MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                       Oct 10 2018, 10:35 am
regarded as precedent or cited before any
                                                                                  CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Danford R. Due                                           TOWN OF SPEEDWAY
Charles J. Maiers                                        Joseph M. Hendel
Due Doyle Fanning & Alderfer, LLP                        Stephenson Morow & Semler
Indianapolis, Indiana                                    Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         CITY OF INDIANAPOLIS
                                                         Adam S. Willfond
                                                         Office of Corporation Counsel
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edward Duke Brown,                                       October 10, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-715
        v.                                               Appeal from the Marion Superior
                                                         Court
The City of Indianapolis and                             The Honorable Patrick J. Dietrick,
The Town of Speedway,                                    Judge
Appellees-Defendants.                                    Trial Court Cause No.
                                                         49D12-1411-CT-38858



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018                      Page 1 of 15
[1]   Edward Duke Brown appeals the trial court’s entry of summary judgment in

      favor of the City of Indianapolis (“Indianapolis”) and the Town of Speedway

      (“Speedway”) and the denial of his motion to correct error. We affirm.


                                      Facts and Procedural History

[2]   On May 25, 2014, Brown attended the Indianapolis 500 at the Indianapolis

      Motor Speedway (“IMS”) with his wife and friends. Brown rode to the race in

      one of his friend’s vehicles, and they parked in someone’s yard east of the track

      and walked westward on the sidewalk adjacent to West 16th Street to the IMS.

      Following the race and while carrying a backpack, Brown exited the IMS and

      began to walk eastward on the sidewalk adjacent to 16th Street in order to

      return to the vehicle. At that time, all lanes of 16th Street were designated as

      eastbound lanes. At some point, Brown left the sidewalk and started to walk on

      16th Street. As he was walking on 16th Street, he fell and was injured.

      Indianapolis Metropolitan Police Detective Zachary Olson was assigned to

      traffic detail at 16th Street and Olin Avenue which included attempting to keep

      traffic flowing and protecting motorists and pedestrians as they passed through

      the intersection. Detective Olson walked west on 16th Street from his assigned

      intersection toward the racetrack advising and motioning for pedestrians to

      move onto the sidewalk on the north side of 16th Street in order to make room

      for the traffic flow, and when he was returning to his assigned intersection he

      encountered Brown on the ground and called for an ambulance.


[3]   In his complaint as amended, Brown alleged in part that he inadvertently

      stepped into a pothole and that his fall and injuries were a result of the
      Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 2 of 15
      negligence of Indianapolis and Speedway. Speedway and Indianapolis filed

      motions for summary judgment together with designated evidence, and Brown

      filed responses and designated evidence. The parties’ designated evidence

      included, among other materials, portions of the deposition testimony of

      Brown, Brown’s wife, and Detective Olson.


[4]   During his deposition, Brown testified that the tip of his shoe made contact

      with the far side of a chuckhole, his toe became hooked, and he fell back. He

      indicated that he could give an approximate location where he fell but did not

      believe he would be able to remember the exact location. He indicated he was

      proceeding eastbound but did not make it as far as “the viaduct on 16th Street.”

      Appellant’s Appendix Volume 3 at 45. Brown indicated that no one specifically

      told him to walk or not to walk on the street. He testified that the chuckhole

      was perhaps three inches deep and that he did not remember its width. When

      asked “[t]raffic was using the eastbound lanes, but the westbound lanes where

      you were was all pedestrians,” he replied “[c]orrect.” Appellant’s Appendix

      Volume 2 at 109. In her deposition, when asked about the depth of the pothole,

      Brown’s wife answered “[n]ot very deep. It wasn’t like that (indicating). It was

      more, like, little.” Id. at 67. When asked “[h]ow wide was it,” she answered

      “[n]ot very” and “I didn’t spend a whole lot of time looking at it. I don’t

      know.” Id. When asked if she thought it could damage her car to drive over

      the pothole, she answered “[n]o. I don’t think -- no, it wasn’t one of those -- it

      wasn’t a deep one.” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 3 of 15
[5]   During his deposition, Detective Olson testified that his traffic detail “usually

      consists of trying to keep traffic flowing, protecting the safety of motorists and

