                                                   Mar 13 2014, 7:15 am
FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEES:

AMY R. WHEATLEY                                BRYAN J. DILLON
NICHOLAS F. STEIN                              F. LARKIN FORE
Law Office of Nicholas F. Stein                SARAH M. FORE
New Albany, Indiana                            Fore Miller & Schwartz
                                               Louisville, Kentucky


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRITTNEY L. ROMERO,                            )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )      No. 72A05-1308-CT-471
                                               )
TEDDY BRADY and                                )
ADVANTAGE TANK LINES, LLC,                     )
                                               )
       Appellees-Defendants,                   )


                       APPEAL FROM THE SCOTT CIRCUIT COURT
                           The Honorable Roger L. Duvall, Judge
                               Cause No. 72C01-1104-CT-5


                                     March 13, 2014


                               OPINION - FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Brittney Romero appeals the grant of summary judgment in favor of Teddy Brady

and Advantage Tank Lines, LLC., (“Advantage”) (collectively, “the Appellees”). We

reverse.

                                           Issue

       Romero raises one issue, which we restate as whether the trial court properly

granted summary judgment in favor of the Appellees.

                                           Facts

       On October 21, 2010, Romero was driving her car southbound on I-65 in Scott

County.    Romero was traveling in the left lane, and Brady, who is employed by

Advantage, was driving a tractor-trailer in the right lane behind Jonathan Stigler, who

was driving a box truck. After Romero passed Brady, Stigler swerved into the left lane,

causing Romero to drive off the left shoulder, lose control of her car, and drive

perpendicularly into the right lane, in front of Brady’s truck. Brady’s truck collided with

Romero’s car, and she suffered extensive injuries as a result of the collision.

       Romero filed an amended complaint alleging that Stigler, Brady, and Advantage

were negligent. Romero settled with Stigler, and she dismissed her claim against him.

The Appellees filed a motion for summary judgment, arguing that Brady did not owe

Romero a duty to maintain a certain distance behind Stigler’s truck. The Appellees also

argued that, even if Brady was following Stigler’s truck too closely, “there is no dispute

that Brady had no part in causing Romero’s vehicle to leave the roadway or to travel into

his lane of travel.” Id. at 58. Romero responded by arguing that Brady owed her a duty

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of reasonable care. The trial court granted the Appellees’ motion for summary judgment

because Brady did not owe Romero a duty, Brady did not violate any duty owed to

Romero, and “[t]he link in causation is simply missing as between Brady’s following

distance to Stigler and the impact of Brady’s vehicle with Romero when her vehicle

entered his lane of travel.” Id. at 31. Romero now appeals.

                                          Analysis

       Romero argues that the trial court erred in granting of summary judgment in favor

of the Appellees. “We review an appeal of a trial court’s ruling on a motion for summary

judgment using the same standard applicable to the trial court.” Perdue v. Gargano, 964

N.E.2d 825, 831 (Ind. 2012). “Therefore, summary judgment is appropriate only if the

designated evidence reveals ‘no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’” Id. (quoting Ind. Trial Rule 56(C)).

Our review of summary judgment is limited to evidence designated to the trial court. Id.

(citing T.R. 56(H)).    All facts and reasonable inferences drawn from the evidence

designated by the parties is construed in a light most favorable to the non-moving party,

and we do not defer to the trial court’s legal determinations. Id.

       “‘The purpose of summary judgment is to terminate litigation about which there

can be no factual dispute and which may be determined as a matter of law.’” Bushong v.

Williamson, 790 N.E.2d 467, 474 (Ind. 2003) (citation omitted). Once the moving party

has sustained its burden of proving the absence of a genuine issue of material fact and the

appropriateness of judgment as a matter of law, the opposing party must designate

specific facts establishing a genuine issue for trial. Id. A factual issue is material for the

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purposes of Trial Rule 56(C) if it bears on the ultimate resolution of a relevant issue, and

a factual issue is genuine if it is not capable of being conclusively foreclosed by reference

to undisputed facts. Id. “As a result, despite conflicting facts and inferences on some

elements of a claim, summary judgment may be proper where there is no dispute or

conflict regarding a fact that is dispositive of the claim.” Id. “If the opposing party fails

to meet its responsive burden, the court shall render summary judgment.” Id.

