MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 10 2020, 10:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
STATE OF INDIANA AND Katherine G. Karres
INDIANA DEPARTMENT OF Hensley Legal Group, PC
TRANSPORTATION Indianapolis, Indiana
Curtis T. Hill, Jr.
Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLANT
CITY OF INDIANAPOLIS
Elise C.L. Bowling
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Department of November 10, 2020
Transportation, State of Indiana, Court of Appeals Case No.
and City of Indianapolis, 20A-CT-36
Appellants-Defendants, Appeal from the Marion Superior
Court
v. The Honorable Patrick J. Dietrick,
Judge
Jeremy Jackson, Trial Court Cause No.
Appellee-Plaintiff 49D12-1708-CT-30776
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 1 of 15
Weissmann, Judge.
[1] Jeremy Jackson got into a car accident in Indianapolis and later filed a
negligence complaint against the Indiana Department of Transportation
(INDOT), the State (collectively, the State), and the City of Indianapolis (the
City). The trial court entered summary judgment in favor of the State and the
City but later granted Jackson’s motion to correct error, setting aside the
summary judgment order. The State and the City now appeal, arguing that in
setting aside summary judgment, the trial court considered inadmissible
evidence, and that they are entitled to summary judgment as a matter of law
based on the admissible evidence. Finding issues of fact related to negligence
per se (with respect to the City), proximate cause (with respect to both the City
and the State), and duty (with respect to the City), we affirm and remand for
further proceedings.
Facts
[2] On September 12, 2016, around 9:00 p.m., Jackson was driving on the Calvary
Street Bridge in Indianapolis when Peckham drove into Jackson’s path from a
cross street and their vehicles collided. Peckham later stated that she could not
see Jackson’s vehicle because her view was obstructed by flowerpots in the
median. Jackson was injured in the collision.
[3] On August 9, 2017, Jackson filed a negligence complaint against Peckham. In
February 2018, he amended the complaint to add the City, and in August 2018,
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 2 of 15
he amended the complaint to add the State.1 On December 21, 2018, the City
and the State each filed a motion for summary judgment, arguing that Jackson
was not entitled to relief because he was contributorily negligent.
[4] In response to the summary judgment motions, Jackson designated evidence
including the responding police officer’s crash report and an affidavit of Kevin
Johnson, an accident reconstructionist whom Jackson designated as an expert.
The State moved to strike the crash report as inadmissible hearsay and the
Johnson affidavit because: (1) it did not include a curriculum vitae and
(2) Johnson did not state the methodology he used to form his opinions.
Jackson objected, submitting a curriculum vitae for Johnson as an exhibit.
[5] On August 7, 2019, the trial court denied the motion to strike the crash report
and the Johnson affidavit. It also granted summary judgment in favor of the
State and the City. On September 5, 2019, Jackson filed a motion to correct
error, alleging that there was a genuine issue of material fact regarding the
speed limit on Calvary Street. Following a hearing, the trial court granted
Jackson’s motion to correct error, setting aside the summary judgment motion.
The trial court noted that its decision was based on “the parties’ designated
evidence [and] the expert affidavits in particular,” which led it to conclude that
1
There were other named defendants who have either been dismissed or are not relevant to this appeal.
Jackson later dismissed Peckham from the lawsuit after they reached a settlement.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 3 of 15
“there are material issues of disputed fact that require resolution by the trier of
fact.” Appealed Order p. 1.
[6] The State and the City appealed. On March 27, 2020, this Court dismissed the
appeal, finding that the order being appealed was not a final and appealable
order. The State sought rehearing on the ruling. On May 12, 2020, this Court
granted rehearing and reinstated the appeal, finding that the order being
appealed was final and appealable.2
Discussion and Decision
[7] The State and the City argue that the trial court erred by granting Jackson’s
motion to correct error and setting aside its original summary judgment order.
We review an order granting a motion to correct error for an abuse of
discretion, which occurs when the decision is against the logic and effect of the
facts and circumstances before the court or if the court has misinterpreted the
law. Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind. Ct. App.
