MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       FILED
this Memorandum Decision shall not be                              Dec 04 2018, 7:55 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES
Roger B. Finderson                                      Michael B. Langford
Finderson Law LLC                                       R Jay Taylor, Jr.
Fort Wayne, Indiana                                     Scopelitis, Garvin, Light, Hanson
                                                        & Feary, P.C.
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Arnold Shepherd and                                     December 4, 2018
Carolyn Shepherd,                                       Court of Appeals Case No.
Appellants-Plaintiffs,                                  18A-CT-1233
                                                        Appeal from the Kosciusko
        v.                                              Superior Court
                                                        The Honorable David Cates, Judge
Robert J. Carpenter and                                 Trial Court Cause No.
KLLM, Inc.,                                             43D01-1609-CT-56
Appellees-Defendants.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018           Page 1 of 24
                                Case Summary and Issue
[1]   Following an accident involving a forklift and a semi-tractor trailer, the forklift

      operator, Arnold Shepherd, filed suit against the driver of the semi-tractor

      trailer, Robert J. Carpenter, and Carpenter’s employer, KLLM, Inc.

      (collectively, “Defendants”). The trial court awarded summary judgment in

      favor of the Defendants. On appeal, Shephard argues the trial court

      erroneously granted summary judgment because genuine issues of material fact

      remain. Concluding the Defendants are entitled to judgment as a matter of law,

      we affirm.



                            Facts and Procedural History
[2]   In the fall of 2014, Shepard was employed as a forklift driver by a processing

      plant owned by Creighton Brothers, LLC, d/b/a Crystal Lake, LLC (“Crystal

      Lake”), in Warsaw, Indiana. Shepard’s primary responsibilities included

      loading and unloading products from trailers arriving at Crystal Lake.


[3]   Crystal Lake’s loading dock includes a safety system that secures trailers in

      place while being loaded and unloaded. To secure a trailer, dock workers

      activate a metal arm which raises from the ground level below the dock bay to

      the space between the body of a trailer and a safety bar extending from the rear

      of the trailer. Once properly secured, a trailer cannot pull away from the

      loading dock.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 2 of 24
[4]   This safety system also includes two sets of red and green lights. The first set of

      lights is positioned on the interior of the dock and notifies dock workers when

      the trailer is secured while the second set of lights is positioned on the exterior

      of the dock to notify drivers. The two sets of lights work in tandem and cannot

      be the same color at the same time; therefore, if the driver’s light is green, the

      dock’s light is red, and if the driver’s light is red, the dock’s light is green. For

      the dock workers, a green light reflects that it is safe to load or unload the

      trailer. For the drivers, a green light means it is safe to pull away with a trailer.


[5]   On October 23, 2014, Carpenter arrived at the Crystal Lake facility and backed

      his KLLM tractor trailer unit into a loading area. Carpenter set his air-brakes,

      exited the semi, and walked back toward the dock. Shepherd and his co-

      worker, Michael Williams, were waiting at the dock to load the trailer.

      Shepherd, whose view of the lighting system was obstructed by Williams, drove

      his forklift into the open trailer. Unbeknownst to Shepherd, however,

      Carpenter had reentered the semi, and at the moment the front wheels of

      Shepherd’s forklift came into contact with the trailer, Carpenter pulled the

      trailer forward. Shepherd’s forklift fell three feet to the ground between the

      dock bay and the rear of the trailer. His leg was broken in the fall.


[6]   On September 6, 2016, Shepherd and his wife, Carolyn, filed a complaint

      against the Defendants alleging negligence and seeking damages for personal

      injuries and loss of consortium. Defendants filed a motion for summary

      judgment on February 28, 2018. Shepherd filed his response and designated



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 3 of 24
      evidence on March 30. After a hearing, the trial court granted the Defendants’

      motion for summary judgment. Shepherd now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[7]   Summary judgment is a tool which allows a trial court to dispose of cases where

      only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The

      moving party has the initial burden to show the absence of any genuine issue of

      material fact as to a determinative issue. Id. As opposed to the federal standard

      which permits the moving party to merely show the party carrying the burden

      of proof lacks evidence on a necessary element, Indiana law requires the

      moving party to “affirmatively negate an opponent’s claim.” Id. (quotation

      omitted). The burden then shifts to the non-moving party to come forward with

      contrary evidence showing an issue to be determined by the trier of fact. Id.

