 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.


ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE
                                                CITY OF INDIANAPOLIS:
RICHARD A. WAPLES
Waples & Hanger                                 BETH A. GARRISON
Indianapolis, Indiana                           Deputy Chief Litigation Counsel
                                                Office of Corporation Counsel
                                                Indianapolis, Indiana

                                                ATTORNEYS FOR APPELLEE
                                                CITIZENS ENERGY GROUP:

                                                RYAN A. COOK
                                                Citizens Energy Group
                                                Indianapolis, Indiana

                                                BRIAN W. WELCH
                                                ALEX E. GUDE
                                                Bingham Greenebaum Doll LLP
                                                Indianapolis, Indiana



                                                                            May 13 2013, 9:35 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

PAUL KOMYATTI, JR.,                             )
                                                )
       Appellant-Plaintiff,                     )
                                                )
               vs.                              )     No. 49A04-1209-CT-445
                                                )
THE CONSOLIDATED CITY OF                        )
INDIANAPOLIS-MARION COUNTY and                  )
CITIZENS ENERGY GROUP,                          )
                                                )
       Appellees-Defendants.                    )

                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Timothy W. Oakes, Judge
                            Cause No. 49D13-1009-CT-41889
                                        May 13, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

CRONE, Judge

                                      Case Summary

       One afternoon in June 2010, Paul Komyatti, Jr., rode his bicycle to a nearby

Indianapolis bar that he had biked to approximately three times in the last thirty days. He had

also traveled that route in a vehicle approximately six times during that time span and had

seen potholes in the street each time. He stayed at the bar for approximately three hours and

drank at least two twelve- or sixteen-ounce beers.

       It was still light out when Komyatti started biking home on the left side of the street,

in violation of Indiana law. He was traveling at least twenty miles per hour on a downhill

slope when he saw two vehicles approaching him near a railroad overpass. He decided to

move left as far as he could and ride through a puddle beneath the overpass. According to

Komyatti, the puddle concealed a pothole that stopped his bike. He fell forward and lost

consciousness. Komyatti, who was not wearing a helmet, suffered severe facial injuries and

was transported to a hospital. A blood test indicated that his blood alcohol concentration

(“BAC”) was 137 milligrams per deciliter (“mg/dL”), which is 57 mg/dL over the legal limit

for operating a vehicle.

       Komyatti sued the Consolidated City of Indianapolis-Marion County (“the City”) and

Citizens Energy Group (“Citizens”), which stored coke on its property near the railroad




                                              2
overpass.1 He alleged that the City was negligent in failing to maintain the street in a

reasonably safe condition and that Citizens was negligent in allowing coke to escape its

property and contribute to the formation of potholes. The City filed a motion for summary

judgment, asserting that Komyatti’s conduct was contributorily negligent as a matter of law

and that his violation of Indiana traffic statutes was contributorily negligent per se. Citizens

also filed a motion for summary judgment, asserting that it did not breach any duty to

Komyatti and was not a proximate cause of his injuries. The trial court summarily granted

both summary judgment motions.

        On appeal, Komyatti contends that the trial court erred in granting the summary

judgment motions. We conclude that Komyatti’s conduct was negligent as a matter of law

and was a proximate cause of his injuries. As even a slight degree of negligence on a

plaintiff’s part, if it proximately contributed to his claimed damages, will completely bar

recovery for a tort claim against a governmental entity regardless of any negligence on its

part, we affirm the trial court’s grant of summary judgment in favor of the City. Also,

because it is undisputed that Komyatti’s injuries did not result from any dangerous activities

conducted by Citizens on its property, we conclude as a matter of law that Citizens did not

breach its duty to Komyatti as a member of the public traveling on Prospect Street and

therefore affirm the trial court’s grant of summary judgment in favor of Citizens.




        1
           According to Citizens, “Coke is a manufactured product used in the manufacture of other products.
It has the appearance of coal and has varying degrees of hardness.” Citizens’ Br. at 1 n.2.

                                                     3
                                  Facts and Procedural History2

       The designated evidence indicates that at approximately 5:00 p.m. on June 19, 2010,

Komyatti left his home on Southern Avenue in Indianapolis and began pedaling his ten-speed

bicycle toward a bar approximately ten to fifteen minutes away. He biked east to Meridian

Street and then took the Pleasant Run bike trail over to Prospect Street. While biking east on

Prospect Street, he rode on the south side of the street but may have moved to the north side

of the street at some point. He had biked to the bar approximately three times in the past

thirty days and had always taken the same route. He had also traveled that stretch of Prospect

Street in a vehicle approximately six times in the past thirty days and had seen potholes in the

street each time.

