                                                                       FILED
                                                                  May 21 2018, 7:37 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANTS                              ATTORNEYS FOR APPELLEES SARA L.
Adam J. Sedia                                        RITZ AND PORTER COUNTY DRUG
Hoeppner, Wagner & Evans, LLP                        TASK FORCE
Merrillville, Indiana                                Crystal G. Rowe
                                                     Alyssa C.B. Cochran
                                                     Kightlinger & Gray, LLP
                                                     New Albany, Indiana
                                                     Galen A. Bradley
                                                     Kightlinger & Gray, LLP
                                                     Merrillville, Indiana
                                                     ATTORNEY FOR APPELLEE TOWN OF
                                                     CHESTERTON
                                                     Thomas Waggoner
                                                     Straub, Seaman & Allen, PC
                                                     St. Joseph, Michigan



                                            IN THE
    COURT OF APPEALS OF INDIANA

Sheila Gonzalez and Rod                                   May 21, 2018
Gonzalez,                                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                    64A04-1712-CT-2850
                                                          Appeal from the Porter Superior
        v.                                                Court
                                                          The Honorable Roger V. Bradford, Judge
Sara Ritz, Northern Indiana
                                                          Trial Court Cause No.
Public Service Company, Porter                            64D01-1410-CT-8648




Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018                    Page 1 of 12
      County Drug Task Force, and
      Town of Chesterton,
      Appellees-Defendants.



      Bradford, Judge.



                                           Case Summary
[1]   In July of 2014, Sheila Gonzalez was riding her bicycle on a trail with her two

      children when the trio came to an intersection with a road. When Sheila

      attempted to cross the road, she was struck by a vehicle driven by Sara Ritz, a

      member of the Chesterton Police Department (“the Department”) and Porter

      County Drug Task Force (“the Task Force”). Gonzalez and her husband Rod

      sued Ritz, the Task Force, and the Town of Chesterton (“the Town”) for

      negligence. The Task Force moved for summary judgment on the basis that

      there was no genuine issue of material fact that Sheila had been contributorily

      negligent as a matter of law. The Town joined the Task Force’s motion, and

      the trial court entered summary judgment in favor of the Task Force and the

      Town (collectively, “Appellees”). The Gonzalezes appeal, contending that the

      designated evidence does not inevitably lead to the inference that Sheila was

      contributorily negligent. Because we agree, we reverse the trial court’s grant of

      summary judgment in favor of Appellees and remand for trial.



                             Facts and Procedural History

      Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018   Page 2 of 12
[2]   In July of 2014, Ritz was employed as a detective for the Department and

      served as a member of the Task Force. On July 9, 2014, Ritz was in Portage,

      Indiana, conducting an investigation within the course and scope of her

      employment. Ritz was stopped at the four-way intersection of Swanson Road

      and Aspen Road before she proceeded east down Lute Road.


[3]   Meanwhile, Sheila and her children Vanessa and Carter had been riding their

      bicycles on the Prairie Duneland Trail (“the Trail”) nearby. The trio

      approached the Trail’s intersection with Lute Road, which had a stop sign

      directing bicyclists to stop and yield to traffic on Lute Road. No trees,

      shrubbery, tall grass, weather, or other obstructions prevented bicyclists from

      seeing traffic on Lute Road that day. When the three Gonzalezes reached the

      stop sign at the Lute Road intersection, they came to a complete stop. Vanessa

      crossed Lute Road without incident and waited on the other side.


[4]   Carter and Sheila remained stopped on the Trail while approximately nine to

      ten vehicles passed on Lute Road. Sheila looked right then left, told Carter that

      “it was clear, we can go[,]” and started to pedal across Lute Road. Appellant’s

      App. Vol. II p. 48. Carter agreed with Sheila’s assessment that “the traffic

      became clear on Lute Road[,]” and, after looking both ways himself, started to

      follow Sheila, trailing a few feet behind. Appellant’s App. Vol. II p. 43. As

      Carter started to follow Sheila across the street, he looked to his right and

      noticed Ritz’s vehicle approaching. Carter stopped his bicycle and yelled at

      Sheila to stop. Carter first saw Ritz’s vehicle approximately one second before

      it struck Sheila.


      Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018     Page 3 of 12
[5]   According to Carter, the vehicle appeared to be going faster than all of the other

      vehicles that had passed. Vanessa told police at the scene that Ritz’s vehicle

      was going “f****** fast[,]” Appellant’s App. Vol. II p. 63, and later opined that

      Ritz was driving too fast. Although Sheila could not recall anything about the

      accident, she testified that it was her practice while riding a bicycle to stop at all

      intersections and look both ways before crossing.


[6]   On February 4, 2016, the Gonzalezes filed their first amended complaint. The

      Gonzalezes alleged, inter alia, that the Appellees were vicariously liable for the

      alleged negligence of their employee, Ritz.1 On April 12, 2016, the Town filed

      its answer to the Gonzalezes’ amended complaint, and on April 18, 2016, the

      Task Force filed its answer. On May 17, 2017 the Task Force moved for

      summary judgment. The Town joined the Task Force’s summary-judgment

      motion and filed its own on July 10, 2017.


