MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                  Jun 26 2015, 7:58 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS
Julie J. Havenith
Travelers Staff Counsel Office
Merrillville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

White County Sheriff John                                 June 26, 2015
Roberts, White County                                     Court of Appeals Case No.
Commissioners, John Heimlick,                             37A03-1501-CT-33
Ronald Schmierer, and                                     Appeal from the Jasper Circuit
Steve Burton,                                             Court.
                                                          The Honorable John D. Potter,
Appellants-Defendants,                                    Judge.
                                                          Cause No. 37C01-0906-CT-291
        v.

Chris and Connie Luthi,
Appellees-Plaintiffs




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015          Page 1 of 9
[1]   White Country Sheriff John Roberts and White County Commissioners John

      Heimlick, Ronald Schmierer, and Steve Burton (collectively, the appellants)

      appeal the trial court’s denial of summary judgment regarding Chris and

      Connie Luthi’s negligence claim. The appellants argue that, as the Luthis failed

      to file a response to their summary judgment motion, there were no genuine

      issues of material fact. They also maintain that the Luthis failed to prove that

      the Sheriff breached a duty or that their damages were caused by the Sheriff’s

      negligence. Finding that the appellants’ motion for summary judgment failed

      to establish that there were no issues of material fact regarding Sheriff Robert’s

      negligence, we affirm and remand for further proceedings.


                                                       Facts
[2]   The facts as supplied by the appellants in their motion for summary judgment

      are as follows:1

              Plaintiff Chris Luthi was arrested on Friday, June 8, 2007 after he was
              stopped by the Indiana State Police. Plaintiff had started drinking
              vodka at his office at 8:00 a.m. that day, left his office at
              approximately 10:30 a.m. and drove to a liquor store approximately 16
              miles away. When Plaintiff arrived at the liquor store, they refused to
              sell him anything. Plaintiff came out of the liquor store and a person
              who had called 911 was parked behind him. The 911 caller told
              Plaintiff not to drive and Plaintiff believes he told him to “kind of get
              screwed.” Plaintiff was then pulled over approximately 5 miles later by



      1
       We use the facts as supplied by the appellants in their motion for summary judgment because—as will be
      discussed below—the Luthis failed to file response to the appellants’ summary judgment motion. Therefore,
      we accept the appellants’ designated materials as true. See Templeton v. City of Hammond, 679 N.E.2d 1368,
      1371 (Ind. Ct. App. 1997) (finding that when the non-movant does not come forward with evidence in
      opposition to the moving party’s materials, we will accept the moving party’s designated materials as true).

      Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015                Page 2 of 9
        the Indiana State Police. After the State Police pulled him over, they
        asked him if he would take a Breathalyzer and Plaintiff refused.
        Plaintiff was then taken by the State Police to the hospital where a
        blood draw revealed a blood alcohol content of .49. After two hours,
        he was released from the hospital and taken to the White County Jail.
        On June 8, 2007, Plaintiff claims that he started having trouble with
        balance and walking. However, Plaintiff did not try to get anyone’s
        attention at the jail other than to ask to make a phone call. Plaintiff
        testified that he did not tell anyone at the jail that he was having these
        problems because he believed it was from the alcohol. Other than
        problems with balance and walking, Plaintiff was not having any other
        problems other than not thinking clearly, which he also attributed to
        the alcohol.
        Plaintiff slept approximately 8 hours that night and was then moved to
        an individual cell late or [sic] evening the next day, Saturday June 9,
        2007. He was woken up when he was brought breakfast at 5:00 a.m.
        Plaintiff ate his breakfast and did not tell the person who brought him
        his breakfast that he was having a problem walking, with his balance,
        with thinking or any physical problems. Between 5:00 a.m. and lunch
        at noon, he did not try to get anybody’s attention in the jail because he
        was sleeping. After lunch, someone came and took Plaintiff to an
        individual cell, and Plaintiff testifies that he told the person he had a
        problem and it was not just alcohol. Plaintiff states that he told the
        person that he could not walk or stand up. Plaintiff did not tell the
        person that he could not feel his left leg. Plaintiff then asked the
        person for books and told him he wanted to make a phone call, to
        which the person responded that he would be back and allow him to
        do that. Plaintiff cannot recall saying anything else to this person.
        Plaintiff did not ask that person for medical assistance. Plaintiff states
        that the person then left and came back a couple of hours later with the
        books. When the person returned with the books, he told Plaintiff that
        he could make a phone call. Plaintiff did not tell the person anything
        or say anything to him about his problem when he returned with the
        books.
        Plaintiff then went approximately 40 feet to [sic] from his cell to the
        phone, without help from anyone. Plaintiff claims that he was holding
        onto the walls but was not crawling on the floor as he went to the
        phone. Plaintiff claims that he fell halfway to the phone but managed
        to get back up on his own. Plaintiff believes that a female working at a

Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015   Page 3 of 9
        desk saw him fall and indicated to him that his wife had already called.
        Plaintiff testified that he “thanked her for letting me struggle all that
        way before she told me that, so I could struggle all the way back.” He
        indicated to her that she could have told him that before he went all
        the way to the phone and fell, but did not ask the person for medical
        assistance or tell her he was having any problems. Plaintiff did not
        make a phone call based on his belief that his wife knew where he was.
        Plaintiff made his way back to his cell on his own the same way he
        had gone to the phone, by holding onto the wall and walking along.
        Plaintiff states that when he returned to his cell, approximately 6:00
        p.m. on June 9, 2007, he [sic] the jailer that let him into his cell that he
        was “just falling down.” He told the jailer [sic] was that there was
        something wrong because he could not stand up or walk and it was a
        struggle to get anywhere to do anything, and that he had no balance.
        Plaintiff did not tell the jailer that he was having numbness or that he
        could not feel his leg. The jailer did not have to help him into his cell,
        and Plaintiff made it in the cell. Prior to that, Plaintiff had eaten
        dinner and drank an 8-ounce cup of juice or punch. After he returned
        to his cell, Plaintiff did not try to get anyone’s attention on June 9,
        2007. Plaintiff slept the night of June 9, 2007 and was sleeping when
        the person came in at 5:00 a.m. the next morning and woke him up
        with breakfast.
        Plaintiff did not talk to the person that brought him his breakfast.
        After breakfast on June 10, 2007, Plaintiff read for a while and then his
        wife bailed him out at approximately 11:00 a.m. Plaintiff read an
        entire book between the time the jailer brought him books on June 9
        and June 10.
        Plaintiff claims that he told a young guy who came to his cell to have
        him change clothes at approximately 9:00 a.m. on June 10 that he had
        no balance and could not walk. Plaintiff was moved back to the
        “drunk tank” and walked there unassisted by “groping the walls.”
        Plaintiff was able to put his own clothes on himself.
        At some point, Plaintiff was brought a wheelchair and taken to be
        fingerprinted, but did not tell any of the people involved in
        fingerprinting him that he was having any problems. Plaintiff did not
        need any assistance getting into the wheelchair. Plaintiff was then able
        to fill out forms that were given to him.



Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015     Page 4 of 9
              Plaintiff claims that when he was released from the cell, the door was
              opened and he was helped onto a gurney and taken out where his wife
              and friends helped him to the car. He then claims he was taken
              immediately to the hospital from the jail.
      Appellants’ App. p. 21-26 (internal citations removed).


[3]   Following these events, on June 5, 2009, the Luthis filed their complaint,

      alleging that—due to the appellants’ negligence in failing to provide adequate

      supervision and medical care—Chris Luthi suffered permanent damages when

      he suffered a stroke while incarcerated. On September 22, 2014, the appellants

      filed their motion for summary judgment. The Luthis failed to file a response to

      the appellants’ motion or to timely file a request for more time to file.


[4]   The trial court held a hearing on the summary judgment motion on November

      17, 2014. That same day, the trial court issued an order granting the appellants’

      motion for summary judgment as to the White County Commissioners, but

      denying the appellants’ request for summary judgment as to Sheriff Roberts.

      The appellants’ motion for an interlocutory appeal was granted on November

      14, 2014.


                                   Discussion and Decision
                                      I. Standard of Review
      The appellants argue that the trial court erred when it denied their motion for

      summary judgment as to Sheriff Roberts. They argue that, as the Luthis failed

      to file a response to their motion for summary judgment, there are no genuine

      issues of material fact remaining. At the outset, we note that the Luthis have

      Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015   Page 5 of 9
      not filed an appellee’s brief. In such a situation, we do not undertake the

      burden of developing arguments for the appellee. Hill v. Ramey, 744 N.E.2d

      509, 511 (Ind. Ct. App. 2001). We apply a less stringent standard of review

      with respect to showings of reversible error, and we may reverse the lower court

      if the appellant can establish prima facie error. Id. Prima facie, in this context,

      is defined as “at first sight, on first appearance, or on the face of it.” Id.


[5]   In addition, when we review the grant or denial of a summary judgment

      motion, we apply the same standard as the trial court. Kroger Co. v. Plonski, 930

      N.E.2d 1, 4-5 (Ind. 2010). Summary judgment is appropriate only where the

      evidence shows that no genuine issue of material fact exists and the moving

      party is entitled to judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All

      facts and reasonable inferences drawn from those facts are construed in favor of

      the non-moving party, and all doubts concerning the existence of a material

      issue must be resolved against the non-moving party. Id.


[6]   When reviewing summary judgment rulings, we may consider only those

      portions of the pleadings, depositions, answers to interrogatories, admissions,

      matters of judicial notice, and any other matters designated to the trial court by

      the moving party for purposes of the motion for summary judgment. Rosi v.

      Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). The party moving for

      summary judgment bears the burden of making a prima facie case showing that

      there are no genuine issues of material fact and that the movant is entitled to

      judgment as a matter of law. Hermann v. Yater, 631 N.E.2d 511, 513 (Ind. Ct.

      App. 1994). Once the movant satisfies this burden, the burden shifts to the non-

      Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015   Page 6 of 9
      moving party to produce specifically designated facts showing the existence of a

      genuine issue. Id. Summary judgment is rarely appropriate in negligence cases.

      Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).


                             II. Summary Judgment Motion
[7]   The appellants argue that the Luthis failed to properly designate material in

      opposition to their motion for summary judgment pursuant to Indiana Trial

      Rule 56(C). Therefore, they contend that there are no genuine issues of

      material fact, and that the Luthis have failed to carry their burden of proof

      regarding breach of duty and causation.


[8]   This Court encountered a similar issue in Templeton v. City of Hammond, 679

      N.E.2d, 1368, 1371 (Ind. Ct. App. 1997). In that case, the appellant—who

      alleged that the City of Hammond had been negligent in failing to fix a

      dangerous defect in the city sidewalk—had failed to file a response to the city’s

      motion for summary judgment. We noted that Trial Rule 56 requires “that the

      non-movant specifically designate each issue of material fact the non-movant

      alleges precludes the entry of summary judgment. A non-movant may not

      simply rest upon the allegations in his pleadings.” Id. (internal citations

      removed). Yet, we continued on to explain the matter further:

              However, the amendments to Trial Rule 56 creating the requirement
              that material issues of fact and supporting evidence in opposition to
              summary judgment be designated did not alter the structural burden of
              summary judgment. Leons v. Bloemker, 649 N.E.2d 1041, 1044 (Ind.
              Ct. App. 1995). The party moving for summary judgment still bears
              the burden of showing that there are no genuine issues of material fact

      Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015   Page 7 of 9
               and that the movant is entitled to judgment as a matter of law. Id. If
               the movant fails to make this prima facie showing, then entry of
               summary judgment in favor of the movant is precluded, regardless of
               whether the non-movant did or did not designate facts and evidence in
               response to the motion for summary judgment. Id. (emphasis
               provided). Hence, because Templeton did not come forward with
               specific evidence in opposition to the City's materials, we accept the
               City's designated materials as true. However, the facts designated by
               the City do not support the entry of summary judgment in the City's
               favor.
       Id. Therefore, in the instant case, we also accept the appellants’ designated

       materials as true and proceed to determine if there exists any genuine issue of

       material fact.


[9]    The appellants argue that there are no genuine issues of material fact, and point

       us to Halterman v. Adams County Board of Commissioners, 991 N.E.2d 987 (Ind.

       Ct. App. 2013). In Halterman, Halterman filed suit against the Adams County

       Sheriff, alleging that the Sheriff’s negligence had caused an abscess to develop a

       Methicillin-resistant staphylococcus aureus (MRSA) infection. Id. at 989. A

       panel of this Court found that summary judgment was appropriate in this cause,

       because the Sheriff had provided medical evidence in his summary judgment

       motion that successfully negated the element of causation. See id. at 991.

       (“Summary judgment is appropriate in a negligence action where the defendant

       demonstrates that the undisputed material facts negate at least one element of

       plaintiff’s claim.”) (internal quotations removed).


[10]   This case is clearly distinguishable from Halterman. Here, the appellants

       provided no evidence to negate any of the prima facie elements of Luthi’s

       claim. They have entirely failed to show that he cannot prove one of these
       Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015   Page 8 of 9
       elements. Rather, the appellants assert that he did not prove his negligence

       claim. Luthi is not required to prove his negligence claim at the summary

       judgment stage. This argument is an improper attempt to shift the burden of

       summary judgment onto the nonmovant. As we stated in Templeton, whether

       or not the nonmovant files a response to the moving party’s motion for

       summary judgment, the moving party still bears the burden of showing that

       there are no genuine issues of material fact. 679 N.E.2d at 1371.


[11]   Here, there are clearly genuine issues of material fact to be resolved by the

       finder of fact. Even when we use the facts as proffered by the appellants in their

       summary judgment motion, our analysis shows that summary judgment would

       be inappropriate. It is clear that certain issues of material fact still need to be

       determined, for example, whether Chris Luthi suffered a stroke while in the

       care of Sheriff Roberts or whether Luthi told individuals that he was suffering

       from a medical condition while in the Sheriff’s care. These issues of material

       fact are for the fact finder to determine. Therefore, we do not find that the trial

       court erred in denying the appellants’ motion for summary judgment as to

       Sheriff Roberts.


[12]   The judgment of the trial court is affirmed, and the case is remanded for further

       proceedings.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1501-CT-33 | June 26, 2015   Page 9 of 9