      the pedestrians as they pass through the intersection, and assisting people

      getting to and from the race.” Id. at 73. When asked if pedestrians walk in the

      street, Detective Olson answered “[t]hey do,” and when asked if he could give a

      proportion of people he believed were on the sidewalk versus the street, he

      replied “[w]ell, obviously, it’s a lot of factors at play, but the majority of people

      try to stay on the sidewalk. Sometimes the flow is heavy and there are people

      in the street. It fluctuates.” Id. at 115. Detective Olson further testified that he

      spoke with Brown and observed in Brown what he believed to be signs of

      intoxication, including glassy and bloodshot eyes and slurred speech. When

      asked to estimate the number of people “surrounding [him] at that time within

      let’s say 50 yards,” Detective Olson answered in part “the best way I could

      describe it would be is if you were walking through the concourse of a sporting

      event as it’s letting out. I mean the same, more or less, a similar density of

      people was walking down the sidewalk as would be walking out of an event . . .

      there’s still a lot of people at that point.” Id. at 116. When asked “[w]ould it be

      fair to characterize the pedestrian volume as if not shoulder to shoulder, then

      very close to that,” he replied “I would say pretty close.” Id. Detective Olson

      indicated that he told pedestrians to move out of the street very frequently, that

      he was able to give tickets to pedestrians for being in the street, that he had not

      written any such tickets, that he typically encouraged people to exit the street

      for their safety, and that writing tickets would take all of his time.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 4 of 15
[6]   Detective Olson indicated that at some point there were six lanes of traffic all

      traveling eastbound and that there was never any lane of 16th Street that was

      specifically closed for pedestrian traffic. When asked “[s]o you had actually

      proceeded west of [Brown’s] location, correct, telling pedestrians to get out of

      your way,” Detective Olson answered “[c]orrect,” and when asked “[s]o

      [Brown] would have passed you” and “at that time, you were telling

      pedestrians repeatedly get out of the road,” he responded affirmatively. Id. at

      78. When asked “[s]o he would’ve been one of those pedestrians you were

      telling [to] get out of the road,” Detective Olson replied “I would assume, yes.”

      Id.


[7]   Speedway designated deposition testimony that there were no prior reports of

      personal injury or property damage on 16th Street. Speedway, Indianapolis,

      and Brown designated deposition testimony that, after the race, none of the

      lanes on 16th Street were designated as pedestrian walking surfaces and all of

      the lanes were being used for vehicular traffic. Brown and Indianapolis

      designated portions of the deposition testimony of the Director of Public Works

      for Speedway, who testified that, in 2014, Indianapolis and Speedway had an

      agreement related to 16th Street on the south end of the IMS property whereby

      Indianapolis was responsible for major repairs, replacement, and upgrades and

      Speedway was responsible for minor maintenance which included pothole

      patching and some striping and crosswalks. Indianapolis also designated

      evidence that the area of 16th Street west of Olin Avenue was part of the plan

      whereby Speedway is responsible for minor repairs of paved areas such as


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 5 of 15
      potholes and that Indianapolis’s westernmost boundary on 16th Street is a

      railroad trestle near Olin Avenue.


[8]   In a portion of the Director’s deposition designated by Brown, when asked if

      Speedway inspected the streets which surround the track prior to the

      Indianapolis 500, the Director replied “[y]es . . . before the mini-marathon at

      the first of May and we’re coming out of winter into spring, we start pothole

      patching as soon as the asphalt plants open up, so we start running

      thoroughfares, secondaries, and then spread out to our alleyways.” Id. at 124.

      He continued that “[t]hen when we get closer to May, we reinspect all of our

      mini-marathon routes around the track, 16th, Georgetown, anything that’s in

      our jurisdiction that we have activities and people/fans coming to our events.”