      Although this contrary evidence may consist of as little as a non-movant’s

      designation of a self-serving affidavit, summary judgment may not be defeated

      by an affidavit which creates only an issue of law—the non-movant must

      establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d

      436, 441-42 (Ind. 2015).


[8]   On appeal, we review summary judgment with the same standard employed by

      the trial court: relying only on the evidence designated by the parties and

      construing all facts and reasonable inferences in favor of the non-moving party,

      we will affirm the grant of summary judgment “if the designated evidentiary
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 4 of 24
       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.” Ind. Trial Rule 56(C);

       City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). “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.” Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 253 (Ind.

       2015) (citation omitted).


[9]    Notably, the non-moving party has the burden of persuading us that the trial

       court’s ruling was erroneous. Hughley, 15 N.E.3d at 1003. Mindful of

       Indiana’s onerous and distinctive summary judgment standard aimed at

       protecting a party’s day in court, however, we must carefully assess the trial

       court’s decision. Id.


                                     II. Summary Judgment
[10]   Shepherd argues the trial court erroneously granted summary judgment in favor

       of the Defendants. Specifically, Shepherd claims that in response to the

       Defendants’ motion for summary judgment, he designated several genuine

       issues of material fact, which must be resolved at a later trial. The Defendants

       argue, not unexpectedly, that no genuine issues of material fact remain.


                                        A. Admissible Evidence
[11]   As an initial matter, Shepherd contends the Defendants improperly relied on

       the affidavit of Williams, whom Shepherd alleges is an “unavailable, unique

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 5 of 24
       witness prohibited from consideration for summary judgment[.]” Amended

       Brief of Appellants at 25. Because Shepherd did not file a motion to strike or

       otherwise object to Williams’ affidavit in the trial court, he has waived this issue

       for our review.


[12]   In support of their motion for summary judgment, the Defendants designated

       the affidavit of Williams, Shepherd’s co-worker and the only eyewitness to the

       accident. Williams’ affidavit provides, in relevant part:


               On October 23, 2014, I was working on the Crystal Lake freight
               dock with [Shepherd], another dockhand. We were the only two
               dockhands in that dock area at the time. I was standing by the
               dock door as [Shepherd] prepared to enter a trailer on a forklift.
               As he approached, I noticed the interior warning light was red,
               indicating the dock lock was not activated and that it was not
               safe to enter the trailer because the trailer could move. I
               immediately activated the lock button to engage the dock lock;
               however, [Shepherd’s] forklift was already entering the trailer.


               At the exact moment [Shepherd] began to enter the trailer on the
               forklift, the trailer began to move forward. The movement could
               not have occurred if the dock lock was engaged. The trailer’s
               forward movement caused the forklift to fall between the dock
               wall and rear of the trailer. [Shepherd] was injured in the fall.


               In my experience working with the dock locks at Crystal Lake,
               [Shepherd] should not have entered the trailer while the interior
               door lock light was red, indicating the lock was not engaged and
               the trailer could move. In my experience, the truck driver could
               not have moved if the lock was engaged, but would have believed
               it was safe to do if the lock was not engaged because the exterior
               light would have displayed green.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 6 of 24
               Based on my experience and training, [Shepherd] caused his own
               injury. The truck driver could not have known that [Shepherd]
               was entering the trailer and would have believed that it was safe
               to pull away from the dock because he would have seen the
               exterior green light indicating it was safe to do so.


               I informed Warehouse Manager Kevin McSherry and Plant
               Manager Jeff Johnson about what I saw that day. Mr. Johnson
               instructed me to forget what I observed.


       Appellant’s Appendix, Volume II at 74-75.


[13]   In ruling on a motion for summary judgment, a trial court may only consider

       material deemed appropriate by Indiana Trial Rule 56(E). Duncan v. Duncan,

       764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied. That rule provides:


               Supporting and opposing affidavits shall be made on personal
               knowledge, shall set forth such facts as would be admissible in
               evidence, and shall show affirmatively that the affiant is
               competent to testify to the matters stated therein. Sworn or
               certified copies not previously self-authenticated of all papers or
               parts thereof referred to in an affidavit shall be attached thereto
               or served therewith.