       Komyatti turned south onto Southeastern Avenue and arrived at the bar. According to

Komyatti, he drank two twelve- or sixteen-ounce glasses of beer while at the bar. At

approximately 8:00 p.m., Komyatti left the bar. According to Komyatti, he did not feel

intoxicated and believed that he was “of sound mind … to operate a bicycle.” Appellant’s

App. at 133. According to bar manager Don Noe, who had “plenty of experience with people

who have had too much alcohol to drink and who become impaired as a result,” Komyatti

“did not appear to be intoxicated. He was not slurring his speech, he did not have bloodshot

eyes, he was steady on his feet, and he seemed fine.” Id. at 289. When Komyatti rode away

from the bar, “he seemed to be in complete control of the bicycle.” Id. Noe “was not the

least bit concerned about [Komyatti] and his ability to safely ride his bicycle when he left.”


       2
           We heard oral argument on April 25, 2013. We thank counsel for their presentations.

                                                    4
Id. at 290. According to Komyatti’s girlfriend, Jenny Sterling, Komyatti called her before he

left the bar and told her that he had consumed “two buckets of beer.” Id. at 191.3 Sterling

could “[n]ot really” tell that Komyatti had been drinking; his words “weren’t slurred,” and

she believed that he was “fine to ride his bicycle home.” Id.

        The sun had not yet set when Komyatti began to retrace his route homeward. From

Southeastern Avenue, Komyatti turned west onto Prospect Street and rode on the south (left)

side of the street, facing traffic, in violation of Indiana law. Ind. Code §§ 9-21-11-2, 9-21-8-

2.4 As he neared a railroad overpass, he saw two eastbound vehicles coming toward him in

his lane. At that point, Komyatti was “on a downward slope” traveling “at least 20 miles an

hour.” Appellant’s App. at 170. He moved left as far as he could to avoid the oncoming

traffic and decided to ride “right into [a] puddle of water” beneath the overpass. Id. at 168.5

According to Komyatti, the puddle concealed a pothole, which caused the bicycle to stop.

Komyatti, who was not wearing a helmet, fell forward off his bicycle and temporarily lost

consciousness.




        3
            Sterling explained, “I don’t think it’s like a bucket of draft beer or nothing, but I think they put them
in ice or something.” Appellant’s App. at 190-91. According to Noe, the bar had not sold buckets of beer “for
years, and did not do so on June 19, 2010.” Id. at 290.
        4
           Indiana Code Section 9-21-11-2 says, “A person riding a bicycle upon a roadway has all the rights
and duties under this article that are applicable to a person who drives a vehicle, except the following: (1)
Special regulations of this article. (2) Those provisions of this article that by their nature have no application.”
Indiana Code Section 9-21-8-2(a) says, “Upon all roadways of sufficient width, a vehicle shall be driven upon
the right half of the roadway [with certain exceptions not relevant here].”
        5
         The weather had been sunny all day, but Komyatti believed that it had “rained the evening before.”
Appellant’s App. at 146.


                                                         5
        One of the oncoming motorists, Angela Watts, saw Komyatti fall when he was

approximately two car lengths in front of her. After she passed him, she looked in her

rearview mirror and saw that he was not moving. She got out of her car and walked back

toward him. According to Watts, when she approached Komyatti, she “smelled alcohol

coming from him.” Id. at 194. “The bicycle was still between his legs, and [she] saw that the

tire of his bicycle was in a pothole that [she] could clearly see.” Id. She did “not recall there

being any water near and/or in the pothole that would have prevented him from seeing the

pothole.” Id.6 Watts called 911. Komyatti “kept trying to get up and leave the scene, telling

[Watts and another motorist] that he was okay,” but they “repeatedly told him not to move—

that the paramedics were on their way.” Id.