      Id. When asked about records of the inspections, the Director replied: “They’re

      not specific to. It will show that we were doing pothole patching, whatever

      variety of work we were doing that week. It wouldn’t be specific to a street or

      an area that the crews were assigned out to do specific tasks that week and what

      was accomplished that week.” Id. Indianapolis designated an affidavit of an

      administrator in its Department of Public Works stating that Speedway is

      responsible for minor repairs of paved areas such as potholes, routine

      maintenance, street cleaning, and weed and grass control on West 16th Street

      and that Indianapolis is responsible for large-scale projects, capital

      improvements, major resurfacings, street signage, and traffic signals.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 6 of 15
[9]    Following a hearing, the trial court entered summary judgment in favor of

       Indianapolis and Speedway. Brown filed a motion to correct error, and the

       court denied the motion.


                                                   Discussion

[10]   The issue is whether the trial court erred in entering summary judgment in

       favor of Speedway and Indianapolis or abused its discretion in denying Brown’s

       motion to correct error. When reviewing a grant or denial of a motion for

       summary judgment our well-settled standard of review is the same as it is for

       the trial court: whether there is a genuine issue of material fact, and whether the

       moving party is entitled to judgment as a matter of law. Goodwin v. Yeakle’s

       Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). The party moving for

       summary judgment has the burden of making a prima facie showing that there

       is no genuine issue of material fact and that the moving party is entitled to

       judgment as a matter of law. Id. Once these requirements are met, the burden

       then shifts to the non-moving party to show the existence of a genuine issue by

       setting forth specifically designated facts. Id. Any doubt as to any facts or

       inferences to be drawn therefrom must be resolved in favor of the non-moving

       party. Id. A trial court’s grant of summary judgment is clothed with a

       presumption of validity, and the party who lost in the trial court has the burden

       of demonstrating that the grant of summary judgment was erroneous.

       Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App.

       2014), trans. denied. We will affirm a trial court’s grant of summary judgment

       upon any theory or basis supported by the designated materials. Id. We review

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 7 of 15
       the denial of a motion to correct error for an abuse of discretion. Speedway

       SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied.


[11]   Brown argues that he can identify what made him fall, i.e. a pothole, although

       he is unable to identify the precise location of the pothole. He argues that,

       “[w]hile it may be that a municipality is normally only required to take

       reasonable steps to keep its roads safe for vehicular traffic, certain instances

       (such as when a municipality can reasonably expect thousands of people to be

       exiting a sporting event) call for a jury determination of whether the broad type

       of plaintiff and the broad type of harm suffered, in light of all of the facts, were

       foreseeable, giving rise to a duty.” Appellant’s Brief at 15. Brown further

       argues that Speedway and Indianapolis had a duty to maintain 16th Street for

       pedestrian traffic on the day of the race, and that “whether use of the sidewalk

       along 16th Street right outside of IMS is practicable within an hour or so

       following the Indianapolis 500, is a question for a jury.” Id. at 18. He asserts

       that “a juror could reasonably infer that Speedway had constructive notice of

       the subject pothole; that in the exercise of ordinary care and diligence it would

       have discovered this pothole while doing its inspections of the roadways in the

       days and weeks before the Indianapolis 500.” Id. at 25.


[12]   Speedway maintains that the designated evidence establishes that Brown was

       contributorily negligent and was in the best position to see if there was a hole in

       front of him and nevertheless failed to observe where he was walking and

       stepped into an open hole. It further argues Brown was contributorily negligent

       per se because he was walking in the middle of the street in violation of Ind.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 8 of 15
       Code § 9-21-17-12, that Brown cannot overcome the presumption of

       contributory negligence resulting from his violation of the statute, that he would

       have been one of the pedestrians Detective Olson was instructing to exit the

       street, and that there is no designated evidence that the sidewalk was not

       accessible or that Brown was prevented from using it. In addition, Speedway

       maintains that it had neither actual nor constructive notice of the pothole, that

       there were no prior reports of a pothole in the area, and that it is mere

       speculation that a pothole existed when the town made its pre-race inspections.

       It also argues that it did not owe Brown a duty to maintain the center of 16th

       Street in a condition safe for pedestrian traffic. Indianapolis argues that it had

       no duty to repair the pothole which injured Brown and that Brown was

       contributorily negligent and negligent per se as a matter of law.


