Baker, J.
….
II. Responsible Cause Jury Instruction
Fratter argues that the trial court erred in giving the “responsible cause” jury instruction because it misstates Indiana law. Appellant’s Br. p. 7. Fratter maintains that this instruction does not adequately define the element of proximate cause and erroneously creates a higher burden of proof for Fratter.
When reviewing a trial court’s decision to give or refuse a tendered instruction, we consider whether the instruction: (1) correctly states the law; (2) is supported by the evidence in the record; and (3) is covered in substance by other instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002). The trial court has discretion in instructing the jury, and we will reverse on the last two issues discussed above only when the instructions amount to an abuse of discretion. Id. However, when an instruction is challenged as an incorrect statement of the law, we review the ruling de novo. Id. at 893-94.
In this case, the trial court indicated that it intended to use the new Indiana Model Civil Jury Instructions, rather than the Indiana Pattern Jury Instructions. As set forth above, Fratter challenges the following final instruction:
A person’s conduct is legally responsible for causing death if:
(1) the death would not have occurred without the conduct, and
(2) the death was a natural probable, and foreseeable result of the conduct.
This is called a “responsible cause.”
Appellant’s App. p. 37.
Even though Fratter argues that the responsible cause instruction misstates the law, it closely tracks our Supreme Court’s definition of proximate cause:
Proximate cause has two components: causation-in-fact and scope of liability. To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. The scope of liability doctrine asks whether the injury was a natural and probable consequence of the defendant’s conduct, which in light of the circumstances, should have been foreseen or anticipated.
Kovach v. Caligor Midwest, 913 N.E.2d 193, 197-98 (Ind. 2009).
Also, while Fratter contends that the instruction is insufficient because it does not contain the word “omission,” the term “conduct” as used in the instruction certainly includes both acts and omissions. It is Rice’s conduct in treating Joseph and whether that conduct breached the standard of care that are at issue. In short, both the causation-in-fact and scope of liability elements are covered by the responsible cause jury instruction.
Also, even assuming solely for the sake of argument that this instruction was erroneous, any alleged error was cured in another instruction that the trial court gave. More specifically, instruction eleven states that:
Negligence is the failure to use reasonable care.
A person may be negligent by acting or by failing to act. A person is negligent if he or she does something a reasonably careful person would not do in the same situation, or fails to do something a reasonably careful person would do in the same situation.
Reasonable care means being careful and using good judgment and common sense.
Appellant’s App. p. 31 (emphasis added).
In light of the above, any possible error in the responsible cause instruction was cured because the jury was sufficiently informed that a person may be negligent by failing to act. For all these reasons, we reject Fratter’s claim that the trial court erred in giving that instruction. [Footnote omitted.]
….
The judgment of the trial court is affirmed.
BRADFORD, J., and BROWN, J., concur.