       The tort of negligence has three elements: (1) a duty owed by the defendant to the

plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from the

defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). “Summary

judgment is therefore appropriate when the undisputed material evidence negates one

element of a claim.” Id.

       Romero’s theory of liability rests on the notion that Brady was traveling too

closely behind Stigler. She contends that, had Brady been 400 feet or more behind

Stigler, she would not have crossed Brady’s path when she drove into his lane. She also

argues that, by following Stigler too closely, Brady did not allow himself enough time to

react and avoid the hazard.

       On appeal, Romero argues that the trial court erred in concluding that Brady did

not owe her a duty of care. In analyzing this issue, the parties use the three-part test set

out in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), which focuses on the relationship

between the parties, the foreseeability of harm to the victim, and public policy

considerations. As our supreme court has explained, however, “the three-part balancing

test articulated in Webb is a useful tool in determining whether a duty exists, but only in

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those instances where the element of duty has not already been declared or otherwise

articulated.” Northern Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003).

For example, there is no need to apply Webb to determine what duty a business owner

owes to its invitees or school authorities owe their students because these duties are well-

established. Id.

        Like the duty owed by business owners to invitees and school authorities to

students, the duty owed by motorists to fellow motorists is well-established.                         “All

operators of motor vehicles have a general duty to use ordinary care to avoid injuries to

other motorists.”1 Wilkerson v. Harvey, 814 N.E.2d 686, 693 (Ind. Ct. App. 2004); see

also Cole v. Gohmann, 727 N.E.2d 1111, 1115 (Ind. Ct. App. 2000) (“A motorist has a

duty to use due care to avoid a collision and to maintain his automobile under reasonable

control.”); Allied Fid. Ins. Co. v. Lamb, 361 N.E.2d 174, 180 (Ind. Ct. App. 1977) (“This

State imposes a general duty upon all operators of motor vehicles to use ordinary care to

avoid injuries to other motorists.”). Because it is well-established that Brady had a duty

to use ordinary care to avoid injuring other motorists, including Romero, the three-part

Webb analysis is unnecessary.2 Cf. Key v. Hamilton, 963 N.E.2d 573, 584 (Ind. Ct. App.

2012) (analyzing the three factors articulated in Webb and holding that a motorist
1
   Both parties suggest that the drivers of automobiles owe a duty to others lawfully using the public
streets and highways. See Luther v. State, 177 Ind. 619, 623, 98 N.E. 640, 641 (1912). To the extent the
Appellees suggest that, because Romero was operating her car unlawfully when she drove into Brady’s
lane, Brady did not owe Romero a duty of care, we disagree. We believe that one’s purportedly unlawful
use of a public street is more appropriately analyzed in terms of breach and/or comparative fault.
2
  It is also well-settled that “a motorist must maintain a proper lookout while operating a motor vehicle as
a reasonably prudent person would do in the same or similar circumstances.” Cole v. Gohmann, 727
N.E.2d 1111, 1115 (Ind. Ct. App. 2000). Romero’s claim does not appear to be based on Brady’s failure
to keep a proper lookout.


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signaling on another driver owed a duty to a third-party motorist who collided with the

signaled driver), trans. denied.

       To the extent the Appellees frame the issue as whether Brady owed Romero a duty

not to follow Stigler too closely, we believe that description of the duty owed by Brady to

Romero is too narrowly drawn. As our supreme court has explained in the context of a

school’s duty to its students:

              An approach that focuses on rearticulating that duty based
              upon a given set of facts is misplaced in our view because to
              do so presupposes that an issue which is thought to be settled
              must be revisited each time a party frames the duty issue a
              little differently. Rather, because a school’s duty to its
              students already has been established, the focus shifts to
              whether a given set of facts represents a breach of that duty.

Mangold ex rel. Mangold v. Indiana Dep’t of Natural Res., 756 N.E.2d 970, 974-75 (Ind.

2001) (footnote omitted). Similarly, it is well-established that motorists have a duty to

use due care to avoid collisions, and whether a motorist was following another motorist

too closely goes to the issue of breach.

       Although we conclude that Brady owed Romero a duty, if the Appellees

established that the element of breach or causation was clearly absent, summary

judgment would still be appropriate. See Pfenning v. Lineman, 947 N.E.2d 392, 403

(Ind. 2011) (observing that where there are no genuine issues of material fact and any one




                                            6
of the elements of negligence is clearly absent, summary judgment is appropriate).