[13]   To prevail on a claim of negligence the plaintiff must show: (1) a duty owed to

       plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the

       applicable standard of care; and (3) compensable injury proximately caused by

       defendant’s breach of duty. Goodwin, 62 N.E.3d at 386. Whether a duty exists

       is a question of law for the court to decide. Id. at 386-387. A defendant may

       obtain summary judgment in a negligence action when the undisputed facts

       negate at least one element of the plaintiff’s claim. Pelak v. Ind. Indus. Servs.,

       Inc., 831 N.E.2d 765, 769 (Ind. Ct. App. 2005), reh’g denied, trans. denied.

       Negligence cannot be inferred from the mere fact of an accident. Id. Rather, all

       the elements of negligence must be supported by specific facts designated to the

       trial court or reasonable inferences that might be drawn from those facts. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 9 of 15
       An inference is not reasonable when it rests on no more than speculation or

       conjecture. Id. Where the facts are undisputed and lead to but a single

       inference or conclusion, the court as a matter of law may determine whether a

       breach of duty has occurred. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind.

       2003), reh’g denied.


[14]   Governmental entities have a general duty to exercise reasonable care in

       designing, constructing, and maintaining highways for the safety of public

       users. Fulton Cty. Comm’rs v. Miller, 788 N.E.2d 1284, 1286 (Ind. Ct. App.

       2003). Ind. Code § 9-13-2-73 provides: “‘Highway’ or ‘street’ means the entire

       width between the boundary lines of every publicly maintained way when any

       part of the way is open to the use of the public for purposes of vehicular travel.

       The term includes an alley in a city or town.” The duty of a governmental

       entity to maintain and repair roads within its control does not attach unless the

       city has actual or constructive notice of a dangerous situation. Harkness v. Hall,

       684 N.E.2d 1156, 1161 (Ind. Ct. App. 1997), trans. denied. The rule of

       constructive knowledge applies to defects as might have been discovered by the

       exercise of ordinary care and diligence. Id. It is well settled that the

       complaining party must not only prove that the alleged defective condition

       existed, but that the governmental entity “had knowledge thereof, actual or

       constructive, long enough before the accident to repair the defect, and failed to

       do so.” Bd. of Comm’rs of Delaware Cty. v. Briggs, 167 Ind. App. 96, 119-120, 337

       N.E.2d 852, 868 (1975), reh’g denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 10 of 15
[15]   In most actions for negligence 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, -6). However, the Indiana

       Comparative Fault Act expressly excludes application to governmental entities,

       and thus the common law defense of contributory negligence remains

       applicable for governmental defendants. Id. (citing Ind. Code § 34-51-2-2).

       Therefore, even a slight degree of negligence on the part of Brown, if

       proximately contributing to his claimed damages, will operate as a total bar to

       his action against Speedway and Indianapolis. See id.


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

       to which he should conform for his own protection and safety. Id. Lack of

       reasonable care that an ordinary person would exercise in similar circumstances

       is the factor upon which the presence or absence of negligence depends. Id.

       Where the facts are undisputed and only a single inference can reasonably be

       drawn therefrom, the question of contributory negligence is one of law. Id.

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


[17]   Further, it must be shown that the plaintiff’s negligent act was a proximate

       cause of his injury and that he was actually aware of or should have appreciated

       the risks involved. Jones, 468 N.E.2d at 207. 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

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 11 of 15
       reasonable person exercising due care for his own safety would have avoided.

       Id. 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 consequence of the act or omission. Funston, 849 N.E.2d

       at 600. There can be multiple proximate causes of a resulting event. Id. The

       defense of proximate cause requires only that a plaintiff’s negligence be “a”

       proximate cause, that is, one of the proximate causes. Id.


[18]   Negligence per se is the unexcused or unjustified violation of a duty prescribed

       by statute where the statute is intended to protect the class of persons in which

       the plaintiff is included and to protect against the type of harm which has

       occurred as a result of the violation. City of Ft. Wayne v. Parrish, 32 N.E.3d 275,

       277 (Ind. Ct. App. 2015), trans. denied. Indiana courts have a long and

       continuous history of recognizing negligence actions for statutory violations.