       The affidavit requirements of Trial Rule 56(E) are mandatory and a court

       considering a summary judgment motion should disregard inadmissible

       information contained in supporting or opposing affidavits. Id. The party

       offering the affidavit into evidence bears the burden of establishing its

       admissibility. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 7 of 24
[14]   However, it is well settled that arguments not presented to the trial court on

       summary judgment are waived on appeal. King v. Ebrens, 804 N.E.2d 821, 826

       (Ind. Ct. App. 2004). “A complaining party has a duty to direct the trial court’s

       attention to a defective affidavit, and failure to raise an objection constitutes

       waiver.” Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990). Because

       Shepherd did not file a motion to strike or otherwise object to Williams’

       affidavit in the trial court, we cannot conclude that the trial court erred in

       considering Williams’ affidavit.1


                                                  B. Negligence
[15]   Shepherd’s underlying claims sound in negligence, a tort that requires (1) a duty

       owed by the defendant to the plaintiff; (2) a breach of that duty by allowing

       conduct to fall below the applicable standard of care; and (3) compensable

       injury to the plaintiff proximately caused by the defendant’s breach of duty.

       E.g., Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). Duty is generally a

       question of law to be determined by the court while breach and proximate cause




       1
        Furthermore, under the doctrine of invited error, a party may not take advantage of an error that he
       commits, invites, or which is the natural consequence of his own neglect or misconduct. Smith v. McLeod
       Distrib., Inc., 744 N.E.2d 459, 466 (Ind. Ct. App. 2000). At the summary judgment hearing, Shepherd’s
       counsel stated:
             I would also point out, Your Honor, with Mr. Williams since he’s not around, though the
             affidavit is fully appropriate in a summary judgment setting, unless he’s deceased, which I have
             no knowledge of one way or the other, that affidavit is not admissible at trial. We have tried, as
             I said, to take his deposition to clarify what Mr. Williams might have to say. But as it is, here at
             this level, I don’t think we need to rely on Mr. Williams one way or the other in order to obtain
             the position that Mr. Carpenter breached duty.
       Transcript, Volume 2 at 13. Therefore, not only did Shepherd fail to object to the affidavit, he admitted the
       affidavit was “fully appropriate in a summary judgment setting[.]” Id. In so doing, Shepherd invited any
       error and he cannot now complain thereof.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018                    Page 8 of 24
       generally present questions of fact which must be determined by a factfinder.

       E.g., Megenity v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017). “[S]ummary

       judgment is generally inappropriate in negligence cases because issues of

       contributory negligence, causation, and reasonable care are more appropriately

       left for the trier of fact.” Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind.

       Ct. App. 2004) (citations omitted), trans. denied. Nonetheless, summary

       judgment is appropriate when the undisputed material evidence negates one

       element of a negligence claim. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind.

       2004).


[16]   It is uncontested that Carpenter owed Shepherd a duty to operate his semi-

       tractor trailer in a reasonable manner. Although the breadth of that duty is left

       unexplored by the parties, under Indiana tort law, except when a specific duty is

       declared by statute or common law, “the duty of care is well established—that

       which is reasonable under the circumstances.” Estate of Heck ex rel. Heck v.

       Stoffer, 786 N.E.2d 265, 270 (Ind. 2003). The Defendants’ motion for summary

       judgment argued solely that Shepherd has failed to demonstrate a breach of

       duty, Appellant’s App., Vol. II at 47, and, in response, Shepherd designated

       “six primary disputed facts[.]” Appellant’s Amended Brief at 7.


                                 1. Was the Interior Dock Light Green?

[17]   First, Shepherd argues circumstantial evidence creates a genuine issue of

       material fact regarding the color of the lighting system at the time of the

       accident. In their motion for summary judgment, the Defendants alleged:


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 9 of 24
               Every witness—all of whom are Shepherd’s co-workers—confirm
               that Shepherd attempted to drive his forklift onto the KLLM
               trailer even though Shepherd had a red light. By definition,
               according to the witnesses, this red light means that: (1) the
               trailer was not locked into the dock through the docking
               engagement system and (2) Carpenter, the truck driver, had a
               green light, which means he could drive forward. It is further
               undisputed that the green light / red light and docking system
               were fully functional and operational at the time of this incident.


       Appellant’s App., Vol. II at 47-48.


[18]   Indeed, Williams’ affidavit provides:


               As [Shepherd] approached, I noticed the interior warning light
               was red, indicating the dock lock was not activated and that it
               was not safe to enter the trailer because the trailer could move. I
               immediately activated the lock button to engage the dock lock;
               however, [Shepherd’s] forklift was already entering the trailer.