2017). We apply a de novo standard of review to any questions of law. Id.
2
Jackson renews his argument that the order granting his motion to correct error is not final and appealable.
He is incorrect. Initially, the trial court granted summary judgment in favor of the City and the State. That
was undeniably a final and appealable order. Ind. Appellate Rule 2(H)(2). When the trial court later granted
Jackson’s motion to correct error, it set aside its original summary judgment order. Indiana Trial Rule 59(F)
provides that the order granting the motion to correct error is final and appealable: “Any modification or
setting aside of a final judgment or an appealable final order following the filing of a Motion to Correct Error
shall be an appealable final judgment or order.”
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 4 of 15
[8] In addition to the standard of review applied to motions to correct error, we
must also consider the well-established standard of review applied to summary
judgment proceedings:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
I. Admission of Evidence
[9] Before we can determine the propriety of the orders, we must determine what
evidence may properly be considered. When considering a summary judgment
motion, the court should consider only evidence that is admissible pursuant to
the Rules of Evidence. E.g., D.H. v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct.
App. 2018) (citing Ind. Trial Rule 56(E) and noting that “a court considering a
summary judgment motion should disregard inadmissible information
contained in supporting or opposing affidavits”). The party offering the
evidence bears the burden of establishing its admissibility. Id.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 5 of 15
[10] The State and the City argue that the trial court erroneously admitted and relied
upon two key documents proffered by Jackson—the crash report and the
Johnson affidavit.
A. Crash Report
[11] The crash report, entitled “Indiana Officer’s Standard Crash Report,” was
attached as Exhibit 1 to Jackson’s response to the motions for summary
judgment and constitutes the report of the accident completed by Indianapolis
Metropolitan Police Officer Brian Swingle, who investigated the crash. State’s
App. Vol. II p. 113-17.
[12] The State and the City argue that the crash report constitutes inadmissible
hearsay that is specifically excluded under the relevant evidence rules. Hearsay
is a statement made by the declarant while not testifying that is offered to prove
the truth of the matter asserted. Ind. Evidence Rule 801(c).
1. Against the City
[13] Officer Swingle is an employee and agent of the City. As such, the crash report
is a statement of a party opponent (with respect to the City) and is therefore not
hearsay. Evid. R. 801(d)(2). Therefore, the exceptions to the hearsay rule are
irrelevant, and the trial court did not err by admitting the crash report against
the City.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 6 of 15
2. Against the State
[14] Officer Swingle is not an employee or agent of the State. Consequently, the
crash report constituted hearsay, and we must determine whether any of the
exceptions to the hearsay rule render it admissible. See Ind. Evidence Rule 802
(providing that hearsay is inadmissible unless it falls within an exception).
Evidence Rule 803(8)(B) provides that “the following are not excepted from the
hearsay rule: (i) investigative reports by police and other law enforcement
personnel, except when offered by an accused in a criminal case[.]” See also
Averitt Exp., Inc. v. State, 18 N.E.3d 608, 611-12 (Ind. Ct. App. 2014) (holding
that the trial court erred by denying a motion to strike a crash report proffered
by the State in a civil case).
[15] As against the State, the crash report can only be considered a police
investigative report, and obviously, this is not a criminal case. As such, the
plain language of Indiana Evidence Rule 803(8)(B) leads to an inescapable
conclusion that the crash report is inadmissible hearsay.3 Therefore, the trial
court erred by denying the State’s motion to strike the crash report and by
relying on the document in making its rulings with respect to the State.