        Komyatti suffered severe facial injuries as a result of his fall and was transported to

Wishard Hospital, where his blood was drawn. His BAC measured 137 mg/dL, which is 57

mg/dL above the legal limit for operating a vehicle. Ind. Code § 9-30-5-1.7




        6
         It is interesting to note that the photo of a waterlogged trench drain and pothole on page 14 of
Komyatti’s brief is time-stamped two days after the accident occurred.
        7
            Indiana Code Section 9-30-5-1(a) says,

                A person who operates a vehicle with an alcohol concentration equivalent to at least
        eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of
        alcohol per:
                (1) one hundred (100) milliliters of the person’s blood; or
                (2) two hundred ten (210) liters of the person’s breath;
        commits a Class C misdemeanor.

Indiana Code Section 9-13-2-196(f) provides in pertinent part that for purposes of Indiana Code Chapter 9-30-
5, “vehicle” means “a device for transportation by land or air.”


                                                     6
       On September 23, 2010, Komyatti filed a negligence complaint against the City and

Citizens, which stored coke in a staging area on Prospect Street near the overpass. The

complaint alleged that the City had failed to maintain Prospect Street in a reasonably safe

condition. The complaint also alleged that Citizens had failed to contain coke on its property

and that coke runoff and spillage had contributed to the formation of potholes beneath the

overpass.

       On March 5, 2012, the City and Citizens filed separate motions for summary

judgment. In its motion, the City argued that it was entitled to summary judgment because

Komyatti’s “conduct was contributorily negligent as a matter of law.” Appellant’s App. at

108. In its supporting brief, the City noted that contributory negligence is a complete bar to

recovery in tort actions against governmental entities. The City also noted that Komyatti was

familiar with the area where the accident occurred and that he

       (1) was legally intoxicated at the time of his accident; (2) rode his bicycle on
       the wrong side of the street into oncoming traffic; (3) did not wear a helmet;
       (4) traveled “pretty fast”—at least twenty miles an hour on the downward
       slope of Prospect Street; and (5) did not stop his bicycle and move off the
       street to allow the oncoming cars to pass him.

Id. at 13. The City also argued that Komyatti’s violation of Indiana traffic statutes was

contributorily negligent per se.

       In support of its motion, the City designated various evidence, including a report from

John E. Pless, M.D., “a board certified Anatomic, Clinical and Forensic pathologist with 38

years [of] experience in the diagnosis of disease and injury.” Id. at 234. Dr. Pless had

reviewed “police reports, emergency reports, medical records, and [Komyatti’s deposition]


                                              7
concerning the circumstances surrounding” his fall. Id. Dr. Pless’s report reads in pertinent

part as follows:

       [Komyatti’s] blood alcohol concentration on admission to Wishard Hospital
       was 137 mg/dL. This is 57 mg/dL over the amount considered operating a
       vehicle while intoxicated. To achieve this level during a three-hour period of
       imbibing adjusting for an increased weight of 230 pounds he would have had
       to have ingested at least 6 (+ or – 2) twelve-ounce beers before getting on his
       bicycle. This amount would clearly affect the ability of the average person.
       Some people are unconscious at that level while others with a history of heavy
       drinking might not show any effects. A person operating a bicycle requires
       more coordination of hand and eye than a person operating a motor vehicle.
       The water covering the hole might change whether he could have anticipated
       the hole in the street. However, there is no mention of water in the road in any
       of the police investigative reports and a witness claims that there was no water
       in the hole.

       In summary, Mr. Komyatti was definitely under the influence of alcohol at the
       time of his accident. It is more likely than not that this affected his ability to
       perceive the danger of this accident. Furthermore, the alcohol would have
       clearly slowed his response to danger limiting hand and eye coordination and
       thus inhibiting his ability to do a defensive maneuver.

Id. at 235.

       In response to the City’s summary judgment motion, Komyatti asserted that the City

breached its duty to maintain Prospect Street in a reasonably safe condition by failing to fix

potholes promptly and by “partially pav[ing] over the storm drain underneath the Prospect

Street railroad bridge, causing water to pool under the bridge and create potholes such as the

one [he] hit while riding his bicycle.” Id. at 236. He further asserted that the City was “not

entitled to summary judgment on its affirmative defense of contributory negligence” because

       [t]here are facts in dispute about how much alcohol [he] consumed, and what
       effect, if any, it had on him. Witnesses state that the alcohol did not appear to
       have any effect on [him], and the City’s sole witness on this issue, its expert
       Dr. Pless, admits this may be true.

