Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor,et al. v. Erich E. Gephart, City of Indianapolis

FILED
May 06 2016, 9:06 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jason D. May Pamela G. Schneeman
Law Office of Jason D. May, LLC Assistant Corporation Counsel
Indianapolis, Indiana Office of Corporation Counsel
Samuel D. Krahulik Indianapolis, Indiana
The Hastings Law Firm Kevin C. Schiferl
Indianapolis, Indiana Anthony W. Overholt
Alexander P. Will
Darren A. Craig
Frost Brown Todd, LLC
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Barbara Hill, individually and as May 6, 2016
guardian of Charles Hill, Court of Appeals Case No.
incapacitated, and as next friend 49A02-1509-CT-1288
of Alexandra Hill, a minor, and Appeal from the Marion Superior
Macey Hill, a minor, by her next Court
friend and mother, Tenise Hill- The Honorable James A. Joven,
Cornelius, Judge
Appellant-Plaintiffs, Trial Court Cause No.
49D13-1204-CT-16235
v.

Erich E. Gephart, City of
Indianapolis, and Marion
County Sheriff’s Department,
Appellee-Defendants.

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 1 of 12
 Mathias, Judge.

[1] Barbara Hill, individually and as guardian of Charles Hill (“Charles”),

incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill

(“Macey”), a minor, by her next friend and mother, Tenise Hill-Cornelius

(collectively “the Hills”) filed a complaint in Marion Superior Court against

Erich Gephart (“Deputy Gephart”), the City of Indianapolis, and the Marion

County Sheriff’s Department (collectively “Defendants”) alleging that

Defendants were negligent when a Marion County Sheriff jail transport vehicle

driven by Deputy Gephart struck and severely injured Charles. Defendants

moved for summary judgment, arguing that Deputy Gephart was not negligent

and that Charles was contributorily negligent which was the proximate cause of

his own injuries. The trial court granted Defendants’ motion for summary

judgment. The Hills now appeal and raise two issues, which we consolidate and

restate as whether the trial court erred in granting Defendants’ motion for

summary judgment.

[2] We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] On the evening of November 25, 2011, Charles and his daughter, Macey

walked to Fox Hill Elementary School (“the school”) from their residence on

Fox Hill Drive in Indianapolis, Indiana, so Macey could play on the school’s

playground equipment.

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[4] Charles and Macey left the residence when it was still light outside. The school

is about one block east of the Hills’ residence and takes about five minutes to

walk there. To get to the playground, Charles and Macey walked along the east

side of Fox Hill Drive1, on the north side (left side) of the street facing

oncoming westbound traffic. The school was located on the same side of the

street as their residence, so Charles and Macey did not have to cross the street.

[5] While Macey played, Charles watched her and talked on his cell phone. As the

sun went down, Charles and Macey decided to return home. They took the

same route on the way back, this time walking again on the north side (right

side) of Fox Hill Drive with their backs toward traffic. Charles and Macey

decided to walk on the right side so they did not have to cross the street. Macey

walked in front of Charles as he still talked on his phone.

[6] At approximately 6:00 p.m., Deputy Gephart, jail transport driver for the

Marion County Sheriff’s Department, began his shift. This was about the same

time that Charles and Macey began walking home. Deputy Gephart’s job

required him to drive around the jail transport vehicle to transport arrestees.

Like many police cars, the transport vehicle is equipped with a cockpit laptop

computer. After leaving his home, Deputy Gephart drove southbound on

Hoover Road, stopped at the intersection’s stop sign, and turned right onto Fox

1
Fox Hill Drive is a two-lane road that runs from east to west. No sidewalks are along either side of the
street.

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 3 of 12
 Hill Drive, traveling westbound at approximately 40 m.p.h. The posted speed

limit on Fox Hill Drive is 30 m.p.h.

[7] As Deputy Gephart was driving around the 900 block of Fox Hill Drive, he

heard a loud collision with the transport vehicle but did not see anything in the

road. At the time, it was dark outside, and Deputy Gephart reported a glare

reflecting off of his laptop. He immediately stopped the transport vehicle about

fifty feet after the collision occurred and exited the vehicle to determine what

had happened. Deputy Gephart observed damage to the passenger side

windshield, mirror, and headlight.

[8] At that same time, Deputy Gephart saw Macey run across the grass and noticed

that she was crying. He heard her say, “Somebody hit my. . .” Appellant’s App.

p. 199. However, Macey did not see, but only heard Deputy Gephart hit

Charles because she was walking in front of him while Charles remained on the

phone. When she turned around, she saw Charles lying in the grass north of the

road. She also saw Deputy Gephart driving the transport vehicle but only “on

the road surface.” Appellant’s App. p. 190.