3
Jackson argues that the crash report was admissible as the officer’s recorded recollections. This exception
to the hearsay rule applies when (1) a witness has insufficient memory of the event recorded; and (2) the
witness vouches for the accuracy of the prior statement. Kubsch v. State, 866 N.E.2d 726, 734 (Ind. 2007);
Ind. Evid. R. 803(5). Here, there is no designated evidence in the record establishing that Officer Swingle
had insufficient memory of the crash or that the officer vouched for the accuracy of the speed limit listed in
the crash report. State’s App. Vol. II p. 119. Therefore, this exception to the hearsay rule does not apply.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 7 of 15
B. Johnson Affidavit
[16] Next, we consider the Johnson affidavit, which Jackson designated as an expert
affidavit and on which the trial court explicitly relied in granting the motion to
correct error. Affidavits supporting and opposing summary judgment must,
among other things, be admissible and show that the affiant is competent to
testify to the matters covered in the affidavit. Ind. Trial Rule 56(E). An expert
affidavit must establish the credentials of the proffered expert and the
methodology underlying the opinions offered. Ind. Evid. Rule 702; Doe v.
Shults-Lewis Child and Family Servs., Inc., 718 N.E.2d 738, 750 (Ind. 1999)
(holding that expert affidavit must “present information supporting the
scientific validity of the methodologies and processes used to form his
opinion”). If those criteria are met, the expert testimony is admissible “only if
the court is satisfied that the expert testimony rests upon reliable scientific
principles.” Evid. R. 702.
[17] Johnson’s affidavit contains none of the methodology or reasoning that he used
to reach his opinions. The affidavit states only which documents Johnson
reviewed and that his opinion is based on the damage to the vehicle involved.
State’s App. Vol. II p. 186-87. Johnson’s affidavit provides no explanation of
how he formed his opinions—including whether his method utilizes techniques
or accepted methodologies within the field of accident reconstruction. It did
not provide the trial court “with enough information to proceed with a
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 8 of 15
reasonable amount of confidence that the principles used to form the opinion
are reliable.” Shults-Lewis, 718 N.E.2d at 751.4
[18] Additionally, the affidavit contains no information regarding Johnson’s special
training or practical experience. See McKibben Constr., Inc. v. Longshore, 788
N.E.2d 452, 461 (Ind. Ct. App. 2003) (holding that the trial court erred by
considering expert affidavit that was “completely devoid of any information
regarding training or practical experience”). The document failed to state how
long Johnson had been in the field of accident reconstruction, provide any
information about his training and/or education, contain any information
about certifications or licensures, or offer any information about experience
establishing him as an expert. Jackson later attached Johnson’s curriculum
vitae as an exhibit to Jackson’s response to the motion to strike. But because it
was not timely designated in response to the summary judgment motion, it
could not be considered by the trial court. See HomEq Servicing Corp. v. Baker,
883 N.E.2d 95, 98-99 (Ind. 2008) (creating a bright-line rule that trial courts
may not consider evidence in opposition to summary judgment after thirty-day
response period has expired).5
4
Jackson argues that Johnson’s affidavit could have been admissible as an opinion of a lay person. But the
trial court relied on Johnson’s opinion as an expert. Furthermore, Johnson’s affidavit was not based on his
own perceptions of the crash, meaning that it would not have been an admissible lay opinion. Averitt Exp.,
Inc., 18 N.E.3d at 612-13.
5
We also note that even if the designation had been timely, the curriculum vitae was not authenticated by
affidavit or any other testimony from Johnson that those were, in fact, his credentials, meaning that it would
have been inadmissible anyway. Ind. Evid. Rule 901(a) (authentication requirement).
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 9 of 15
[19] Given the dearth of information regarding Johnson’s methodology, reasoning,
training, experience, or other qualifications, the Johnson affidavit was
inadmissible and the trial court erred by relying on it in ruling on Jackson’s
motion to correct error.
II. Summary Judgment
[20] Next, we will consider whether the trial court properly set aside its order
granting summary judgment in favor of the State and the City. Most tort
lawsuits, including negligence claims, are subject to the Comparative Fault Act.
Ind. Code § 34-51-2-1 et seq. Under the Comparative Fault Act, fault is
assigned proportionately, and a claimant is not barred from recovery simply
because he had “contributory fault.” I.C. § 34-51-2-5.