       Id. at 74.


[19]   The accident was also captured on the facility’s video system. Two supervisors

       who reviewed the video confirmed the interior dock light was red at the time

       Shepherd’s forklift entered the trailer. Jeffery Johnson, Crystal Lake’s plant

       manager, stated during his deposition:


               [Johnson]:       The light [sic] my opinion of the video was that the
                                light was red inside the building.


               [Question]: Okay, and you say that because you can see the
                           light on the right side activated?


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 10 of 24
               [Johnson]:       Yes, sir.


               [Question]: Is that right? Okay. It’s black and white.
                           Therefore, you can’t pick out the colors.


               [Johnson]:       The videos are in color.


               [Question]: Oh, they are?


               [Johnson]:       But, they cannot, because of the distance and
                                because of the lighting in that room, it appears to be
                                black and white.


               [Question]: I understand now. Okay, but the fact that it’s on the
                           right side, and that’s the one that’s activated, tells
                           you he had the right, the red light?


               [Johnson]:       Yes, sir.


       Appellant’s App., Vol. III at 128.


[20]   Kevin McSherry, Crystal Lake’s shipping and transportation manager, agreed

       with Johnson’s assessment of the video during his own deposition:


               [Question]: Based on your investigation, do you believe that
                           Mr. Shepherd had the green light to enter the trailer
                           when he did?


               [McSherry]: When he went across the plate, I don’t believe he
                           did.


               [Question]: Why do you reach that opinion?

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 11 of 24
               [McSherry]: Because, in the video, it shows differently.


       Id. at 40.


[21]   Finally, Carpenter stated the exterior dock light was green in his interview with

       police following the accident. The resulting accident report states, in relevant

       part:


               Robert Carpenter stated he looked and observed that he had the
               green light to proceed to pull away from the dock. Robert
               Carpenter began to pull forward and then he heard a loud
               crashing sound.


       Id. at 89. Therefore, Williams and Carpenter, the only eyewitnesses to the

       lighting system at the time of the accident testified that the interior dock light

       was red, and the exterior dock light was green, respectively. The fact that the

       interior dock light was red was also confirmed by the two witnesses who

       reviewed the video of the accident.


[22]   Shepherd himself was unable to state whether he had a red or a green light at

       the time he entered the trailer because Williams was blocking his view.

       Shepherd emphasizes, however, that this is distinguishable from an admission

       that the light was red, because:


               It is possible to deny the light was red based on the way the dock
               lock system worked, . . . specifically, the dock lock was activated
               and fully engaged in the upward “locked” position, while the
               crookedness of the trailer caused it to avoid being actually held
               fast to the dock, allowing the trailer to be pulled away from the
               dock.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 12 of 24
       Amended Br. of Appellants at 13.


[23]   In support of this argument that the “dock lock was activated and fully engaged

       in the upward ‘locked’ position,” id., Shepherd points to McSherry’s deposition

       testimony. McSherry arrived at the scene within a minute of the accident.

       During his deposition, McSherry identified a photograph which depicted the

       dock lock mechanism in the locked position and stated that the photograph

       accurately depicted the post-accident scene that he had observed. Appellant’s

       App., Vol. III at 25.


               [Question]: If Mr. Shepherd had a red light, would the trailer
                           have been locked?


               [McSherry]: No.


               [Question]: If he had a green light, does that tell you the trailer
                           would have been locked?


               [McSherry]: It tells me that the lock would be in the up position.


               [Question]: But, it can’t tell you whether it’s actually latched
                           onto the bumper?


               [McSherry]: Right.


               [Question]: What do you think happened here?


               [McSherry]: It’s my opinion that the lock was in the up position,
                           but was not, due to the trailer being so crooked, was
                           not actually hooked because as you see, the lock in

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 13 of 24
                                [Defendant’s Exhibit 13], there’s not a lot of room
                                for leeway there, and if that hook goes underneath
                                the bumper, the bumper could slide right off.


       Id. at 41-42.


[24]   Thus, on one hand, McSherry’s opinion was “that the lock was in the up

       position,” while on the other hand, based upon his review of the video,

       McSherry stated the interior dock light was red at the time Shepherd drove his

       forklift into the trailer. Id. It is uncontested by the parties, and established by

       McSherry’s own testimony, that “[w]hen the lock is in the up position, the

       [interior dock] light is green.” Id. at 41. Therefore, to the extent McSherry

       offers his opinion regarding the position of the lock at the time of the accident,

       his deposition testimony is internally inconsistent. And, generally, a witness’s

       inconsistent testimony cannot create a genuine issue of material fact. Miller v.

       Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001) (finding no issue of material fact

       where witness was inconsistent).


[25]   In any event, the evidence presents a rather simple explanation for this apparent

       inconsistency. As Williams’ affidavit explains, he immediately activated the

       locking mechanism after noticing Shepherd was approaching the trailer under a

       red light, but it was too late to prevent the trailer from pulling forward. This is

       the only evidence in the record describing how and when the dock lock was

       activated and why it did not secure to the trailer. Because of Williams’ actions,

       the interior dock light would have been red at the time Shepherd entered the

       trailer and the lock would also have been in the locked position, i.e., the dock

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 14 of 24
       light was green, as McSherry arrived on the scene of the accident moments

       later.


[26]   Here, the Defendants designated several pieces of direct evidence that the

       interior dock light was red at the time Shephard entered the trailer. Shepherd,

       in response, designated evidence that the locking mechanism was in the

       upward, locked position after the accident. Although negligence may be proved

       by circumstantial evidence, see Richter v. Klink Trucking, Inc., 599 N.E.2d 223,

       227 (Ind. Ct. App. 1992) (noting negligence may be proved by direct or

       circumstantial evidence), trans. denied, Shepherd’s circumstantial evidence fails

       to contradict the evidence advanced by the Defendants, and in fact, fits logically

       within the Defendants’ theory of events. By failing to present a differing

       version of the facts for the trier of fact to resolve, Shepherd has failed to

       demonstrate a genuine question of material fact. See, e.g., Tucher v. Brothers Auto

       Salvage Yard, Inc., 564 N.E.2d 560, 563 (Ind. Ct. App. 1991), trans. denied.

       Accordingly, we conclude Shepherd failed in his burden of persuading us that

       the trial court’s ruling was erroneous as it pertains to the color of the interior

       dock light at the time of the accident. Hughley, 15 N.E.3d at 1003.


                                       2. Was the Trailer Crooked?

[27]   Arguing the color of the interior dock light is not “the only material fact” upon

       which summary judgment hinges, Shepherd proceeds to the question of

       whether Carpenter parked his trailer “extremely crooked.” Amended Br. of

       Appellants at 16. Specifically, Shepherd argues this fact is material “in that if it

       was so ‘extremely crooked’ as to prevent the dock lock from holding the trailer,
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 15 of 24
       then it combines with the other disputed facts to demonstrate Carpenter’s

       failure to exercise reasonable care toward Shepherd.” Id. at 16-17.


[28]   In support of his argument, Shepherd points to McSherry’s deposition

       testimony that Williams repeatedly stated “the trailer was crooked” following

       the accident,2 and reemphasizes McSherry’s “opinion that the lock was in the

       up position, but was not, due to the trailer being so crooked, was not actually

       hooked[.]” Appellant’s App., Vol. III at 42.


[29]   Notably, Shepherd’s own deposition testimony contradicts his theory that the

       trailer was crooked. Shepherd stated:


                [Question]: Do you know why [Carpenter] moved?


                [Shepherd]: He said he was crooked and realigned, but
                            everything inside lined up perfectly for him.


                [Question]: That does happen though right? Sometimes tractor
                            trailer drivers do get crooked and out of line and
                            sometimes they will move forward and readjust.


                [Shepherd]: He’s the only one I have ever had that has ever
                            come all the way against the dock and then pull up
                            like that. I have had some come about half way to



       2
         The Defendants argue Williams’ out-of-court statements are inadmissible hearsay. Hearsay is a statement,
       other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
       truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is generally inadmissible. Ind. Evidence
       Rule 802. However, on the facts presented, Williams’ statements would be admissible at a later trial as an
       excited utterance. Ind. Evidence Rule 803(2) (“A statement relating to a startling event or condition, made
       while the declarant was under the stress of excitement that it caused.”). Thus, the trial court appropriately
       considered the statements on summary judgment.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018                  Page 16 of 24
                                the dock and see they’re not straight and they would
                                pull up and realign, but not come up all the way
                                against the dock.


               [Question]: But he was clearly not locked in. Is that right?


               [Shepherd]: Apparently not.


               [Question]: Because he would not have been able to move
                           forward if he was locked in?


