MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 18 2016, 5:41 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
John P. Daly, Jr. James S. Stephenson
Golitko & Daly, PC Stephenson Morow & Semler
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Thatcher and Angela November 18, 2016
Thatcher, Court of Appeals Case No.
Appellants, 27A02-1512-CC-2257
Appeal from the Grant Circuit
v. Court
The Honorable Mark E. Spitzer,
City of Marion, Judge
Appellee. Trial Court Cause No.
27C01-1302-CC-193
Pyle, Judge.
Statement of the Case
[1] William Thatcher (“Thatcher”) and his wife Angela (“Angela”) (collectively
“the Thatchers”) appeal the trial court’s grant of summary judgment in favor of
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the City of Marion (“the City”) in the Thatchers’ negligence action. Finding no
designated evidence that the City had notice of the pothole in the alley where
Thatcher was injured, we affirm the trial court’s grant of summary judgment in
favor of the City.
[2] We affirm.
Issue
Whether the trial court erred in granting summary judgment in
favor of the City.
Facts
[3] Thatcher was the distribution center manager for the Chronicle-Tribune
(“Tribune”) newspaper in the City. His job duties included transferring
newspaper inserts from the newspaper’s warehouse to its nearby main building.
Specifically, Thatcher used a forklift to pick up skids of inserts at the warehouse
and then drove them down a municipal alley to the main building. At
approximately 10:00 p.m. on November 13, 2011, as he was backing up in the
alley, Thatcher felt the back tire of the forklift go into a pothole. The forklift
then tipped over, landing on and injuring Thatcher’s foot.
[4] On February 28, 2013, the Thatchers sued the City for negligence, with Angela
making a claim for loss of consortium. In August 2015, the City filed a
summary judgment motion wherein it argued, among other things, that it did
not have actual or constructive notice of the pothole. In support of its motion,
the City designated an affidavit from Michael Graft, head of the City’s
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engineering department. Graft stated that he had requested a review of City
records to determine whether the City had received notice concerning potholes
or other conditions in the alley behind the Chronicle-Tribune building.
According to Graft, the City had not received notice concerning potholes or
other conditions in this alley.
[5] The City also designated Thatcher’s deposition wherein he explained that the
Tribune’s former publisher Neal Ronquist (“Ronquist”) was the only Tribune
employee who had ever reported a condition of the alley to the City. Thatcher
believed that Ronquist spoke to the mayor “[s]omewhere after we came back in
2007.” (App. 138). At that time, the City and the Tribune each contributed to
the installation of a concrete pad at the Tribune’s loading dock. Thereafter,
Tribune employee Tim Dixon filled the alley’s potholes most of the time.
Thatcher did not remember the City ever filling any of the potholes. Thatcher
further explained that he did not see the pothole he believed he hit, and he also
stated that he did not know which one it was. According to Thatcher, the
pothole that he hit “could have just came up.” (App. 63).
[6] In his response in opposition to the City’s summary judgment motion, Thatcher
also designated his deposition as evidence and argued that the City had
“constructive and actual knowledge that forklifts were being used in this alley.”
(App. 127). Thatcher’s response addressed neither the City’s constructive or
actual notice of the potholes nor the specific pothole alleged to have caused his
injuries.
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[7] Following a hearing, the trial court granted summary judgment in favor of the
City. The Thatchers appeal.
Decision
[8] The Thatchers argue that the trial court erred in granting summary judgment in
favor of the City. We review an order for summary judgment de novo, which is
the same standard of review applied by the trial court. Ind. Restorative Dentistry,
P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015), reh’g denied. The
moving party must “affirmatively negate an opponent’s claim” by
demonstrating that the designated evidence raises no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law. Id.
The burden then shifts to the nonmoving party to demonstrate a genuine issue
of material fact. Id.
[9] In deciding whether summary judgment is proper, we consider only the
evidence the parties specifically designated to the trial court. Ind. Trial Rule
56(C), (H). We construe all factual inferences in favor of the nonmoving party
and resolve all doubts regarding the existence of a material issue against the
moving party. Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. 2014). Our
review of a challenged trial court summary judgment ruling is restricted neither
to the claims and arguments presented at trial nor the rationale of the trial
court’s ruling. Id. Rather, we may affirm a grant of summary judgment upon
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any theory supported by the evidence.1 Wagner v. Yates, 912 N.E.2d 805, 811
(Ind. 2009).
[10] The duty of a governmental entity to maintain and repair roads within its
control does not attach unless the city has actual or constructive notice of the
alleged defect. Harkness v. Hall, 684 N.E.2d 1156, 1161 (Ind. Ct. App. 1997),
trans. denied; Utley v. Healy, 663 N.E.2d 229, 233 (Ind. Ct. App. 1996), trans.
denied. Here, the alleged defect was the pothole. When the City affirmatively
negated the Thatchers’ negligence claim with an affidavit from the City’s
engineer that the City had never received notice of the pothole, the burden
shifted to the Thatchers to show that the City had received notice of the
pothole. This would have demonstrated a genuine issue for trial. The
Thatchers, however, instead designated evidence of knowledge that forklifts
were being used in the alley.
[11] On appeal, the Thatchers argue that there “is designated evidence the
newspaper complained about the condition of the alley before the accident.
(Appellant’s App. pp. 138-139). This is actual and not just constructive notice .
. . .” (The Thatchers’ Reply Br. 4). However, these cited pages of the
Thatchers’ appendix contain the evidence that the City designated in support of
its summary judgment motion. Specifically, these pages reveal that sometime
after 2007, the Tribune’s former publisher advised the City about the condition
1
Here, the trial court granted summary judgment in favor of the City based upon Thatcher’s contributory
negligence. We affirm the grant of summary judgment on a different theory.
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of the alley and the City and the Tribune each contributed to the installation of
a concrete pad at the Tribune’s loading dock. This is not evidence that the City
received notice about the current potholes in the alley, which was necessary to
create a genuine issue for trial. The trial court did not err in granting summary
judgment in favor of the City. See Bodnar v. City of Gary, 629 N.E.2d 278 (Ind.
Ct. App. 1994), reh’g denied, (affirming the trial court’s grant of summary
judgment where Bodnar failed to offer any evidence of notice to the City about
a tree limb that obscured a stop light).2
[12] Affirmed.
Kirsch, J., and Riley, J., concur.
2
Because the Thatchers’ cause of action has failed, so too has Angela’s derivative claim of loss of
consortium. See Durham ex rel. Estate of Wade v. U-Haul Intern., 745 N.E.2d 755, 764 (Ind. 2001). (explaining
that “if the spouse’s cause of action for personal injury fails, the loss of consortium claim fails with it”).
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