” the

mistrial. We are left, however, with the question of whether to reverse only the

damages phase of the trial or both the liability and damages phases.

[75] At oral argument, Defendants argued that the parties specifically agreed that the

liability and damages phases would be heard by the same jurors. Indiana

Appellate Rule 66, however, provides that this Court may “with respect to

some or all of the parties or issues, in whole or in part: . . . (3) order a new trial

or hearing; . . . (9) make any relief granted subject to conditions; and (10) grant

any other appropriate relief.” The Rule specifically provides: “If a new trial is

necessary, it shall be limited to those parties and issues affected by the error

unless this would be impracticable or unfair.” Ind. App. R. 66(D); see also Ind.

Trial Rule 59 (“[I]f a new trial is required it shall be limited only to those parties

and issues affected by the error unless such relief is shown to be impracticable

or unfair.”). It would not be impracticable or unfair for different jurors to hear

the damages phase of this trial. See, e.g., Ramada Hotel Operating Co. v. Shaffer,

6

See Allen v. United States, 164 U.S. 492 (1896).

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 41 of 43

576 N.E.2d 1264, 1271-72 (Ind. Ct. App. 1991) (reversing for a new trial on the

issue of punitive damages only), decision clarified on reh’g, 580 N.E.2d 306 (Ind.

Ct. App. 1991). In fact, it would be a waste of judicial resources to require a

new trial on both phases. 7 “Our courts promise litigants a fair trial, not

necessarily a perfect one.” Abbas v. Neter-Nu, 261 N.E.3d 233, 252 (Ind. 2025).

Defendants here received a fair trial during the liability phase. Accordingly, we

reverse the damages phase of this trial only and remand for a new trial on

damages.

Conclusion

[76] The trial court properly granted summary judgment to Norris and Kaszuba

regarding whether Kaszuba was acting within the scope of his employment at

the time of the crash, and Defendants have failed to demonstrate reversible

error regarding the liability phase of the trial. With respect to the damages

phase, however, Norris has failed to rebut the presumption of error resulting

from the trial court’s ex parte conversation with the jurors. Accordingly, we

affirm in part, reverse in part, and remand for a new trial on damages only.

[77] Affirmed in part, reversed in part, and remanded.

May, J., and Vaidik, J., concur.

7

Because we are remanding for a new damages phase of the trial, we need not address Defendants’ argument

that the damages award was excessive.

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 42 of 43

ATTORNEYS FOR APPELLANT – TESLA, INC.

Daniel E. Pulliam

Brian J. Paul

Andrea Roberts Pierson

Faegre Drinker Biddle & Reath LLP

Indianapolis, Indiana

Ellyde R. Thompson

Chelsea Sincox

Quinn Emanuel Urquhart & Sullivan, LLP

New York, New York

Matthew Alex Bergjans

Quinn Emanuel Urquhart & Sullivan, LLP

Los Angeles, California

ATTORNEYS FOR APPELLANT – KYLE KASZUBA

Lisa A. Baron

Clark Johnson & Knight, Ltd.

Carmel, Indiana

Paul B. Johnson

Elizabeth M. Wheaton

Clark Johnson & Knight, Ltd.

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Steven David

Alexander P. Pinegar

Rachel Dever

Kevin Smith

Church Church Hittle + Antrim

Noblesville, Indiana

Lee C. Christie

Katherine M. Marshall

Christie Farrell Lee & Bell P.C.

Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 25A-CT-198 | December 30, 2025 Page 43 of 43