               [Shepherd]: Sure.


               [Question]: And if he was locked in there would have been a
                           green light for you?


               [Shepherd]: Yes.


       Appellant’s App., Vol. II at 222-23.


[30]   Even allowing for all reasonable inferences in Shepherd’s favor, as we must, we

       still cannot conclude Shepherd has demonstrated a genuine issue of material

       fact. As discussed above, Shepherd has failed to produce evidence that the

       dock lock was activated before Shepherd entered the trailer. Williams’ affidavit

       explains that he activated the dock lock after Shephard was approaching the

       trailer but that he was too late to prevent the trailer from pulling forward.

       Further evidence reveals the interior dock light was red as Shepherd entered the

       trailer and therefore, by definition, the dock lock could not have been activated.

       In the absence of such evidence, Shepherd has failed to demonstrate

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 17 of 24
       Carpenter’s crooked parking prevented the dock lock from holding the trailer in

       place. Therefore, the trial court properly granted summary judgment as to this

       issue.


                              3. Should Carpenter Have Pulled Forward?

[31]   Third, Shepherd argues that regardless of the color of the dock light, Carpenter

       should not have backed all the way up to the dock before attempting to pull

       forward from the dock to correct his alignment. Once again Shepherd

       designates McSherry’s testimony in support of this argument:


                [Question]: How often does it happen in a day that a truck
                            driver doesn’t get lined up evenly and has to sort of
                            move back out and move back in?


                [McSherry]: Actually, it’s pretty rare, but I don’t, in a day, I
                            don’t, we probably wouldn’t have one in a day at
                            that dock. It might be one a month, or one . . .


                [Question]: In that particular dock?


                [McSherry]: Yeah. Well, in those four dock doors.


                [Question]: All right, so a dozen times a year that happens?


                [McSherry]: I think that’d be an extreme, yeah.


                [Question]: Well, I don’t want to be extreme. I want to try to be
                            [sic] I understand it. I’m asking you to give me
                            your best judgement [sic], fourteen years of being



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 18 of 24
                         around this dock, and so what’s your best
                         judgment?


        [McSherry]: Maybe eight times a year.


        ***


        [Question]: Is it more common or less common for a driver to
                    see he is going in crooked, stop, and try to correct it
                    before he’s gotten all the way to the dock itself?


        [McSherry]: Oh, it’s very common to correct yourself.


        [Question]: So, if you see yourself going in a little bit
                    wackajawed and crooked, you’ll stop it before you
                    even get to the dock, straighten it out, and then go
                    back?


        [McSherry]: Yeah.


        [Question]: Should you be able to see whether or not you’re
                    going in crooked well before you ever get to the
                    dock?


        [McSherry]: Yeah.


        [Question]: And then, indeed if you go in crooked and get all
                    the way to the dock, and the dock workers go to
                    work doing the things that you’ve trained them to
                    do, they could put that locking arm up, and not
                    secure that trailer?


        [McSherry]: That’s right.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 19 of 24
       Appellant’s App., Vol. III at 58-59; 75-76.


[32]   It appears Shepherd’s argument is that, because efforts to realign trailers after

       they have backed all the way up to the dock only occur approximately eight

       times per year, it is foreseeable that dock workers could mistakenly enter

       crookedly-parked trailers before they are realigned. However, the evidence

       establishes the red and green light safety system is used to prevent exactly that.

       And, once again, because the uncontroverted evidence establishes the interior

       dock light was red at the time Shepherd entered the trailer, we conclude

       Shepherd has failed to demonstrate a genuine issue of material fact.


                          4. Could Carpenter See the Exterior Dock Light?

[33]   Fourth, Shepherd alleges Carpenter could not have seen whether the exterior

       dock light was green because of “his crooked parking[.]” Amended Br. of

       Appellants at 18. Shepherd again points to McSherry’s testimony:


               [Question]: Is there any way based on where he is in this cab
                           that he could possibly have seen Mr. Shepherd’s
                           forklift move into the trailer?


               [McSherry]: No.


               [Question]: Why is that?


               [McSherry]: The mirrors on the truck look down the side of the
                           trailer, and [Shepherd] was going into the center of
                           the trailer, and he wouldn’t have seen that. He was
                           so crooked, I question whether he could even see
                           the light on the wall of . . .

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 20 of 24
               [Question]: But, you don’t know one way or the other. Right?


               [McSherry]: I do not know.