                                               8
Id. at 237. In support of his response, Komyatti designated the deposition of Dr. Pless, who

admitted that he did not “know the effect that the alcohol consumption actually had on Mr.

Komyatti” and had “no way of knowing [his] actual degree of impairment.” Id. at 262-63.

Komyatti also argued that he was not contributorily negligent per se because the relevant

traffic statutes were not intended to protect against the risk of the type of harm that occurred

as a result of their violation.

       In a memorandum supporting its summary judgment motion, Citizens argued that it

was entitled to summary judgment because it did not have a duty to inspect or maintain

Prospect Street; did not breach its duty to persons traveling along Prospect Street to refrain

from creating or maintaining an unnecessarily dangerous condition on its property; and did

not proximately cause Komyatti’s injuries. In his response to Citizens’ motion, Komyatti

argued that Citizens had a legal duty not to allow coke to escape its property; that coke pieces

clogged street drains, which led to water pooling and pothole formation; and that vehicles ran

over coke pieces, which deteriorated the pavement and led to pothole formation.

       The trial court did not hold a hearing on the summary judgment motions. On August

23, 2012, the court signed proposed orders submitted by the City and Citizens summarily




                                               9
granting their respective motions.8 Komyatti now appeals. Additional facts will be provided

as necessary.

                                        Discussion and Decision

        Our standard of review in summary judgment cases is well settled.

                When reviewing the grant or denial of summary judgment, this court
        applies the same standard as the trial court. Specifically, we must determine
        whether there is a genuine issue of material fact requiring a trial and whether
        the moving party is entitled to judgment as a matter of law. Neither the trial
        court nor the reviewing court may look beyond the evidence specifically
        designated to the trial court. A party seeking summary judgment must make a
        prima facie showing that there are no genuine issues of material fact and that
        the party is entitled to judgment as a matter of law. Once the moving party
        satisfies this burden through evidence designated to the trial court pursuant to
        Trial Rule 56, the nonmoving party may not rest on its pleadings, but must
        designate specific facts demonstrating the existence of a genuine issue for trial.
         On appeal, we will assess the trial court’s decision to ensure that the parties
        were not improperly denied their day in court. A genuine issue of material fact
        exists where facts concerning an issue that would dispose of the litigation are
        in dispute or where the undisputed material facts are capable of supporting
        conflicting inferences on such an issue.

Hassan v. Begley, 836 N.E.2d 303, 306-07 (Ind. Ct. App. 2005) (citations omitted). “In

determining whether genuine issues of material fact exist, the court must accept as true those

facts established by evidence favoring the nonmoving party and resolve all doubts against the

moving party.” Id. at 306.


        8
            The order granting Citizens’ motion reads, “The Court, having fully considered Citizens Energy
Group’s Motion for Summary Judgment, and having heard oral argument from the parties, rules as follows:
Court hereby GRANTS Defendant Citizens Energy Group’s Motion for Summary Judgment as to all claims
plead by Plaintiff Paul Komyatti, Jr.” Appellant’s App. at 11 (emphasis added). Komyatti criticizes the trial
court for adopting Citizens’ proposed order in light of the obvious inaccuracy. Although we do not condone
the trial court’s lack of attention to this particular detail, we reject Komyatti’s unsupported assertion that the
trial court did not otherwise give its ruling “due consideration.” Appellant’s Br. at 8 n.1. To the extent
Komyatti suggests that the trial court should have drafted its own detailed factual findings, we note that
“[f]indings of fact are unnecessary on decisions of” summary judgment motions. Ind. Trial Rule 52(A).

                                                       10
       A trial court’s summary judgment order is cloaked with a presumption of validity; the

party appealing from a grant of summary judgment bears the burden of persuading us that the

decision was erroneous. Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007),

trans. denied (2008). “We may affirm the grant of summary judgment upon any basis argued

by the parties and supported by the record.” Id.

                            I. Summary Judgment for the City

       Komyatti’s complaint sounds in negligence. “To prevail on a claim of negligence, a

plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach

of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the

breach.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). “To prevail on a

motion for summary judgment in a negligence case, the defendant must establish that the

undisputed material facts negate at least one element of the plaintiff’s claim or that the claim

is barred by an affirmative defense.” Precedent Partners I, L.P. v. Hulen, 863 N.E.2d 328,

331 (Ind. Ct. App. 2007).

