MEMORANDUM DECISION
                                                                        Jan 14 2016, 5:54 am
Pursuant to Ind. Appellate Rule 65(D),
this 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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEES
David R. Neal                                            Gregory F. Zoeller
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Aaron T. Craft
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David R. Neal,                                           January 14, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         52A02-1410-SC-735
        v.                                               Appeal from the Miami Superior
                                                         Court 1
Mark Sevier and the Indiana                              The Honorable J. David Grund,
Department of Correction,                                Judge
Appellees-Defendants                                     Trial Court Cause No.
                                                         52D01-1312-SC-1215



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A02-1410-SC-735 | January 14, 2016         Page 1 of 6
                                               Case Summary
[1]   Pro se Appellant-Plaintiff David R. Neal (“Neal”) appeals a judgment entered

      in favor of Appellee-Defendant Indiana Department of Correction (“the DOC”)

      upon Neal’s negligence claim.1 He presents a single consolidated and restated

      issue: whether the small claims judgment is clearly erroneous. We affirm.



                               Facts and Procedural History
[2]   On June 13, 2013, Neal was a DOC inmate assigned to the Miami Correctional

      Facility. He slipped and fell in a puddle of water on the cafeteria floor,

      sustaining injuries that required pain medication and physical therapy.


[3]   On December 9, 2013, Neal filed a small claims complaint, asserting that the

      DOC and the Miami Correctional Facility Superintendent, Mark Sevier, had

      negligently caused him injury by failing to contain water from a leaky roof.

      Neal requested a hearing but, lacking authority for a transport order, the trial

      court ordered the submission of the matter by affidavit. 2




      1
       He does not challenge the judgment in favor of defendant Mark Sevier, having conceded that Mark Sevier is
      not subject to personal liability, pursuant to Indiana Code Section 34-13-3-5.
      2
        Generally, a court lacks jurisdiction over a prisoner who has been convicted, sentenced and delivered to
      prison pursuant to a commitment, and does not have a right to order the prisoner’s return to court even
      temporarily except in connection with matters relating to the case in which he was sentenced. Rogers v.
      Youngblood, 226 Ind. 165, 169, 78 N.E.2d 663, 665 (1948). However, a prisoner has a constitutional right to
      bring a civil action, pursuant to Article 1, § 12 of the Indiana Constitution: “[a]ll courts shall be open; and
      every person, for injury done to him in his person, property or reputation, shall have remedy by due course of
      law.”
      Implicit in the right to bring a civil claim is the right to present the claim in court and a “trial court should not
      be able to deprive a prisoner of his constitutional right to maintain a civil action by denying motions that the

      Court of Appeals of Indiana | Memorandum Decision 52A02-1410-SC-735 | January 14, 2016                   Page 2 of 6
[4]   After reviewing the affidavits and documents submitted by the parties, the small

      claims court entered judgment for the defendants. The order stated, without

      elaboration, that Neal had failed to meet his burden of proof. Additionally, the

      court made a finding of fact that Neal had been contributorily negligent. This

      appeal ensued.



                                  Discussion and Decision
[5]   Indiana Small Claims Rule 8(A) provides:

              The trial shall be informal, with the sole objective of dispensing
              speedy justice between the parties according to the rules of
              substantive law, and shall not be bound by the statutory
              provisions or rules of practice, procedure, pleadings or evidence
              except provisions relating to privileged communications and
              offers of compromise.


[6]   Accordingly, appellate review of a small claims decision is particularly

      deferential. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). We review

      factual determinations for clear error and review questions of law de novo. Id.

      In conducting a review for clear error, we do not reweigh the evidence nor

      determine the credibility of witnesses. Austin v. State, 997 N.E.2d 1027, 1040




      court can properly deny while concurrently ignoring the prisoner’s requests for other methods that would
      allow the prisoner to prosecute from prison.” Zimmerman v. Hanks, 766 N.E.2d 752, 757-58 (Ind. Ct. App.
      2002). There remain “avenues available” to permit an inmate to “prosecute his action without having to
      represent himself at a trial in the courthouse.” Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct. App.
      1997). These include such avenues as submission by documentary evidence, trial by telephonic conference,
      representation by counsel, and postponement until release from incarceration. Id.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1410-SC-735 | January 14, 2016           Page 3 of 6
      (Ind. 2013). Clear error is that which leaves us with a definite and firm

      conviction that a mistake has been made. Id.


