                                                                              FILED
                                                                         May 06 2016, 9:06 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jason D. May                                              Pamela G. Schneeman
Law Office of Jason D. May, LLC                           Assistant Corporation Counsel
Indianapolis, Indiana                                     Office of Corporation Counsel
Samuel D. Krahulik                                        Indianapolis, Indiana
The Hastings Law Firm                                     Kevin C. Schiferl
Indianapolis, Indiana                                     Anthony W. Overholt
                                                          Alexander P. Will
                                                          Darren A. Craig
                                                          Frost Brown Todd, LLC
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Barbara Hill, individually and as                         May 6, 2016
guardian of Charles Hill,                                 Court of Appeals Case No.
incapacitated, and as next friend                         49A02-1509-CT-1288
of Alexandra Hill, a minor, and                           Appeal from the Marion Superior
Macey Hill, a minor, by her next                          Court
friend and mother, Tenise Hill-                           The Honorable James A. Joven,
Cornelius,                                                Judge
Appellant-Plaintiffs,                                     Trial Court Cause No.
                                                          49D13-1204-CT-16235
        v.

Erich E. Gephart, City of
Indianapolis, and Marion
County Sheriff’s Department,
Appellee-Defendants.



Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016                            Page 1 of 12
      Mathias, Judge.


[1]   Barbara Hill, individually and as guardian of Charles Hill (“Charles”),

      incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill

      (“Macey”), a minor, by her next friend and mother, Tenise Hill-Cornelius

      (collectively “the Hills”) filed a complaint in Marion Superior Court against

      Erich Gephart (“Deputy Gephart”), the City of Indianapolis, and the Marion

      County Sheriff’s Department (collectively “Defendants”) alleging that

      Defendants were negligent when a Marion County Sheriff jail transport vehicle

      driven by Deputy Gephart struck and severely injured Charles. Defendants

      moved for summary judgment, arguing that Deputy Gephart was not negligent

      and that Charles was contributorily negligent which was the proximate cause of

      his own injuries. The trial court granted Defendants’ motion for summary

      judgment. The Hills now appeal and raise two issues, which we consolidate and

      restate as whether the trial court erred in granting Defendants’ motion for

      summary judgment.


[2]   We reverse and remand for proceedings consistent with this opinion.

                                       Facts and Procedural History


[3]   On the evening of November 25, 2011, Charles and his daughter, Macey

      walked to Fox Hill Elementary School (“the school”) from their residence on

      Fox Hill Drive in Indianapolis, Indiana, so Macey could play on the school’s

      playground equipment.



      Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016    Page 2 of 12
[4]   Charles and Macey left the residence when it was still light outside. The school

      is about one block east of the Hills’ residence and takes about five minutes to

      walk there. To get to the playground, Charles and Macey walked along the east

      side of Fox Hill Drive1, on the north side (left side) of the street facing

      oncoming westbound traffic. The school was located on the same side of the

      street as their residence, so Charles and Macey did not have to cross the street.

[5]   While Macey played, Charles watched her and talked on his cell phone. As the

      sun went down, Charles and Macey decided to return home. They took the

      same route on the way back, this time walking again on the north side (right

      side) of Fox Hill Drive with their backs toward traffic. Charles and Macey

      decided to walk on the right side so they did not have to cross the street. Macey

      walked in front of Charles as he still talked on his phone.


[6]   At approximately 6:00 p.m., Deputy Gephart, jail transport driver for the

      Marion County Sheriff’s Department, began his shift. This was about the same

      time that Charles and Macey began walking home. Deputy Gephart’s job

      required him to drive around the jail transport vehicle to transport arrestees.

      Like many police cars, the transport vehicle is equipped with a cockpit laptop

      computer. After leaving his home, Deputy Gephart drove southbound on

      Hoover Road, stopped at the intersection’s stop sign, and turned right onto Fox




      1
        Fox Hill Drive is a two-lane road that runs from east to west. No sidewalks are along either side of the
      street.

      Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016                             Page 3 of 12
      Hill Drive, traveling westbound at approximately 40 m.p.h. The posted speed

      limit on Fox Hill Drive is 30 m.p.h.

[7]   As Deputy Gephart was driving around the 900 block of Fox Hill Drive, he

      heard a loud collision with the transport vehicle but did not see anything in the

      road. At the time, it was dark outside, and Deputy Gephart reported a glare

      reflecting off of his laptop. He immediately stopped the transport vehicle about

      fifty feet after the collision occurred and exited the vehicle to determine what

      had happened. Deputy Gephart observed damage to the passenger side

      windshield, mirror, and headlight.


[8]   At that same time, Deputy Gephart saw Macey run across the grass and noticed

      that she was crying. He heard her say, “Somebody hit my. . .” Appellant’s App.

      p. 199. However, Macey did not see, but only heard Deputy Gephart hit

      Charles because she was walking in front of him while Charles remained on the

      phone. When she turned around, she saw Charles lying in the grass north of the

      road. She also saw Deputy Gephart driving the transport vehicle but only “on

      the road surface.” Appellant’s App. p. 190.


[9]   Still unsure of what had happened, Deputy Gephart grabbed his flashlight and

      looked back to the east of where he was standing. He saw a man, later

      identified as Charles, lying face down on the ground in the grass and noticed




      Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016    Page 4 of 12
       that he was unresponsive, but still breathing.2 Deputy Gephart then observed a

       large gash on the top of Charles’s head. He immediately contacted his control

       operator and explained that he had hit someone with the transport vehicle.

       Deputy Gephart also requested an ambulance.

[10]   After running home, Macey notified her grandmother that Charles had been

       hit. The Hill family rushed to the accident scene where they saw Charles lying

       face down on the ground unconscious and bleeding. Charles was then

       transported to the hospital for treatment. He suffered numerous severe injuries

       that require future treatment and rehabilitation.


[11]   That same evening, Indianapolis Metropolitan Police Department (“IMPD”)

       officers began investigating the collision led by Sergeant Doug Heustis

       (“Sergeant Heustis”). Sergeant Heustis took photos of the van, Charles’s

       clothing, and the road. He also took measurements for purposes of accident

       reconstruction. After the investigation, Sergeant Heustis determined that

       Charles was “walking westbound at the edge of the westbound lane at the time

       of the crash” but “could not determine the exact location of []Hill at the time of

       impact.” Appellant’s App. p. 238. Sergeant Heustis concluded that “[t]he

       primary causes of this crash [were] a combination of the low light environment

       and the dark clothes being worn by the pedestrian.” Id.




       2
         Charles was wearing dark colored clothing at the time of the accident. One of his white shoes was found on
       the ground close to him when the Hills and paramedics arrived.

       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016                          Page 5 of 12
[12]   On December 16, 2011, the Hills filed a Tort Claims Notice with Defendants.

       The Hills then filed a complaint in Marion Superior Court against Defendants

       alleging negligence and negligent infliction of emotional distress on April 23,

       2012. After conducting discovery, Defendants filed a motion for summary

       judgment on March 30, 2015. The Hills responded with their opposition in

       response on May 28, 2015. Defendants then filed a reply brief in support for

       their motion for summary judgment and a motion to strike inadmissible

       evidence relied upon in opposition to motion for summary judgment on June

       11, 2015. On June 25, 2015, the Hills filed a request for judicial notice.


[13]   A hearing on Defendants’ motion for summary judgment was held on July 1,

       2015. On August 4, 2015, the trial court granted the Hills’s request for judicial

       notice. Three days later, the court dismissed the Hills’s complaint against

       Deputy Gephart and granted summary judgment in favor of the remaining

       Defendants. The Hills now appeal.