       In most negligence actions in Indiana, “a plaintiff’s contributory fault does not bar

recovery unless it exceeds fifty percent of the total fault proximately contributing to the

damages and otherwise operates only to reduce a plaintiff’s damages in proportion to fault.”

Funston v. Sch. Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006) (citing Ind. Code §§ 34-

51-2-5, 34-51-2-6).     Because the Indiana Comparative Fault Act does not apply to

governmental entities, however, the common law defense of contributory negligence remains

applicable to governmental entities such as the City in this case. Id. (citing Ind. Code § 34-


                                              11
51-2-2). Therefore, even a slight degree of negligence on Komyatti’s part, if it proximately

contributed to his claimed damages, will operate as a total bar to his action against the City,

regardless of any negligence on its part. Id.; St. John Town Bd. v. Lambert, 725 N.E.2d 507,

516 (Ind. Ct. App. 2000).9

        In Funston, our supreme court described contributory negligence as follows:

                A plaintiff is contributorily negligent when the plaintiff’s conduct falls
        below the standard to which he should conform for his own protection and
        safety. Lack of reasonable care that an ordinary person would exercise in like
        or similar circumstances is the factor upon which the presence or absence of
        negligence depends. Expressed another way, 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.

849 N.E.2d at 598-99 (alteration, citations, and quotation marks omitted). It must be shown

that a plaintiff

        was actually aware of or should have appreciated the risks involved. Indiana
        courts have found contributory negligence as a matter of law in cases in which
        the voluntary conduct of the plaintiff exposed him to imminent and obvious
        dangers which a reasonable [person] exercising due care for his own safety
        would have avoided.

Jones v. Gleim, 468 N.E.2d 205, 207 (Ind. 1984).

        “An act or omission is said to be a proximate cause of an injury if the resulting injury

was foreseen, or reasonably should have been foreseen, as the natural and probable


        9
           Neither the City nor Komyatti moved for summary judgment as to the City’s alleged negligence, yet
Komyatti devotes almost a quarter of his brief to that issue to “help[] explain Citizens Energy’s negligence, the
City’s ultimate liability, and issues raised by the City’s contributory negligence defense.” Appellant’s Br. at 9.
Also, Komyatti spends several pages arguing that the City “repeatedly utilized an incorrect legal standard”
regarding contributory negligence in its summary judgment submissions and thus misled the trial court as to
the applicable law. Appellant’s Br. at 27. This accusation is unfounded, as the City points out in pages 9
through 12 of its brief.

                                                       12
consequence of the act or omission.” Funston, 849 N.E.2d at 600. “There can be multiple

proximate causes of a resulting event. The defense of proximate cause requires only that a

plaintiff’s negligence be ‘a’ proximate cause, that is, one of the proximate causes.” Id.

       Contributory negligence is an affirmative defense, and thus the burden of proving it

fell on the City. St. John Town Bd., 725 N.E.2d at 516. “Contributory negligence is

generally a question of fact and is not an appropriate matter for summary judgment if there

are conflicting factual inferences. However, where the facts are undisputed and only a single

inference can reasonably be drawn therefrom, the question of contributory negligence

becomes one of law.” Funston, 849 N.E.2d at 599 (citations and quotation marks omitted).

       Komyatti contends that several disputed facts should preclude summary judgment on

the City’s contributory negligence defense, such as the amount of alcohol that he consumed,

the effect that the alcohol had on him, whether his alcohol consumption proximately caused

his injuries, and whether water obstructed his view of the pothole. In response, the City

argues that “[t]he facts raised by Komyatti, while they may be disputed, are not material.”

City’s Br. at 17. The City asserts,

       The undisputed fact remains that Komyatti was under the influence of alcohol
       at the time of his accident—regardless of how much alcohol he consumed and
       the extent the alcohol affected him. Moreover, the fact that Komyatti’s BAC
       was above the legal limit is only one of the many facts in this case that
       establish Komyatti was contributorily negligent as a matter of law, and that his
       actions were “a” proximate cause of his injuries.

              There are no genuine issues of material fact. Komyatti did not
       designate any evidence to dispute the City’s evidence as it relates to the facts
       leading up to and immediately before the accident. Komyatti’s conduct was
       more than “slightly” negligent and was a proximate cause in bringing about his
       injuries. Komyatti was actually aware of and appreciated the risks of riding his

                                             13
       bicycle in that area; yet, chose to do so with a BAC of 0.137, into oncoming
       traffic, traveling “pretty fast,” not yielding to two vehicles approaching him
       head-on, and with no helmet on. Summary judgment was proper in this case.