[21] The Comparative Fault Act, however, does not apply to governmental entities,
I.C. § 34-51-2-2, meaning that the common law contributory negligence
doctrine applies. Murray v. Indianapolis Pub. Schs., 128 N.E.3d 450, 452 (Ind.
2019). When contributory negligence applies to a claim, the plaintiff is barred
“from recovery when he or she is negligent and this negligence is even slightly
the cause of the alleged damages.” Id. at 453. While contributory negligence is
usually a question of fact, it may be appropriately decided on summary
judgment if the facts are undisputed and only a single inference can be drawn
therefrom. Id. at 453.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 10 of 15
A. Negligence Per Se
[22] Here, with respect to the State, the admissible evidence in the record is
undisputed. The speed limit at the location of the accident was thirty miles per
hour. State’s App. Vol. II p. 209-11 (photos of speed limit signs near the
accident site), 214-18 (evidence establishing that area in question was an urban
district); see also Ind. Code § 9-21-5-2(a)(1) (a person may not drive in excess of
thirty miles per hour in an urban district). Jackson was driving at thirty-five
miles per hour. State’s App. Vol. II p. 132 (Jackson’s own deposition
testimony);6 see also, e.g., Bazeley v. Price, 14 N.E.3d 127, 131 (Ind. Ct. App.
2014) (drivers have a duty to obey speed limits); Key v. Hamilton, 963 N.E.2d
573, 580 n.5 (Ind. Ct. App. 2012) (drivers have a duty to obey traffic laws).
“Generally, the violation of a statutory duty constitutes negligence per se,”
including the violation of a statutory speed limit. St. John Town Bd. v. Lambert,
725 N.E.2d 507, 517 (Ind. Ct. App. 2000). Therefore, the only conclusion that
can be drawn from the undisputed evidence is that Jackson was negligent per se
with respect to the State.
6
Jackson notes that he attested that he (mistakenly) believed the speed limit was thirty-five miles per hour
and that he was driving thirty-five miles per hour. Therefore, he insists that his testimony creates an issue of
fact as to whether he may have been driving at the true speed limit of thirty miles per hour, notwithstanding
the fact that he explicitly stated that he was driving thirty-five miles per hour. Essentially, he seems to be
arguing that he would have testified he was driving thirty miles per hour had he known that was the speed
limit. He cannot create an issue of fact by contradicting his own testimony. Bunger v. Brooks, 12 N.E.3d 275,
279 (Ind. Ct. App. 2014). The only admissible evidence regarding Jackson’s driving speed is his own explicit
testimony that he was driving at thirty-five miles per hour.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 11 of 15
[23] With respect to the City, however, because we have found that the crash report
was properly admitted into evidence as a statement of a party opponent, the
issue is not undisputed. Specifically, the crash report states that the speed limit
at the location of the accident was thirty-five miles per hour. State’s App. Vol.
II p. 114-15. This issue of fact prevents a finding of negligence per se with
respect to the City and renders summary judgment in favor of the City
improper.
B. Proximate Cause
[24] With respect to the State, having found that Jackson was negligent per se, we
must determine whether the issue of proximate cause is appropriately resolved
by summary judgment. “An act or omission is said to be a proximate cause of
an injury if the resulting injury was foreseen, or reasonably should have been
foreseen, as the natural and probable consequences of the act or omission.”
Funston v. Sch. Town of Munster, 849 N.E.2d 595, 600 (Ind. 2006).
[25] The State contends that it is reasonably foreseeable that a driver who is
speeding while entering an intersection could contribute to an accident. Traffic
Safety Engineer Luis Laracuente attested that “the higher the speed, the less
time a driver would have to react and make a certain movement” and that an
increase in five miles per hour over the posted speed limit results in a
“significant” reduction in reaction time. State’s App. Vol. II p. 79-80.