                                              Standard of Review


[14]   Our standard of review for summary judgment appeals is well settled:

               When reviewing a grant of summary judgment, our standard of
               review is the same as that of the trial court. Considering only
               those facts that the parties designated to the trial court, we must
               determine whether there is a genuine issue as to any material fact
               and whether the moving party is entitled to judgment as a matter
               of law. In answering these questions, the reviewing court
               construes all factual inferences in the non-moving party’s favor
               and resolves all doubts as to the existence of a material issue
               against the moving party. The moving party bears the burden of

       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016       Page 6 of 12
               making a prima facie showing that there are no genuine issues of
               material fact and that the movant is entitled to judgment as a
               matter of law; and once the movant satisfies the burden, the
               burden then shifts to the non-moving party to designate and
               produce evidence of facts showing the existence of a genuine
               issue of material fact.


               The party appealing a summary judgment decision has the
               burden of persuading this court that the grant or denial of
               summary judgment was erroneous. Where the facts are
               undisputed and the issue presented is a pure question of law, we
               review the matter de novo.


               Importantly for this case, summary judgment is rarely
               appropriate in negligence actions, since negligence cases are
               particularly fact sensitive and are governed by a standard of the
               objective reasonable person. This standard is best applied by a
               jury after hearing all of the evidence.


       M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.

       denied (citations and internal quotations omitted).

                                                    Discussion


[15]   The Hills argue that the trial court erred in granting Defendants’ motion for

       summary judgment because Defendants’ affirmative defense that Charles was

       contributorily negligent should be decided by a trier of fact, not as a matter of

       law. The Hills concede that Charles violated Indiana Code section 9-21-17-14

       when he walked on the right hand side of Fox Hill Drive. Indiana Code 9-21-

       17-14 provides:



       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016      Page 7 of 12
               If neither a sidewalk nor a shoulder is available, a pedestrian
               walking along and upon a highway shall walk as near as
               practicable to an outside edge to the roadway. If the roadway is
               two-way, the pedestrian shall walk only on the left side of the
               roadway.


[16]   When a tort claim is brought against a governmental entity, such as the City of

       Indianapolis, the common law defense of contributory negligence remains

       applicable under Indiana Code section 34-51-2-2. Whitmore v. South Bend Public

       Transp. Corp., 7 N.E.3d 994, 997 (Ind. Ct. App. 2014). Thus, if a plaintiff is

       negligent to even a small degree and that negligence proximately contributes to

       his claimed damages, contributory negligence will operate as a complete bar to

       his action. Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006).


[17]   A plaintiff is contributorily negligent when his conduct falls below the standard

       to which he should conform for his own protection and safety. Whitmore, 7

       N.E.3d at 997 (citing Funston, 849 N.E.2d at 598). Negligence depends upon the

       lack of reasonable care that an ordinary person would exercise in like or similar

       circumstances. Id. Said differently, contributory negligence is the failure of a

       person to exercise for his own safety that degree of care and caution which an

       ordinary, reasonable, and prudent person in a similar situation would exercise.

       Id. Generally, contributory negligence is a question of fact for the jury to decide.

       Id. It will only be a question of law appropriate for summary judgment if the facts

       are undisputed and only a single inference can be drawn therefrom. Id. at 599.


[18]   In its order, the trial court cited to Larkins v. Kohlmeyer for the proposition that it

       must be impossible to comply with a statute for the violation to be excused. 98
       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016       Page 8 of 12
       N.E.2d 896, 900 (Ind. 1951). On the basis that it was not impossible for Charles

       to comply with the statute by instead walking along the left hand side of the

       road, the trial court granted summary judgment in favor of Defendants.


[19]   However, our supreme court in Davison v. Williams established that proof of the

       violation of a safety regulation creates a rebuttable presumption of negligence.