Romero contends that there are genuine issues of material fact regarding:3

                1.     Whether Teddy Brady was following Jonathan
                Stigler’s box truck at a distance of less than 200 feet to which
                he testified or a distance of 40 feet as opined by expert Jay
                Nogan;

                2.     Whether Jonathan Stigler suddenly changed lanes and
                forced Brittney Romero off the roadway causing her to lose
                control of her vehicle.

Appellant’s Br. p. 14. We disagree that these designated issues of fact present genuine

issues of material fact for trial.

        First, for the proposition that Brady was traveling forty feet behind Stigler,

Romero cites the deposition testimony of her expert, Jay Nogan. Although Romero

designated Nogan’s report4 in response to the Appellees’ motion for summary judgment,

she did not designate his deposition. In fact, in her response to the Appellee’s motion for

summary judgment, Romero states that “Brady was following 200 feet behind” Stigler

and that Brady was following Stigler’s truck “at a distance of 200 feet.” App. pp. 124,

125. “No judgment rendered on the motion shall be reversed on the ground that there is a

genuine issue of material fact unless the material fact and the evidence relevant thereto

shall have been specifically designated to the trial court.” Indiana Trial Rule 56(H); see

also Perdue, 964 N.E.2d at 831 (“Appellate review of summary judgment is limited to


3
   Although Romero asserts there are “numerous genuine issues of material fact” including, but not
limited to, the two she specifically identifies, we decline to search the record for other factual disputes
that would preclude the entry of summary judgment. Appellant’s Br. p. 14.
4
  In this report, Nogan concluded that Brady “must have been following Stigler at a distance less than
200 feet . . . .” App. p. 230.
                                                    7
evidence designated to the trial court.”). Because Nogan’s deposition testimony was not

properly designated evidence, it is not a basis for reversing the trial court’s grant of

summary judgment.

       Second, whether Stigler suddenly changed lanes and forced Romero off the

roadway are not material questions of fact because they do not bear on the ultimate

resolution of a relevant issue. See Bushong, 790 N.E.2d at 474. Regardless of why

Romero drove off the road, there is no allegation that Brady’s actions caused Romero to

swerve, lose control of her car, and drive into his lane. Thus, even if Stigler did suddenly

change lanes and force Romero off the roadway, Romero has failed to show how that

conduct impacts Brady’s potential liability. This is not a genuine issue of material fact

that precludes the entry of summary judgment.

       Romero also asserts that Brady breached the duty he owed to her by failing to give

himself adequate distance to stop in time to avoid colliding with her car. “Whether a

particular act or omission is a breach of duty is generally a question of fact for the jury.”

Sharp, 790 N.E.2d at 466. “It can be a question of law where the facts are undisputed and

only a single inference can be drawn from those facts.” Without assessing Romero’s

likelihood of success at trial, we conclude that the Appellees, as the moving party, did not

specifically address the issue of breach in their motion for summary judgment and have

not established that only a single inference can be drawn from the facts. The issue of

breach remains a question for the trier of fact.

       Further, Romero contends that Brady caused the collision that injured her. In their

motion for summary judgment, the Appellees argued that Brady following Stigler did not

                                              8
cause the collision and that Brady’s involvement in the accident was simply a matter of

timing. In response Romero argued, “Because he was following Stigler’s box truck too

closely, Brady did not allow himself enough time to react and was unable to stop in time

to avoid that hazard.” App. p. 127. An act or omission is the proximate cause of an

injury if the ultimate injury is one that was foreseen, or reasonably should have been

foreseen, as the natural and probable consequence of the act or omission. Rhodes v.

Wright, 805 N.E.2d 382, 388 (Ind. 2004). “The question of proximate cause is one

usually left to the jury.” Id. Whether the collision between Brady and Romero was

foreseen or reasonably foreseeable as a natural consequence of Brady following Stigler at

the distance he was is a question for the trier of fact. Because the Appellees have not

negated one of the elements of negligence, the entry of summary judgment was not

appropriate.

                                      Conclusion

      Because Brady owed Romero a duty of care and the questions of breach and

proximate cause are not undisputed, the entry of summary judgment in favor of the

Appellees was improper. We reverse.

      Reversed.

ROBB, J., and BROWN, J., concur.




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