[9] Still unsure of what had happened, Deputy Gephart grabbed his flashlight and

looked back to the east of where he was standing. He saw a man, later

identified as Charles, lying face down on the ground in the grass and noticed

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 that he was unresponsive, but still breathing.2 Deputy Gephart then observed a

large gash on the top of Charles’s head. He immediately contacted his control

operator and explained that he had hit someone with the transport vehicle.

Deputy Gephart also requested an ambulance.

[10] After running home, Macey notified her grandmother that Charles had been

hit. The Hill family rushed to the accident scene where they saw Charles lying

face down on the ground unconscious and bleeding. Charles was then

transported to the hospital for treatment. He suffered numerous severe injuries

that require future treatment and rehabilitation.

[11] That same evening, Indianapolis Metropolitan Police Department (“IMPD”)

officers began investigating the collision led by Sergeant Doug Heustis

(“Sergeant Heustis”). Sergeant Heustis took photos of the van, Charles’s

clothing, and the road. He also took measurements for purposes of accident

reconstruction. After the investigation, Sergeant Heustis determined that

Charles was “walking westbound at the edge of the westbound lane at the time

of the crash” but “could not determine the exact location of []Hill at the time of

impact.” Appellant’s App. p. 238. Sergeant Heustis concluded that “[t]he

primary causes of this crash [were] a combination of the low light environment

and the dark clothes being worn by the pedestrian.” Id.

2
Charles was wearing dark colored clothing at the time of the accident. One of his white shoes was found on
the ground close to him when the Hills and paramedics arrived.

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 5 of 12
[12] On December 16, 2011, the Hills filed a Tort Claims Notice with Defendants.

The Hills then filed a complaint in Marion Superior Court against Defendants

alleging negligence and negligent infliction of emotional distress on April 23,

2012. After conducting discovery, Defendants filed a motion for summary

judgment on March 30, 2015. The Hills responded with their opposition in

response on May 28, 2015. Defendants then filed a reply brief in support for

their motion for summary judgment and a motion to strike inadmissible

evidence relied upon in opposition to motion for summary judgment on June

11, 2015. On June 25, 2015, the Hills filed a request for judicial notice.

[13] A hearing on Defendants’ motion for summary judgment was held on July 1,

2015. On August 4, 2015, the trial court granted the Hills’s request for judicial

notice. Three days later, the court dismissed the Hills’s complaint against

Deputy Gephart and granted summary judgment in favor of the remaining

Defendants. The Hills now appeal.

Standard of Review

[14] Our standard of review for summary judgment appeals is well settled:

When reviewing a grant of summary judgment, our standard of
review is the same as that of the trial court. Considering only
those facts that the parties designated to the trial court, we must
determine whether there is a genuine issue as to any material fact
and whether the moving party is entitled to judgment as a matter
of law. In answering these questions, the reviewing court
construes all factual inferences in the non-moving party’s favor
and resolves all doubts as to the existence of a material issue
against the moving party. The moving party bears the burden of

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 6 of 12
 making a prima facie showing that there are no genuine issues of
material fact and that the movant is entitled to judgment as a
matter of law; and once the movant satisfies the burden, the
burden then shifts to the non-moving party to designate and
produce evidence of facts showing the existence of a genuine
issue of material fact.

The party appealing a summary judgment decision has the
burden of persuading this court that the grant or denial of
summary judgment was erroneous. Where the facts are
undisputed and the issue presented is a pure question of law, we
review the matter de novo.

Importantly for this case, summary judgment is rarely
appropriate in negligence actions, since negligence cases are
particularly fact sensitive and are governed by a standard of the
objective reasonable person. This standard is best applied by a
jury after hearing all of the evidence.

M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.

denied (citations and internal quotations omitted).

Discussion

[15] The Hills argue that the trial court erred in granting Defendants’ motion for

summary judgment because Defendants’ affirmative defense that Charles was

contributorily negligent should be decided by a trier of fact, not as a matter of

law. The Hills concede that Charles violated Indiana Code section 9-21-17-14

when he walked on the right hand side of Fox Hill Drive. Indiana Code 9-21-

17-14 provides:

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 If neither a sidewalk nor a shoulder is available, a pedestrian
walking along and upon a highway shall walk as near as
practicable to an outside edge to the roadway. If the roadway is
two-way, the pedestrian shall walk only on the left side of the
roadway.

[16] When a tort claim is brought against a governmental entity, such as the City of

Indianapolis, the common law defense of contributory negligence remains

applicable under Indiana Code section 34-51-2-2. Whitmore v. South Bend Public

Transp. Corp., 7 N.E.3d 994, 997 (Ind. Ct. App. 2014). Thus, if a plaintiff is

negligent to even a small degree and that negligence proximately contributes to

his claimed damages, contributory negligence will operate as a complete bar to

his action. Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006).