       242 N.E.2d 101, 105 (Ind. 1968). Our supreme court concluded, “As for the

       question of what will constitute proof sufficient to rebut the presumption of

       negligence raised by violation of safety regulation, we believe the best test to

       follow is:


               Where a person has disobeyed a statute he may excuse or justify
               the violation in a civil action for negligence by sustaining the
               burden of showing that he did what might be reasonably
               expected by a person of ordinary prudence, acting under similar
               circumstances, who desired to comply with the law.


       Id.


[20]   While Davison involved the duty of a driver who violated a motor vehicle

       statute, we see no reason not to extend this holding to motor vehicle statues that

       impose duties on pedestrians as well. The rights and duties of pedestrians and

       motorists to use highways are reciprocal and should be exercised by each so as

       not to injure the other, and motorist owes pedestrians walking along a highway

       duty to exercise reasonable care to avoid injury. American Carloading Corp. v.

       Gary Trust & Sav. Bank, 25 N.E.2d 777, 781 (Ind. 1940).




       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016     Page 9 of 12
[21]   The Hills argue that Charles’s violation was justifiably reasonable because by

       remaining on the right side of Fox Hill Drive, Charles and Macey did not have to

       cross the busy street. This was arguably a safer option for the father-daughter duo

       because no cross-walk existed. At his deposition, Charles also testified that the

       left side of the road did not have a sidewalk and in some places no shoulder to

       walk along because it was blocked by vegetation. Further, the Hills submitted an

       affidavit from an expert investigator to establish the speed limit and that

       vegetation was present along Fox Hill Drive. Defendants filed a motion to strike

       the affidavit as inadmissible, but the court never issued an order on the motion.


[22]   Because the purpose of Indiana Code section 9-21-17-14 is to promote safety, it is

       counterintuitive to bar the Hills’s claim without allowing Charles to explain why

       he was walking on the right side instead of the left side of the road. It is up to the

       jury to determine whether that act was reasonable or if Charles contributed to his

       injuries. For all of these reasons, a genuine issue of material fact exists as to

       whether Charles was contributorily negligent, and the trial court erred by

       disposing the Hills’ claim on summary judgment. We therefore reverse and

       remand with instructions for the trial court to hold a jury trial on the matter.

[23]   Reversed and remanded for proceedings consistent with this opinion.


       Kirsch, J., concurs.

       Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016      Page 10 of 12
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Barbara Hill, individually and as                         Court of Appeals Case No.
       guardian of Charles Hill,                                 49A02-1509-CT-1288
       incapacitated, and as next friend
       of Alexandra Hill, a minor, and
       Macey Hill, a minor, by her next
       friend and mother, Tenise Hill-
       Cornelius,
       Appellant-Plaintiffs,

               v.

       Erich E. Gephart, City of
       Indianapolis, and Marion
       County Sheriff’s Department,
       Appellee-Defendants.



       Brown, Judge, dissenting.

[24]   I respectfully dissent from the majority’s conclusion that a genuine issue of

       material fact exists as to whether Charles was contributorily negligent and its

       decision to reverse and remand on the trial court’s entry of summary judgment

       in favor of the Defendants. Charles walked along Fox Hill Drive in a manner

       which violated Ind. Code § 9-21-17-14, and there is nothing in the designated

       evidence to demonstrate he “desired to comply with the law,” which is required

       in order to rebut the presumption of negligence. See Davison v. Williams, 251

       Ind. 448, 457, 242 N.E.2d 101, 105 (1968). Indeed, the designated evidence


       Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016                Page 11 of 12
shows that Charles, in failing to comply with the statute enacted for his safety,

did not contravene the statute in a manner which might reasonably be expected

of a person of ordinary prudence, but instead walked along the wrong side of

the road clad in dark clothing and talking on his cell phone. Under these

circumstances, I cannot say that the Hills have rebutted the presumption of

negligence, and accordingly I would affirm the trial court’s grant of summary

judgment in favor of the Defendants.




Court of Appeals of Indiana | Opinion 49A02-1509-CT-1288 | May 6, 2016   Page 12 of 12