       Appellant’s App., Vol. III at 82.


[34]   It appears that Shepherd intended for McSherry’s testimony to provide an

       opinion as a lay witness. Indiana Evidence Rule 701 provides:


               If the witness is not testifying as an expert, testimony in the form
               of an opinion is limited to one that is: (a) rationally based on the
               witness’s perception; and (b) helpful to a clear understanding of
               the witness’s testimony or to a determination of a fact in issue.


       An opinion under this rule is rationally based, for purposes of this rule, if a

       reasonable person normally could form the opinion from the perceived facts.

       Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 769 (Ind. Ct. App. 2003). An

       opinion is helpful, for purposes of the rule, if the testimony gives substance to

       facts, which were difficult to articulate. Id.


[35]   Here, McSherry did not provide an opinion as a lay witness; rather, McSherry

       simply “question[ed] whether [Carpenter] could even see the light on the

       wall[.]” Appellant’s App., Vol. III at 82. It is well established that “guesses,

       supposition and conjecture are not sufficient to create a genuine issue of

       material fact to defeat summary judgment.” Midwestern Indem. Co. v. Sys.

       Builders, Inc., 801 N.E.2d 661, 666 (Ind. Ct. App. 2004), trans. denied. Put

       simply, McSherry’s questioning of Carpenter’s line of vision is insufficient to

       create a genuine issue of material fact.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 21 of 24
                                 5. Was the Dock Lock Was Engaged?

[36]   For his fifth issue, Shepherd simply rehashes his argument regarding

       Carpenter’s crooked parking, alleging the dock lock could have been engaged

       without latching onto the trailer to prevent it from moving forward and

       Shepherd would have therefore had a green light. Although the record

       establishes the possibility of this scenario, the uncontroverted evidence reveals

       the dock lock was not engaged as Shepherd entered the trailer. As discussed

       above, the interior dock light was red and Williams “immediately activated the

       lock button to engage the dock lock; however, [Shepherd’s] forklift was already

       entering the trailer.” Appellant’s App., Vol. II at 74. Thus, the evidence

       demonstrates it was the trailer pulling forward, not the trailer’s alignment, that

       prevented the dock lock from actively engaging.


                         6. Could Carpenter Have Felt Shepherd’s Forklift?

[37]   Finally, Shepherd alleges Carpenter knew, or should have known, that he was

       operating his forklift in the trailer. While Shepherd’s deposition testimony

       conceded that Carpenter could not have seen him using the semi’s side mirrors,

       Shepherd nevertheless argues Carpenter would have “felt the weight of the fork

       lift . . . [t]he weight going onto the trailer.” Id. at 195.


[38]   First, as explained above, opinion testimony by lay witnesses is limited to

       opinions rationally based on the witness’s own personal observation,

       knowledge, and experience. Ind. Evid. R. 701(a); Ackles v. Hartford Underwriters

       Ins. Corp., 699 N.E.2d 740, 743 (Ind. Ct. App. 1998), trans. denied. There is no


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 22 of 24
       evidence Shepherd has ever driven a semi and there is similarly no evidence

       that Shepherd has ever been in the cab of a semi. Thus, Shepherd’s speculation

       as to what Carpenter would have or should have felt in the cab is insufficient to

       create a genuine issue of material fact. Midwestern Indem. Co., 801 N.E.2d at

       666.


[39]   In any event, Shepherd stated the trailer “went down a little” as his front wheels

       came into it, but that there was no “shaking or disturbance of the trailer at

       all[,]” and Shepherd had no idea if his entry had any effect on the trailer nearer

       the semi. Appellant’s App, Vol. II at 233. Moreover, the evidence establishes

       an almost simultaneous series of events where Shepherd drove onto the trailer

       just seconds before Carpenter pulled forward. On this evidence, no reasonable

       jury could conclude Carpenter should have known there was a forklift in the

       trailer—or could have known a forklift was in the trailer in time to prevent an

       accident such as this. Accordingly, Shepherd has again failed to demonstrate a

       genuine issue of material fact precluding summary judgment.



                                              Conclusion
[40]   The uncontroverted evidence demonstrates that Shepherd entered the trailer

       under a red light. For this and other reasons more thoroughly explained above,

       the Defendants are entitled to judgment as a matter of law and we therefore

       affirm the trial court’s grant of summary judgment.


[41]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 23 of 24
Baker, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018   Page 24 of 24
