                                                                               May 19 2015, 5:47 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      James P. Fenton                                           Christopher C. Myers
      Daniel G. McNamara                                        Christopher C. Myers & Associates
      Eilbacher Fletcher, LLP                                   Fort Wayne, Indiana
      Fort Wayne, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      City of Fort Wayne,                                       May 19, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                02A05-1408-CT-359
              v.                                                Appeal from the Allen Superior Court
                                                                Lower Court Cause No.
      Katie Parrish,                                            02D02-0702-CT-47
                                                                The Honorable Craig Bobay, Judge
      Appellee-Plaintiff.




      Pyle, Judge.


                                        Statement of the Case
[1]   Appellant/Defendant, City of Fort Wayne (“the City”), files an interlocutory

      appeal of the trial court’s grant of Appellee/Plaintiff, Katie Parrish’s

      (“Parrish”), motion in limine seeking to exclude evidence from her personal

      injury/tort claim trial regarding the fact that she was not wearing a seatbelt

      when a car in which she was a passenger was involved in an automobile

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      accident. On appeal, the City argues that the trial court abused its discretion

      when it granted Parrish’s motion because evidence that she was not wearing a

      seatbelt when she was involved in an accident involving a Fort Wayne police

      officer was admissible to prove that she was guilty of contributory negligence

      for her injuries. In support of this argument, the City claims that Parrish was

      negligent per se for violating Indiana’s mandatory passenger restraint act

      (“Seatbelt Act”). In response, Parrish argues that a violation of the Seatbelt Act

      cannot be used as evidence to prove fault under a theory of contributory

      negligence. Because we conclude that the Indiana Legislature did not clearly

      intend to deviate from common law when it enacted the Seatbelt Act, we agree

      that a violation of the Seatbelt Act may not be used to prove contributory

      negligence, and therefore the trial court did not abuse its discretion when it

      granted Parrish’s motion in limine.


      We affirm.


                                                      Issue
              Whether the trial court abused its discretion when it granted Parrish’s
              motion in limine.

                                                      Facts
[2]   On February 6, 2005, a vehicle operated by a Fort Wayne Police Department

      officer collided with a vehicle operated by Chad Reuille (“Reuille”). Parrish

      was a front seat passenger in Reuille’s car and was not wearing a seatbelt at the

      time of the collision, although the seat where she was sitting was equipped with



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      a seatbelt meeting the applicable federal standards. As a result of the collision,

      Parrish was thrown from the vehicle and sustained physical injuries.


[3]   On February 2, 2007, Parrish filed a negligence action against the City, the

      police officer’s employer, based on the motor vehicle collision. On February 7,

      2014, prior to trial, she filed a motion in limine seeking to exclude from the trial

      any evidence that she had not been wearing a seatbelt at the time of the

      accident. In her motion, she argued this evidence was inadmissible to show

      either her contributory negligence or her failure to mitigate damages. In

      response, the City argued that evidence of her seatbelt usage was admissible

      because Parrish had a duty to wear her seatbelt under the Seatbelt Act, and

      evidence of her seatbelt usage was relevant to prove that she was guilty of

      contributory negligence for her injuries. On May 30, 2014, the trial court

      granted Parrish’s motion in limine. The City now files this interlocutory

      appeal.


                                                   Decision
[4]   On appeal, the City argues that the trial court abused its discretion when it

      granted Parrish’s motion in limine because, according to the City, evidence that

      Parrish was not wearing a seatbelt at the time of the collision was admissible to

      prove her contributory negligence for her injuries. In response, Parrish argues

      that the seatbelt defense may not be used under Indiana law to prove

      contributory negligence in her tort claim action against the City. She also

      asserts that, even if she was negligent, such negligence was not actionable


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      because her lack of a seatbelt was not the proximate cause of the automobile

      accident.


[5]   The grant or denial of a motion in limine is within the sound discretion of the

      trial court and is an adjunct of the power of trial courts to admit and exclude

      evidence. Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999), trans.

      denied. The objectionable occurrence in denying a motion in limine is the

      improper admission of items into evidence. Id. Therefore, when reviewing a

      grant or denial of a motion in limine, we apply the standard of review for the

      admission of evidence, which is whether the trial court abused its discretion. Id.

      We will find that a trial court has abused its discretion when its decision is

      clearly against the logic and effect of the facts and circumstances before the

      court. Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1047 (Ind. Ct. App.

      2007).


[6]   This case revolves around the question of whether Parrish was contributorily

      negligent because she was not wearing her seatbelt during the automobile

      collision. Tort claims against governmental units such as the City are subject to

      the common law principle of contributory negligence because Indiana’s

      Comparative Fault Act does not apply to such entities. St. John Town Bd. v.