[7]   “A plaintiff seeking damages for negligence must establish (1) a duty owed to

      the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury

      proximately caused by the breach of duty.” Pfenning v. Lineman, 947 N.E.2d

      392, 398 (Ind. 2011). The duty of a custodian of inmates is “to take reasonable

      steps under the circumstances for the life, health, and safety of the detainee.”

      Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind. 1998).


[8]   In most tort cases, a comparative negligence scheme is applicable and thus the

      negligence of a plaintiff, which contributed to the injury at issue, does not itself

      afford a complete defense to liability for a defendant. I.C. § 34-51-2-1 et seq.;

      Kader v. State, 1 N.E.3d 717, 728 (Ind. Ct. App. 2013). However, where a

      plaintiff pursues a claim of negligence against an alleged tortfeasor under the

      Indiana Tort Claims Act (“the Act”), the comparative negligence scheme of the

      Indiana Comparative Fault Act does not apply. Kader, 1 N.E.3d at 728.

      Rather, contributory negligence on the part of a plaintiff provides a complete

      defense to liability for the State and government actors who fall within the

      scope of the Act. Id. The Act applies to tort suits against governmental entities,

      political subdivisions, and individual members or employees of government

      entities under certain circumstances. Id.


[9]   Whether a plaintiff has engaged in negligent conduct that contributed to his

      injury is ordinarily a question for the fact-finder. Id. at 729. However,


      Court of Appeals of Indiana | Memorandum Decision 52A02-1410-SC-735 | January 14, 2016   Page 4 of 6
       contributory negligence may be decided as a question of law where the facts are

       undisputed. Funston v. Sch. Town of Munster, 849 N.E.2d 595, 599 (Ind. 2006).

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

       to which he should conform for his own protection and safety. Jones v. Gleim,

       468 N.E.2d 205, 207 (Ind. 1984). If there is any negligence on the plaintiff’s

       part, however slight, and that negligence is a proximate cause of his injuries,

       then the plaintiff is barred from any recovery against the government actor.

       Funston, 849 N.E.2d at 598.


[10]   Here, the small claims court concluded that Neal had been contributorily

       negligent, stating:


               The Court further finds that the Plaintiff was contributorily
               negligent as he noticed the puddle of water on the floor that he
               alleges caused his fall, and then knowingly entered into the area
               of the puddle which ultimately lead [sic] to his fall.


       (App. at 7.)


[11]   This conclusion is supported by Neal’s own affidavit, wherein he averred:


               On June 13th, 2013 there was a puddle in DFAC No. 4 near the
               exit, caused by a leak in the ceiling.


               That while exiting the DFAC I noticed a portion of this puddle
               and moved to step around it.


               That unfortunately the way the light was reflecting off the surface
               of the puddle made its full extent unascertainable from my
               perspective.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1410-SC-735 | January 14, 2016   Page 5 of 6
               Thus my attempt to avoid the puddle was negated; i.e. I stepped
               over the frying pan and unknowingly into the fire.


               That broad stepping into this puddle – in an attempt to avoid it –
               caused me to slip and fall violently.


       (App. at 10-11.)


[12]   The facts regarding Neal’s knowledge and conduct are not in dispute. Neal

       admittedly knew that there was a puddle of water on the cafeteria floor.

       Despite his limited mobility and use of a cane, he attempted to “broad-step” the

       puddle. (App. at 11.) The small claims court properly concluded that Neal was

       contributorily negligent.



                                                 Conclusion
[13]   We find no clear error in the decision of the small claims court.


[14]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1410-SC-735 | January 14, 2016   Page 6 of 6
