Dickson, J.
Concluding that one of the jury instructions given by the trial court could have misled the jury about a key issue regarding liability in this child wrongful death case, we reverse and remand for a new trial on the affected issue.
The plaintiff, Maria Rosales, filed this wrongful death action against LaPorte Community School Corporation after her son choked to death on food while eating lunch at Hailmann Elementary School, which is part of the School Corporation. The jury returned a $5 million verdict for the plaintiff, and judgment was entered in the sum of $500,000—the maximum amount then permitted under the Indiana Tort Claims Act, Indiana Code Section 34-13-3-4. The School Corporation appealed, claiming that the trial court erred in the giving of certain jury instructions, in permitting testimony of an expert witness for the plaintiff, and in its rulings on the parties competing motion for judgment on the evidence. The Court of Appeals rejected each of the School Corporation’s appellate contentions except its claim of error in the giving of Final Instruction 22 (“Instruction 22”), on which issue the Court of Appeals reversed and remanded for a new trial. LaPorte Cmty. Sch. Corp. v. Rosales, 936 N.E.2d 281 (Ind. Ct. App. 2010). We granted transfer and agree that the giving of Instruction 22 requires reversal and remand for new trial on the issue of liability only. On all other issues, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2).
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We conclude that the language of Final Instruction No. 22 could have reasonably been interpreted and applied by the jury in a way that substantially misstated the plaintiff’s burden of proof with respect to establishing negligence on the part of the School Corporation.
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In this case, however, we are unable to conclude that the jury’s verdict would have been the same if Instruction 22 had unambiguously and correctly stated the law. Instruction 22’s lack of clarity as to the appropriate standard of care invited the jury to conclude that the School Corporation’s omissions alleged by the plaintiff in subparts A–E must be considered negligence as a matter of law. Deciding the case in accord with such an instruction, the jury could have found the School Corporation liable for these omissions without determining whether such conduct constituted a breach of the standard of ordinary and reasonable care. An instruction that leaves the jury in doubt as to the law on a material issue of the case is reversible error. [Footnote omitted.] Metro. Life Ins. Co. v. Alterovitz, 214 Ind. 186, 205, 14 N.E.2d 570, 578 (1938) (holding that the trial court committed reversible error by giving multiple instructions that articulated “two conflicting theories” of the law that “directly opposed” one another where two of the instructions incorrectly stated the law).
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Shepard, C.J., and Rucker and David, JJ., concur.
Sullivan, J., dissents with separate opinion.
Sullivan, J. dissenting.
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Because the Court fails to follow our long-standing rule that instructions are to be read as a whole – a rule that the trial court here conveyed to the jury not once but twice – and because there are a number of reasons to conclude that any ambiguity in Instruction 22 did not mislead the jury, I respectfully dissent.