      Lambert, 725 N.E.2d 507, 516 (Ind. Ct. App. 2000); IND. CODE § 34-51-2-2

      (providing that the Comparative Fault Act does not apply “in any manner to

      tort claims against governmental entities . . .”). Contributory negligence allows

      a defendant to escape liability if he or she can show that the plaintiff was also

      negligent and that the plaintiff’s negligence was a responsible cause of his or her

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      injuries. See Hopper, 716 N.E.2d at 573. The plaintiff’s actions do not need to

      be the sole cause of the injuries. Id. In fact, under common law principles, any

      contributory negligence on the plaintiff’s part, no matter how slight, will bar all

      recovery provided that the plaintiff’s negligence actually caused his or her

      injuries. St. John Town Bd., 725 N.E.2d at 516. As a result, the City hopes to

      escape its alleged liability by arguing that Parrish’s failure to wear a seatbelt

      was, in some way, the cause of the automobile accident.


[7]   Specifically, the City asserts that Parrish was negligent per se because she

      violated the duty of care established by the Seatbelt Act. 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. Price v. Kuchaes, 950 N.E.2d 1218, 1234 (Ind. Ct. App. 2011)

      (citing Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind. Ct. App.

      1999)), trans. denied. At the time of the collision in this case, the Seatbelt Act

      provided that:

              Each front seat occupant of a passenger motor vehicle that is
              equipped with a safety belt meeting the standards stated in the
              Federal Motor Vehicle Safety Standard Number 208 (49 CFR
              571.208) shall have a safety belt properly fastened about the
              occupant's body at all times when the vehicle is in forward
              motion.




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IND. CODE § 9-19-10-2 (2005).1 However, the statute also provided that:


         (a) Failure to comply with section 1, 2, 3, or 4 of this chapter
         does not constitute fault under [INDIANA CODE §] 34-51-2, [the
         Indiana Comparative Fault Act,] and does not limit the liability
         of an insurer.


         (b) Except as provided in subsection (c), evidence of the failure to
         comply with section 1, 2, 3, or 4 of this chapter may not be
         admitted in a civil action to mitigate damages.


         (c) Evidence of a failure to comply with this chapter may be
         admitted in a civil action as to mitigation of damages in a
         product liability action involving a motor vehicle restraint or
         supplemental restraint system. The defendant in such an action
         has the burden of proving noncompliance with this chapter and
         that compliance with this chapter would have reduced injuries,
         and the extent of the reduction.


I.C. § 9-19-10-7 (2005). Both parties acknowledge, in light of section 7(a) of the

Seatbelt Act, a person’s failure to wear a seatbelt or noncompliance with the

Seatbelt Act cannot be used to prove the negligence of parties that are subject to

the Comparative Fault Act. However, the City argues that, because it is not

subject to the Comparative Fault Act, it may use the Seatbelt Act to prove that

Parrish had a statutory duty to wear her seatbelt and, thus, was negligent per se

under common law.




1
  The legislature has since amended the language of this provision, but its substance has not changed in any
respect that is relevant to this case.

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[8]    The question of whether seatbelt usage may be used as evidence to support

       contributory negligence has been addressed extensively, although not

       conclusively, by Indiana courts. See Hopper, 716 N.E.2d at 571-73 (discussing

       the history of the seatbelt defense in contributory negligence claims). Most

       recently, our Indiana Supreme Court addressed the issue in State v. Ingram, 427

       N.E.2d 444 (Ind. 1981), and we addressed the issue in Hopper.


[9]    In Ingram, our supreme court considered a slightly different issue—whether a

       defendant could use the seatbelt defense to limit a plaintiff’s recovery. There,

       the defendant had tendered a jury instruction that read, in part: “If you find

       from a consideration of all the evidence that the using and fastening of seatbelts

       would have avoided or minimized the resulting damage, then the person

       wronged cannot recover for any item of damage which could have been

       avoided or minimized.” Ingram, 427 N.E.2d at 447. Our supreme court held

       that the trial court’s refusal of this instruction had been proper because evidence

       that a plaintiff had not worn a seatbelt in an automobile accident could not be

       used to limit that plaintiff’s damages on the basis that the plaintiff had failed to

       mitigate his or her injuries. Id. at 448. The Court’s reasoning was that “[t]he

       act of buckling a [seatbelt] is an act the injured party must perform before the

       injury causing the act occurs” and “the question of whether mitigation of

       damages has occurred looks to the acts of the injured party only after the injury

       has occurred.” Id.


[10]   Significantly, the Ingram Court noted that the Indiana Legislature had not

       enacted a provision requiring automobile passengers to wear seatbelts. The

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       Court stated that “[a]bsent a clear mandate from the legislature to require

       Indiana automobile riders to wear [seatbelts], [it was] not prepared to step into

       the breach and judicially mandate such conduct.” Id.


