# Hebel v. Conrail, Inc.

> Indiana Supreme Court · March 14, 1985 · 475 N.E.2d 652

URL: https://www.frixlaw.com/law-library/cases/9739601

## Case

- **Full name:** Robert HEBEL, Personal Representative for Richard C. Hebel, Deceased, Appellant (Plaintiff Below), v. CONRAIL, INC., Appellee (Defendant Below)
- **Court:** Indiana Supreme Court
- **Decided:** March 14, 1985
- **Citations:** 475 N.E.2d 652; 1985 Ind. LEXIS 896
- **Precedential status:** Published
- **Opinion:** Dissent by DeBRULER
- **Judges:** Prentice, Givan, Hunter, Pivar-Nik, Debruler
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9739601

## Opinion text

DeBRULER, Justice,
dissenting.
The requirement of an offer of proof is often based upon the need to specifically identify the material excluded by the court's ruling, and to provide a basis for appellate evaluations of the harm from erroneous exclusion to substantial rights. Marposon v. State (1972), 259 Ind. 426 , 287 N.E.2d 857 . Here, as is not uncommon, appellee does not contend in its answer brief that there was no compliance with the requirement of an offer of proof, and thus the appellate court is unwittingly drawn into an in-depth research of the merits of the issue only to find at some point in the investigation, often after considerable expenditure of time and effort, that no offer of proof was made. In such situations the parties on appeal are satisfied with the identification of the excluded evidence to be found in the record. When such a situation oceurs, and the appellate tribunal does determine, through an accurate and rational process akin to judicial notice, the exact nature of that which would have been in the omitted offer of proof, as the Court of Appeals did in this case, such appellate tribunal should be accorded the discretion to then go ahead and make a proper resolution of the issue on its merits on the basis of that determination. I see no good reason not to permit that to be done, particularly where the appellee felt no impingement from the lack of an offer. And I certainly see no good reason for this court on transfer to nullify a court of appeals opinion which went so far as to actually and accurately identify the absent proof. On the merits of the ruling, I agree with Judge Ratliff, that the OSHA regulations regarding exposure levels for acrylonitrile, were admissible as evidence of negligence and that it was error to exclude evidence of them and their violation by the defendants.
I likewise cannot agree with the majority opinion wherein it places a burden on the plaintiff below to show exact levels of concentration of dangerous molecules in the air at the precise time of exposure. That is an impossible burden and entirely unrealistic. That requirement would limit recovery to situations where constant monitoring of the workplace was taking place at the time of exposure. That seldom occurs, even in a spill case. The best that is ordinarily available is circumstantial evidence of levels shown by periodic sampling, and the senses of smell and sight and taste of persons in the workplace.
Furthermore, I cannot agree that Issue I cannot be considered because of inadequate briefing. The plaintiff's rejected instructions are set out verbatim; their purpose is described; their legal sources are given; and the harm from the court's rulings is demonstrated in light of the record. The briefing is well within tolerable limits.
While there is more than negligible support for the proposition that the issues were fairly tried and resolved, I am persuaded to vote for a new trial to permit the OSHA regulations to have their sway with the trier of fact. There is some indication in this record that industry standards were no less stringent than the standards in the OSHA regulations.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9739601. Public record. Not legal advice.