[26] On the other hand, there is also evidence in the record that a higher than
average number of crashes occurred at the intersection at issue. State’s App.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 12 of 15
Vol. II p. 168. Additionally, Peckham attested that she was on an unnamed
access road that intersected with Calvary. Before she drove across Calvary, she
looked for oncoming vehicles, but her view was obstructed by large planters in
the median on Calvary. Id. at 126. In the years leading up to the accident, the
City had received multiple complaints that northbound motorists on the access
road were unable to see westbound motorists on Calvary because of the planters
in the median. Id. at 151, 158-59. Five days before the accident in this case
occurred, the City and INDOT conducted a site visit at the access road and
decided to close the access road temporarily. Id. at 156.7
[27] Generally, proximate cause is a question of fact to be determined by the jury.
Gates v. O’Connor, 111 N.E.3d 215, 224 (Ind. Ct. App. 2018), trans. denied. But
when the relevant facts are undisputed and lead to only a single inference or
conclusion, it may be resolved as a matter of law. Id. In this case, while the
core relevant facts are essentially undisputed, the inferences that may be drawn
from those facts are anything but. In other words, proximate cause must be
determined by a factfinder following a trial.
[28] In sum, while we have found that Jackson was negligent per se (with respect to
the State), we have found that issues of fact prevent us from determining the
issue of proximate cause. Therefore, the trial court did not err by granting the
7
Obviously, while INDOT and the City agreed to close the access road, the closure had not taken effect five
days later when the accident occurred.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 13 of 15
motion to correct error and setting aside its original summary judgment order
with respect to the State.8
C. Duty
[29] The City argues that even if it does not prevail on the issue of negligence per se,
summary judgment is still warranted because it does not owe a duty with
respect to the intersection at issue. Specifically, the City argues that the relevant
roadways are under INDOT’s exclusive jurisdiction. While duty is often a
question of law to be resolved by a court, there may be factual questions
interwoven with the analysis, rendering the existence of duty a mixed question
of law and fact that must be determined by a factfinder. E.g., Rhodes v. Wright,
805 N.E.2d 382, 386 (Ind. 2004) (finding that where there was a factual dispute
about which party had control of the premises at which an accident occurred,
jury should decide the question of duty).
[30] On the issue of control of the roadways, median, and intersection at issue
herein, the record is as clear as the proverbial mud:
• The Calvary Street Bridge is an overpass under INDOT jurisdiction,
City’s Supp. App. Vol. II p. 122;
• the planters are placed in right of ways shared by the City and the State,
State’s App. Vol. II p. 146;
• the City has a legal right to remove or move the planters, id.;
8
Although we need not reach the issue of proximate cause with respect to the City because we have found an
issue of fact regarding negligence per se, we note that our analysis of proximate cause would apply to the City
as well as the State.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 14 of 15
• the planters were owned by the City and were part of the Adopt-A-
Median program, id. at 136;
• a City engineer disclaimed all knowledge of the planters and attested that
the City has no involvement with or record of them, id. at 145;
• the City and the State were working together on a permit process to close
and repurpose the access road, id. at 166;
• a landscape architect involved in discussions about the closure of the
access road attested that “there was a lack of understanding of who owns
the cut-through, INDOT or the City,” and that the City put up
construction barrels to close the access road for a period of time in the
past, id. at 178; and
• the same landscape architect attested that there was a “lack of
understanding . . . on the City’s part about who the actual owner and/or
operator” of the access road was and that the site visit conducted by the
City and INDOT caused those two entities “to have a conversation about
that.” Id. at 104.
It is readily apparent that there are multiple issues of fact interwoven with the
question of the City’s duty regarding this intersection. Therefore, the trial court
did not err by granting Jackson’s motion to correct error and setting aside its
summary judgment order.
[31] The judgment of the trial court is affirmed and remanded for further
proceedings.
Bailey, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-36 | November 10, 2020 Page 15 of 15
Indiana Department of Transportation, State of Indiana, and City of Indianapolis v. Jeremy Jackson (mem. dec.)
Combined Opinion