MEMORANDUM DECISION
Jan 14 2016, 5:54 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
David R. Neal Gregory F. Zoeller
Bunker Hill, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David R. Neal, January 14, 2016
Appellant-Plaintiff, Court of Appeals Case No.
52A02-1410-SC-735
v. Appeal from the Miami Superior
Court 1
Mark Sevier and the Indiana The Honorable J. David Grund,
Department of Correction, Judge
Appellees-Defendants Trial Court Cause No.
52D01-1312-SC-1215
Bailey, Judge.
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Case Summary
[1] Pro se Appellant-Plaintiff David R. Neal (“Neal”) appeals a judgment entered
in favor of Appellee-Defendant Indiana Department of Correction (“the DOC”)
upon Neal’s negligence claim.1 He presents a single consolidated and restated
issue: whether the small claims judgment is clearly erroneous. We affirm.
Facts and Procedural History
[2] On June 13, 2013, Neal was a DOC inmate assigned to the Miami Correctional
Facility. He slipped and fell in a puddle of water on the cafeteria floor,
sustaining injuries that required pain medication and physical therapy.
[3] On December 9, 2013, Neal filed a small claims complaint, asserting that the
DOC and the Miami Correctional Facility Superintendent, Mark Sevier, had
negligently caused him injury by failing to contain water from a leaky roof.
Neal requested a hearing but, lacking authority for a transport order, the trial
court ordered the submission of the matter by affidavit. 2
1
He does not challenge the judgment in favor of defendant Mark Sevier, having conceded that Mark Sevier is
not subject to personal liability, pursuant to Indiana Code Section 34-13-3-5.
2
Generally, a court lacks jurisdiction over a prisoner who has been convicted, sentenced and delivered to
prison pursuant to a commitment, and does not have a right to order the prisoner’s return to court even
temporarily except in connection with matters relating to the case in which he was sentenced. Rogers v.
Youngblood, 226 Ind. 165, 169, 78 N.E.2d 663, 665 (1948). However, a prisoner has a constitutional right to
bring a civil action, pursuant to Article 1, § 12 of the Indiana Constitution: “[a]ll courts shall be open; and
every person, for injury done to him in his person, property or reputation, shall have remedy by due course of
law.”
Implicit in the right to bring a civil claim is the right to present the claim in court and a “trial court should not
be able to deprive a prisoner of his constitutional right to maintain a civil action by denying motions that the
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[4] After reviewing the affidavits and documents submitted by the parties, the small
claims court entered judgment for the defendants. The order stated, without
elaboration, that Neal had failed to meet his burden of proof. Additionally, the
court made a finding of fact that Neal had been contributorily negligent. This
appeal ensued.
Discussion and Decision
[5] Indiana Small Claims Rule 8(A) provides:
The trial shall be informal, with the sole objective of dispensing
speedy justice between the parties according to the rules of
substantive law, and shall not be bound by the statutory
provisions or rules of practice, procedure, pleadings or evidence
except provisions relating to privileged communications and
offers of compromise.
[6] Accordingly, appellate review of a small claims decision is particularly
deferential. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). We review
factual determinations for clear error and review questions of law de novo. Id.
In conducting a review for clear error, we do not reweigh the evidence nor
determine the credibility of witnesses. Austin v. State, 997 N.E.2d 1027, 1040
court can properly deny while concurrently ignoring the prisoner’s requests for other methods that would
allow the prisoner to prosecute from prison.” Zimmerman v. Hanks, 766 N.E.2d 752, 757-58 (Ind. Ct. App.
2002). There remain “avenues available” to permit an inmate to “prosecute his action without having to
represent himself at a trial in the courthouse.” Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct. App.
1997). These include such avenues as submission by documentary evidence, trial by telephonic conference,
representation by counsel, and postponement until release from incarceration. Id.
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(Ind. 2013). Clear error is that which leaves us with a definite and firm
conviction that a mistake has been made. Id.
[7] “A plaintiff seeking damages for negligence must establish (1) a duty owed to
the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury
proximately caused by the breach of duty.” Pfenning v. Lineman, 947 N.E.2d
392, 398 (Ind. 2011). The duty of a custodian of inmates is “to take reasonable
steps under the circumstances for the life, health, and safety of the detainee.”
Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind. 1998).
[8] In most tort cases, a comparative negligence scheme is applicable and thus the
negligence of a plaintiff, which contributed to the injury at issue, does not itself
afford a complete defense to liability for a defendant. I.C. § 34-51-2-1 et seq.;
Kader v. State, 1 N.E.3d 717, 728 (Ind. Ct. App. 2013). However, where a
plaintiff pursues a claim of negligence against an alleged tortfeasor under the
Indiana Tort Claims Act (“the Act”), the comparative negligence scheme of the
Indiana Comparative Fault Act does not apply. Kader, 1 N.E.3d at 728.
Rather, contributory negligence on the part of a plaintiff provides a complete
defense to liability for the State and government actors who fall within the
scope of the Act. Id. The Act applies to tort suits against governmental entities,
political subdivisions, and individual members or employees of government
entities under certain circumstances. Id.
[9] Whether a plaintiff has engaged in negligent conduct that contributed to his
injury is ordinarily a question for the fact-finder. Id. at 729. However,
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contributory negligence may be decided as a question of law where the facts are
undisputed. Funston v. Sch. Town of Munster, 849 N.E.2d 595, 599 (Ind. 2006).
A plaintiff is contributorily negligent when his conduct falls below the standard
to which he should conform for his own protection and safety. Jones v. Gleim,
468 N.E.2d 205, 207 (Ind. 1984). If there is any negligence on the plaintiff’s
part, however slight, and that negligence is a proximate cause of his injuries,
then the plaintiff is barred from any recovery against the government actor.
Funston, 849 N.E.2d at 598.
[10] Here, the small claims court concluded that Neal had been contributorily
negligent, stating:
The Court further finds that the Plaintiff was contributorily
negligent as he noticed the puddle of water on the floor that he
alleges caused his fall, and then knowingly entered into the area
of the puddle which ultimately lead [sic] to his fall.
(App. at 7.)
[11] This conclusion is supported by Neal’s own affidavit, wherein he averred:
On June 13th, 2013 there was a puddle in DFAC No. 4 near the
exit, caused by a leak in the ceiling.
That while exiting the DFAC I noticed a portion of this puddle
and moved to step around it.
That unfortunately the way the light was reflecting off the surface
of the puddle made its full extent unascertainable from my
perspective.
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Thus my attempt to avoid the puddle was negated; i.e. I stepped
over the frying pan and unknowingly into the fire.
That broad stepping into this puddle – in an attempt to avoid it –
caused me to slip and fall violently.
(App. at 10-11.)
[12] The facts regarding Neal’s knowledge and conduct are not in dispute. Neal
admittedly knew that there was a puddle of water on the cafeteria floor.
Despite his limited mobility and use of a cane, he attempted to “broad-step” the
puddle. (App. at 11.) The small claims court properly concluded that Neal was
contributorily negligent.
Conclusion
[13] We find no clear error in the decision of the small claims court.
[14] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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