Id. at 17-18.

       We agree with the City. Komyatti was familiar with the stretch of Prospect Street

where the accident occurred, having traveled it only three hours before the accident and at

least nine other times during the previous thirty days. He had seen potholes in the street each

time. By his own admission, Komyatti drank two twelve- or sixteen-ounce beers at the bar

and rode his bike on the wrong side of the street without a helmet and with a BAC over one

and a half times the legal limit. He was traveling at least twenty miles an hour on a downhill

slope as he approached the railroad overpass and saw two vehicles coming toward him in his

lane. Instead of stopping and letting the vehicles pass or moving into the proper lane,

Komyatti decided to veer left as far as he could and ride through a puddle beneath the

overpass. He obviously had no idea how deep the puddle was or whether it concealed a

pothole like the others he had seen on Prospect Street, but he rode into it anyway, with

disastrous results.

       Based on the totality of the foregoing facts, which are either undisputed or construed

in Komyatti’s favor, we conclude as a matter of law that Komyatti failed 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,” Funston, 849 N.E.2d at 599, and that this failure to

exercise reasonable care was a proximate cause of his claimed damages. The amount of

alcohol that Komyatti consumed, his level of impairment, and the degree to which his


                                              14
impairment might have contributed to his accident are disputed, but those disputes are simply

not material under these circumstances. Therefore, regardless of any possible negligence on

its part, the City is entitled to summary judgment on the basis of Komyatti’s contributory

negligence, and we affirm the trial court’s ruling in its favor. Consequently, we need not

consider whether Komyatti’s violation of traffic statutes was contributorily negligent per se.

                                 II. Summary Judgment for Citizens

        Komyatti asserts, “Evidence links Citizens Energy to the creation of the potholes on

the south lane of Prospect Street underneath the railroad bridge next to its property. Citizens

has negligently permitted coke to routinely escape its property, which clogs storm drains and

erodes the pavement, both processes leading to potholes.” Appellant’s Br. at 18. For its part,

Citizens does not dispute that “[o]ccasionally, coke product may be present on Prospect

Street” and after a heavy rain may “become trapped in storm drains located in the curb and

the trench drain located underneath the railroad overpass where Komyatti struck the pothole”

or “be run over by cars and trucks traveling the road.” Citizens’ Br. at 4-5. The parties

disagree, however, as to the existence and scope of any duty that Citizens may have owed to

Komyatti, whether Citizens breached such duty, and whether such breach proximately caused

Komyatti’s injuries.10


        10
           In a footnote, Komyatti contends that “[i]n addition to its negligence in permitting coke to escape its
Staging Area, Citizens may also be liable to [him] on a public or private nuisance theory. This theory was
raised in Mr. Komyatti’s response to Citizen’s summary judgment motion, but was never replied to by
Citizens.” Appellant’s Br. at 19 n.3 (citations omitted). Komyatti fails to develop a cogent argument, and
therefore his contention is waived. Zoller v. Zoller, 858 N.E.2d 124, 127 (Ind. Ct. App. 2006). Waiver
notwithstanding, we agree with Citizens that “[n]either theory is applicable here” because Komyatti has not
alleged that Citizens interfered with the use and enjoyment of his property. Citizens’ Br. at 17 n.7 (citing
Holland v. Steele, 961 N.E.2d 516, 524 (Ind. Ct. App. 2012), trans. denied).

                                                       15
       “The existence of a duty is to be determined as a matter of law.” Neal v. Cure, 937

N.E.2d 1227, 1236 (Ind. Ct. App. 2010), trans. denied (2011). “Although breach of duty is

generally a question of fact, it can be a question of law where the facts are undisputed and

only a single inference can be drawn from those facts.” Raytheon Eng’rs & Constructors,

Inc. v. Sargent Elec. Co., 932 N.E.2d 691, 695 (Ind. Ct. App. 2010) (citation and quotation

marks omitted). It is undisputed that the City, and not Citizens, had a duty to maintain

Prospect Street. See Carroll v. Jobe, 638 N.E.2d 467, 469 (Ind. Ct. App. 1994) (“A

municipality has a common law duty to exercise reasonable care and diligence to keep its

streets and sidewalks in a reasonably safe condition for travel.… However, there is no

similar corresponding duty for owners of property abutting a public sidewalk.”), trans.

denied (1995); see also Sizemore v. Templeton Oil Co., 724 N.E.2d 647, 654 (Ind. Ct. App.

