dissenting.
While I concur as to issue #2, I respectfully dissent from the majority's disposition of issue # 1 regarding the existence of a duty on the part of CUI. The majority's discussion of the three factors giving rise to a duty is accurate. However, I disagree with the majority's application of the foreseeability factor to the facts of this case.
I simply do not believe that CUI could have reasonably foreseen that by directing traffic to proceed in the right lane, Gilliam would use the shoulder of the road as an additional lane for traveling. Moreover, it was also unforeseeable that Gilliam would continue to proceed down the shoulder of the road after he saw the parked vehicle obstructing his path. Contrary to the majority's conclusion, Gilliam was not a reasonably foreseeable victim who was injured by a reasonably foreseeable harm. Hence, because CUI owed no duty to Gilliam, I would affirm the trial court's grant of summary judgment in favor of CUL. See Thiele v. Faygo Beverage Imc. (1986), Ind.App., 489 N.E.2d 562, 574, n. 2, trams. denied.
Furthermore, as a matter of law, Gilliam's actions demonstrate that he was more than fifty percent (50%) at fault for his injuries. Thus, under our comparative fault system he is not entitled to any recovery. See Forbes v. Walgreen Co. (1991), Ind.App., 566 N.E.2d 90, 91-92.
After considering cases such as this one in which the plaintiff saw the parked vehicle in the shoulder obstructing his path, continued to drive on the shoulder anyway, collided with the vehicle, and then blames his resulting injury on the defendant, it is no wonder people have grown dissatisfied with our present tort system and have called upon the legislature for reform. With recent proposals for tort reform, such as House Bill 1741 which recently passed the Indiana House of Representatives and is now being considered by the Indiana Senate, changes in our tort system may be just down the road.