[17] A plaintiff is contributorily negligent when his conduct falls below the standard

to which he should conform for his own protection and safety. Whitmore, 7

N.E.3d at 997 (citing Funston, 849 N.E.2d at 598). Negligence depends upon the

lack of reasonable care that an ordinary person would exercise in like or similar

circumstances. Id. Said differently, contributory negligence is the failure of a

person to exercise for his own safety that degree of care and caution which an

ordinary, reasonable, and prudent person in a similar situation would exercise.

Id. Generally, contributory negligence is a question of fact for the jury to decide.

Id. It will only be a question of law appropriate for summary judgment if the facts

are undisputed and only a single inference can be drawn therefrom. Id. at 599.

[18] In its order, the trial court cited to Larkins v. Kohlmeyer for the proposition that it

must be impossible to comply with a statute for the violation to be excused. 98
Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 8 of 12
 N.E.2d 896, 900 (Ind. 1951). On the basis that it was not impossible for Charles

to comply with the statute by instead walking along the left hand side of the

road, the trial court granted summary judgment in favor of Defendants.

[19] However, our supreme court in Davison v. Williams established that proof of the

violation of a safety regulation creates a rebuttable presumption of negligence.

242 N.E.2d 101, 105 (Ind. 1968). Our supreme court concluded, “As for the

question of what will constitute proof sufficient to rebut the presumption of

negligence raised by violation of safety regulation, we believe the best test to

follow is:

Where a person has disobeyed a statute he may excuse or justify
the violation in a civil action for negligence by sustaining the
burden of showing that he did what might be reasonably
expected by a person of ordinary prudence, acting under similar
circumstances, who desired to comply with the law.

Id.

[20] While Davison involved the duty of a driver who violated a motor vehicle

statute, we see no reason not to extend this holding to motor vehicle statues that

impose duties on pedestrians as well. The rights and duties of pedestrians and

motorists to use highways are reciprocal and should be exercised by each so as

not to injure the other, and motorist owes pedestrians walking along a highway

duty to exercise reasonable care to avoid injury. American Carloading Corp. v.

Gary Trust & Sav. Bank, 25 N.E.2d 777, 781 (Ind. 1940).

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 9 of 12
[21] The Hills argue that Charles’s violation was justifiably reasonable because by

remaining on the right side of Fox Hill Drive, Charles and Macey did not have to

cross the busy street. This was arguably a safer option for the father-daughter duo

because no cross-walk existed. At his deposition, Charles also testified that the

left side of the road did not have a sidewalk and in some places no shoulder to

walk along because it was blocked by vegetation. Further, the Hills submitted an

affidavit from an expert investigator to establish the speed limit and that

vegetation was present along Fox Hill Drive. Defendants filed a motion to strike

the affidavit as inadmissible, but the court never issued an order on the motion.

[22] Because the purpose of Indiana Code section 9-21-17-14 is to promote safety, it is

counterintuitive to bar the Hills’s claim without allowing Charles to explain why

he was walking on the right side instead of the left side of the road. It is up to the

jury to determine whether that act was reasonable or if Charles contributed to his

injuries. For all of these reasons, a genuine issue of material fact exists as to

whether Charles was contributorily negligent, and the trial court erred by

disposing the Hills’ claim on summary judgment. We therefore reverse and

remand with instructions for the trial court to hold a jury trial on the matter.

[23] Reversed and remanded for proceedings consistent with this opinion.

Kirsch, J., concurs.

Brown, J., dissents with opinion.

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 10 of 12
 IN THE
COURT OF APPEALS OF INDIANA

Barbara Hill, individually and as Court of Appeals Case No.
guardian of Charles Hill, 49A02-1509-CT-1288
incapacitated, and as next friend
of Alexandra Hill, a minor, and
Macey Hill, a minor, by her next
friend and mother, Tenise Hill-
Cornelius,
Appellant-Plaintiffs,

v.

Erich E. Gephart, City of
Indianapolis, and Marion
County Sheriff’s Department,
Appellee-Defendants.

Brown, Judge, dissenting.

[24] I respectfully dissent from the majority’s conclusion that a genuine issue of

material fact exists as to whether Charles was contributorily negligent and its

decision to reverse and remand on the trial court’s entry of summary judgment

in favor of the Defendants. Charles walked along Fox Hill Drive in a manner

which violated Ind. Code § 9-21-17-14, and there is nothing in the designated

evidence to demonstrate he “desired to comply with the law,” which is required

in order to rebut the presumption of negligence. See Davison v. Williams, 251

Ind. 448, 457, 242 N.E.2d 101, 105 (1968). Indeed, the designated evidence

Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016 Page 11 of 12
shows that Charles, in failing to comply with the statute enacted for his safety,

did not contravene the statute in a manner which might reasonably be expected

of a person of ordinary prudence, but instead walked along the wrong side of

the road clad in dark clothing and talking on his cell phone. Under these

circumstances, I cannot say that the Hills have rebutted the presumption of

negligence, and accordingly I would affirm the trial court’s grant of summary

judgment in favor of the Defendants.

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