[11]   Subsequently, in Hopper, we addressed a situation more analogous to the instant

       case. The plaintiff there, Hopper, filed a personal injury claim based on injuries

       he and his son received as a result of an accident while Hopper was driving a

       fire truck water tanker with his son for the Johnson Township Volunteer Fire

       Department. Hopper, 716 N.E.2d at 569. The run was a non-emergency run,

       and the accident occurred when one of the defendants passed the truck in a car,

       causing the fire truck to run off the road and overturn. Id. In his claim, Hopper

       named multiple defendants, including the Scott County Highway Department.

       Id. Prior to the trial on the claim, these defendants filed a motion requesting an

       order stating that evidence that Hopper and his son had not been wearing their

       seatbelts at the time of the accident was admissible to demonstrate their fault.

       Id. The trial court granted the motion, and Hopper filed an interlocutory

       appeal. Id.


[12]   On appeal, this Court analyzed Ingram and the history of the seatbelt defense in

       the context of contributory negligence in Indiana. Id. at 571-73. Because the

       Highway Department was a governmental entity, common law applied to the

       Hoppers’ claim, as in the instant case. Id. at 573. Based on our analysis of the

       seatbelt defense, we concluded that under common law alone, automobile

       occupants did not have a duty to wear seatbelts. Id. at 573-74. Our reasoning



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       for this conclusion was based on the principle that under the common law, a

       plaintiff does not have a duty to anticipate the negligence of another. Id. at 573.


[13]   However, the defendants in Hopper also noted that, after Ingram, the Indiana

       Legislature had enacted the Seatbelt Act. Id. at 574. They argued that the

       Seatbelt Act was the requisite statutory mandate contemplated by the Ingram

       Court. Id. Ultimately, we determined that the Seatbelt Act did not apply to the

       Hoppers because trucks were not included within the definition of “passenger

       motor vehicle” governed by the Act. Id. Nevertheless, in dicta we noted that,

       although the legislature had enacted the Seatbelt Act, it had also provided that

       the Act could not be used to determine fault under the Comparative Fault Act.

       Id. As a result, we reasoned:


               We are presented with an interesting dilemma. The legislature
               has spoken on a passenger’s duty to wear a seatbelt, however,
               that duty cannot be used to demonstrate fault and does not apply
               to Hopper. Based on the language of Ingram, we must conclude
               that the Indiana Legislature has not altered the common law.
               Our supreme court stated that no duty to wear a seatbelt would
               be recognized absent “a clear mandate from the legislature.” The
               legislative enactments since Ingram are anything but clear. Not
               only does the requirement to wear seatbelts not apply to the
               present case, but where the legislature so required, it specifically
               stated that such evidence cannot be used to demonstrate fault.
               Accordingly, we find the state of the law with regard to the
               seatbelt defense today as the supreme court found it in Ingram:
               there is no duty, common law or otherwise, for an occupant of a
               truck to wear a seatbelt.


       Id. at 574-75 (internal citations omitted).


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[14]   As the City notes, our decision in Hopper was dicta with respect to vehicles that

       are governed by the Seatbelt Act. See id. Still, we find the same analysis

       persuasive here. Like we noted in Hopper, our Indiana Supreme Court held in

       Ingram that it would not recognize a duty to wear a seatbelt absent “a clear

       mandate from the legislature.” Ingram, 427 N.E.2d at 448. The Seatbelt Act

       established a clear mandate from the legislature for passengers in passenger

       motor vehicles to wear seatbelts, but it also stated that its mandate should not

       be used to demonstrate fault. While this provision does not apply to the City as

       it is exempt from the Comparative Fault Act, the Seatbelt Act did not expressly

       establish that its provisions could be used to establish fault outside of the

       Comparative Fault Act. In contrast, in the same section of the Seatbelt Act the

       legislature was clear in establishing that seatbelt evidence could be used to

       mitigate damages in a products liability action involving a seatbelt system. I.C.

       § 9-19-10-7.


[15]   It is a well-established principle of statutory interpretation that where a statute is

       in derogation of the common law, we must construe it strictly against the

       expansion of liability. See Durham ex rel. Estate of Wade v. U-Haul Int’l, 745

       N.E.2d 755, 759 (Ind. 2001) (discussing this principle of statutory interpretation

       in the context of the Wrongful Death Act), reh’g denied. Accordingly, as there

       has not been a clear mandate from the legislature stating that seatbelt usage

       may be used to prove fault under the common law, we conclude that the

       legislature has not altered common law. Therefore, we also conclude that the

       trial court here did not abuse its discretion in granting Parrish’s motion in

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limine, because her failure to use her seatbelt could not be used to prove her

contributory negligence.2


Affirmed.


Barnes, J., and May, J., concur.




2
 Because we have found that the Seatbelt Act may not be used to prove negligence per se, we need not
address Parrish’s argument that her lack of a seatbelt was not the proximate cause of her injuries.

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