2000) (holding that gas station owner owed no duty to pedestrian who injured ankle in

pothole in state highway right-of-way adjacent to gas station entrance; “[P]ublic policy

considerations weigh against the extension of the duty to provide safe ingress and egress

outside of the business owner’s premises. It is unclear how a business owner would

discharge such a duty. Surely they would not be required to repair conditions such as

potholes, particularly on state roads.”).

       At oral argument, Citizens suggested, and we agree, that the scope of its duty as a

landowner to a member of the public traveling on an adjacent street is concisely and correctly

summarized in Judge Hoffman’s dissent in Holiday Rambler Corp. v. Gessinger, 541 N.E.2d

559 (Ind. Ct. App. 1989), trans. denied, which reads in pertinent part as follows:


                                             16
                The duty of a landowner to exercise ordinary care in the management of
        its property usually does not extend to persons outside the land, on adjacent
        property or on a sidewalk or highway. Nava v. McMillan (1981), 123 Cal.
        App. 3d 262, 266, 176 Cal. Rptr. 473, 476, cited with approval in State v.
        Flanigan (1986), Ind. App., 489 N.E.2d 1216. An exception to the general
        rule exists where the physical harm caused to the persons outside the land is a
        result of dangerous activities conducted on the land. Id.

                To remove a case from the general rule proscribing off-premises
        liability, two conditions must be satisfied. First, there must be a relationship
        between the landowner and the agency causing the problem on the adjacent
        property. Blake v. Dunn Farms, Inc. (1980), Ind., 413 N.E.2d 560, 564.
        Secondly, it must be shown that the landowner maintained a hazardous
        condition or conducted some activity on its property, beyond the mere fact of
        operating a business, which caused the injury on the adjacent property. Snyder
        Elevators, Inc. v. Baker (1988), Ind. App., 529 N.E.2d 855, 858.

Id. at 565 (Hoffman, J., dissenting).

        Komyatti argues that there is a relationship between Citizens and the “agency causing

the problem” on Prospect Street, but that relationship is attenuated and speculative at best.

Komyatti was not injured as a result of riding over a piece of coke that escaped from

Citizens’ property, but rather as a result of riding into a pothole that he claims was possibly

caused by coke-damaged pavement and/or coke-clogged storm drains in conjunction with the

freeze/thaw cycle.11 At any rate, it is undisputed that Citizens did not maintain a hazardous

condition or conduct some activity on its property beyond the mere fact of operating its




        11
            We note that Komyatti designated no competent evidence establishing that the pavement beneath
the overpass was actually damaged by vehicles running over pieces of coke or that the pothole was actually
caused by coke-clogged storm drains. We also note that Komyatti designated evidence indicating that the
pothole may have been caused by the City’s paving over of a trench drain beneath the railroad overpass, which
resulted in water pooling in that area.

                                                     17
business that caused Komyatti’s injuries on Prospect Street.12 Therefore, we conclude as a

matter of law that Citizens did not breach its duty to Komyatti and affirm the trial court’s

grant of summary judgment on this basis. As such, we need not address the issue of

proximate cause.

        Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




        12
           Consequently, we are unpersuaded by Komyatti’s reliance on Pitcairn v. Whiteside, 109 Ind. App.
693, 34 N.E.2d 943 (1941), in which the plaintiff motorist was rear-ended by another motorist as he drove
through a thick cloud of smoke emanating from a fire started by railroad workers on the defendant railroad’s
adjoining right-of-way. As Judge Hoffman stated in Holiday Rambler,

        Because the railroad itself caused the problem on the abutting highway, a clear relationship
        was established. Moreover the railroad, by burning off the right-of-way, had engaged in a
        hazardous activity beyond the mere operation of its business. The Supreme Court [sic]
        therefore found a duty on the part of the railroad to exercise reasonable care to prevent injury
        to travelers upon the highway.

541 N.E.2d at 565 (Hoffman, J., dissenting).

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