       See Kho v. Pennington, 875 N.E.2d 208, 212 (Ind. 2007) (plurality opinion)

       (citing numerous opinions including Canfield v. Sandock, 563 N.E.2d 1279, 1283

       (Ind. 1990) (violation of statutory duties of pedestrians), reh’g denied). Proof of

       the violation of a safety regulation creates a rebuttable presumption of

       negligence. Witham v. Norfolk & W. Ry. Co., 561 N.E.2d 484, 485 (Ind. 1990).

       The presumption may be rebutted by evidence that the person violating the

       statute did what might reasonably be expected of a person of ordinary

       prudence, acting under similar circumstances, who desired to comply with the

       law. Id. Ind. Code § 9-21-17-12 provides: “If a sidewalk is provided and the

       sidewalk’s use is practicable, a pedestrian may not walk along and upon an

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 12 of 15
       adjacent roadway.” Ind. Code § 9-21-17-13 provides that, “[i]f a sidewalk is not

       available, a pedestrian walking along and upon a highway shall walk only on a

       shoulder, as far as practicable from the edge of the roadway.” Ind. Code § 9-13-

       2-167 provides: “‘Sidewalk’ means the part of a street between the curb lines, or

       the lateral lines of a roadway, and the adjacent property lines intended for the

       use of pedestrians.”


[19]   In this case, the designated evidence reveals that Speedway and Indianapolis

       had an agreement pursuant to which Speedway was responsible for minor

       maintenance of 16th Street south of the IMS and that this minor maintenance

       included patching potholes in the roadway. The designated evidence also

       reveals that there were no prior reports of personal injury or property damage

       on 16th Street. Brown points to the roadway inspections performed by

       Speedway prior to the Indianapolis 500; however, the Director of Public Works

       for Speedway testified that the inspections occurred prior to the mini-marathon

       at the first of May, and Brown does not point to designated evidence that the

       inspections revealed the pothole upon which Brown tripped or the extent to

       which the inspections revealed roadway defects which were not addressed prior

       to the race. Brown’s wife indicated that she did not think the pothole would

       have caused damage to a vehicle driving over it. The designated evidence

       demonstrates a prima facie showing of a lack of actual or constructive notice or

       knowledge of any roadway defect or dangerous condition in the area where

       Brown fell. The burden then shifted to Brown to specifically designate evidence

       that Speedway had notice or knowledge of the defect for a sufficient period of


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 13 of 15
       time before the accident to perform any needed patch or repair. See Briggs, 337

       N.E.2d at 868. An inference is not reasonable when it rests on no more than

       speculation or conjecture. See Pelak, 831 N.E.2d at 769. The fact that

       Speedway completed the inspections as described in the designated materials,

       without more, does not reveal that it had constructive knowledge of all possible

       defects or of a particular defect on 16th Street. Brown has not met his burden of

       specifically designating evidence of Speedway or Indianapolis’s knowledge.

       Thus, the duty to repair a particular pothole on 16th Street did not attach. See

       Harkness, 684 N.E.2d at 1161. The entry of summary judgment was proper on

       this basis.


[20]   In addition, the designated evidence establishes that Brown left the sidewalk

       adjacent to 16th Street, entered the roadway, and was walking in the roadway

       of 16th Street when he fell. Although there may have been a number of people

       leaving the IMS, the designated evidence establishes that, at the time of

       Brown’s fall, all of the lanes of 16th Street were designated vehicular lanes and

       that none of the lanes were designated as pedestrian walking surfaces.

       Detective Olson was directing pedestrians at that time to move to the sidewalk

       so that the street would be clear for vehicular traffic. The designated materials

       demonstrate that Brown 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 have exercised, that his conduct exposed him to a

       danger which a reasonable person exercising due care for his own safety would

       have avoided, and that his failure to exercise reasonable care was one of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 14 of 15
       proximate causes of his injury. Brown’s contributory negligence also supports

       the entry of summary judgment in favor of Indianapolis and Speedway. See

       Funston, 849 N.E.2d at 598 n.2 (“Under the common law defense of

       contributory negligence, a plaintiff may not recover if guilty of any negligence,

       no matter how slight, that proximately contributes to the claimed injury.”).


                                                   Conclusion

[21]   For the foregoing reasons, we affirm the trial court’s entry of summary

       judgment.


[22]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-715 | October 10, 2018   Page 15 of 15
