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

FILED
OPINION ON REHEARING Jul 20 2016, 8:19 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 July 20, 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 on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 1 of 5
 Mathias, Judge.

[1] Appellees Erich E. Gephart, City of Indianapolis, and the Marion County

Sheriff’s Department (collectively “the Appellees”) petition for rehearing of our

court’s May 6, 2016 decision, in which we reversed and remanded the trial

court’s grant of summary judgment in favor of Appellants. Appellees argue that

no admissible evidence establishes that vegetation prevented Hill from walking

along the correct side of the roadway and that Hill failed to rebut the

presumption of negligence raised by his failure to comply with Indiana Code

section 9-21-17-14. We issue this opinion on rehearing to fully consider

Appellees’ argument that some of Plaintiff’s designated evidence, such as Bill

Senefeld’s1 (“Investigator Senefeld”) affidavit and photographs, are

inadmissible.

[2] Appellee-Defendants filed a motion to strike the Marion County Sheriff’s Office

Accident Review Board finding and Investigator Senefeld’s affidavit and

accompanying photographs in the trial court, arguing that they were

inadmissible. However, the trial court granted summary judgment in favor of

appellee-defendants without ruling on its motion to strike inadmissible

evidence. When a trial court does not specifically rule on a motion to strike

affidavits, but grants summary judgment, the motion is impliedly overruled.

Palmer v. State, 363 N.E.2d 1245, 1248 (Ind. Ct. App. 1977). Therefore,

1
We strike our classification of Investigator Senefeld as an “expert,” as neither party nor the trial court
designated him as such.

Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 2 of 5
 Investigator Senefeld’s affidavit and photos were properly designated and

within our purview to consider on appeal.

[3] Appellees also argue that Investigator Senefeld never testified that the

photographs were “true and accurate representations of a scene personally

viewed by that witness.” Specifically, Appellees contend that because

Investigator Senefeld did not visit and photograph the accident scene until three

and a half years later that he did not have personal knowledge, and thus the

photos are irrelevant and prejudicial. The trial court has broad discretion in

ruling on the admissibility of evidence. Guzik v. Town of St. John, 875 N.E.2d

258, 265 (Ind. Ct. App. 2007).

[4] “Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Ind. Evidence Rule 401. This often

includes facts that merely fill in helpful background information for the jury,

even though they may only be tangentially related to the issues presented. State

Farm Mut. Auto. Ins. Co. v. Earl, 33 N.E.3d 337, 341 (Ind. 2015). Investigator

Senefeld did not visit or photograph the accident scene the evening the accident

occurred. However, he did have personal knowledge of his visit to the accident

scene as described in his affidavit, along with the photos that he took on May

27, 2015. These photographs depict the area where the accident occurred, and

Investigator Senefeld’s affidavit describes the area as he saw it during his

investigation. This evidence at the very least provides background information

Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 3 of 5
 that would be helpful to a jury and thus is relevant under Indiana Evidence

Rule 401.

[5] Further, in concluding that genuine issues of material fact precluded the entry

of summary judgment, we also relied significantly on Charles’s deposition

testimony which stated:

Q: Now, earlier you told me that you would walk or that you
knew to walk to face traffic when you were walking. If you were
walking back to your parents’ house, you would be going from
the east to go to the west, correct?

A: Yeah. We walked on the opposite side of the street. When
we went back, it was the same side.

Q: Why did you take the same side?

A: Because a tree was down in the road.

***

Q: I want to ask about this. So that tree that was down was an
impediment or something that was blocking the way you and
Macy wanted to walk?

A: Yeah.

Appellant’s App. pp. 55; 57.

Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 4 of 5
[6] Although Appellees argue that a tree is not vegetation, a tree is actually

vegetation.2 In addition, Charles testified that the usual path he would have

taken to walk back home was blocked. For purposes of clarification, this

obstruction was a tree in the road. We emphasize the more important fact in

this situation is that the blockage caused Charles and Macey to take a different

route, not necessarily whether the blockage was caused by a tree or any other

type of vegetation. Therefore, Charles’s testimony creates a genuine issue of

material fact as to whether he was contributorily negligent in walking on the

right side of the road instead of the left side as Indiana Code section 9-21-17-14

requires. Again, it is Charles’s burden at trial to rebut the presumption that he

was contributorily negligent and acted reasonably in violating the statute.

[7] Because Investigator Senefeld’s declaration and photos were admissible and we

relied on Charles’s testimony to conclude that a genuine issue of material fact

existed as to his contributory negligence, we grant Appellee’s motion for re-

hearing for the limited purpose of clarification and affirm our May 6, 2016

opinion in all other respects.

Kirsch, J., concurs.

Brown, J., would grant rehearing for the purpose of affirming the trial court, in
accordance with her dissent expressed in the May 6, 2016 opinion.

2
Vegetation is defined as plants in general; or plants that cover a particular area. See http://www.merriam-
webster.com/dictionary/vegetation. A tree is defined as a usually tall plant that has a thick, wooden stem,
and many large branches. See http://www.merriam-webster.com/dictionary/tree.

Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 5 of 5