[7]   On September 25, 2017, the trial court denied the Gonzalezes’ motion to file a

      belated response to the Appellees’ summary-judgment motion, held a hearing

      (at which the Gonzalezes were permitted to present argument), and granted

      summary judgment in favor of the Appellees. The Gonzalezes filed a motion to

      correct error, which motion the trial court denied.




      1
        Sheila was knocked from her bicycle and into a utility pole allegedly owned and maintained by Appellee-
      Defendant Northern Indiana Public Service Company (“NIPSCO”). The Gonzalezes alleged that NIPSCO,
      who does not participate in this appeal, had negligently maintained the pole. The Gonzalezes also
      acknowledge that Ritz, who also does not participate in this appeal, cannot be held personally liable for the
      consequences of any negligent acts she may have committed in this case.



      Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018                          Page 4 of 12
                                 Discussion and Decision
[8]   Although review of a trial court’s ruling on a motion to correct error is generally

      for an abuse of discretion, where the issue raised is purely a question of law, the

      standard of review is de novo. City of Indpls. v. Hicks, 932 N.E.2d 227, 230 (Ind.

      Ct. App. 2010), trans. denied. On review of a trial court’s decision to grant or

      deny summary judgment, we must determine whether there is a genuine issue

      of material fact that precludes summary judgment and whether the moving

      party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Carie v.

      PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). Once the moving party has

      sustained its initial burden of proving the absence of a genuine issue of material

      fact and the appropriateness of judgment as a matter of law, the party opposing

      summary judgment must respond by designating specific facts establishing a

      genuine issue for trial. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[9]   A fact is “material” if its resolution would affect the outcome of the case and

      “genuine” if a trier of fact is required to resolve the parties’ differing accounts of

      the truth, or if the undisputed material facts support conflicting reasonable

      inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind.

      T.R. 56(C)). The non-movant may not rest upon the bare allegations made in

      the pleadings, but must respond with affidavits or other evidence setting forth

      specific facts showing that genuine issues are in dispute. Willsey v. Peoples Fed.

      Sav. & Loan Ass’n. of E. Chicago, Ind., 529 N.E.2d 1199, 1205 (Ind. Ct. App.

      1988).




      Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018     Page 5 of 12
               In reviewing the propriety of a ruling on a motion for summary
               judgment, we apply the same standards as the trial court and
               review all the pleadings, depositions, admissions, answers to
               interrogatories, and any affidavits designated to the trial court in
               the light most favorable to the nonmovant. The movant bears
               the burden of proving the propriety of summary judgment, and
               all rational assertions of fact and reasonable inferences to be
               resolved therefrom are deemed to be true and are viewed in the
               nonmovant’s favor.
       Lindsey v. DeGroot, 898 N.E.2d 1251, 1256 (Ind. Ct. App. 2009) (citation

       omitted). In ruling on a motion for summary judgment, the Court may

       consider only designated evidence that would be admissible at trial. See Ind.

       T.R. 56(C), (E); see also Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind. Ct.

       App. 1996), trans. denied.


[10]   In their appeal from the grant of summary judgment, the Gonzalezes argue that

       the Task Force and the Town failed to establish that Sheila was contributorily

       negligent as a matter of law. Generally, in Indiana actions for negligence, a

       plaintiff’s contributory fault does not bar recovery unless it exceeds fifty percent

       of the total fault. See Ind. Code §§ 34-51-2-5, -6. Because the Indiana

       Comparative Fault Act expressly excludes application to governmental entities,

       however, the common-law defense of contributory negligence remains available

       as a bar for liability for defendants such as the Appellants. See Ind. Code § 34-

       51-2-2 (“This chapter does not apply in any manner to tort claims against

       governmental entities or public employees[.]”). So, even a slight degree of

       negligence on the part of Sheila, if proximately contributing to her claimed




       Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018        Page 6 of 12
       damages, will operate as a complete bar to the Gonzolazes’ action for damages

       against the Appellees.


[11]   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.” Jones v. Gleim, 468 N.E.2d 205, 207 (Ind. 1984); see also

       Hundt v. La Crosse Grain Co., 446 N.E.2d 327, 329 (Ind. 1983). Put another way,

       “[c]ontributory 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.” Brown v. N. Ind. Publ.

       Serv. Co., 496 N.E.2d 794, 798 (Ind. Ct. App. 1986). Contributory negligence is

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

       judgment “if there are conflicting factual inferences.” Butler v. City of Peru, 733

       N.E.2d 912, 917 (Ind. 2000). “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.” Jones, 468 N.E.2d at 207.


[12]   As an initial matter, the Appellees argued below, and argue here, that Sheila is

       presumed to have been contributorily negligent for failing to comply with a

       safety statute or statutes. See, e.g., Davison v. Williams, 242 N.E.2d 101, 105

       (Ind. 1968) (“We believe that the wisest course for the courts of Indiana to take

       in the adjudication of a suit involving negligence by violation of a safety

       regulation is to treat plaintiff’s proof of defendant’s violation of the safety


       Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018     Page 7 of 12
regulation as creating a rebuttable presumption of negligence.”). Pursuant to

Indiana Code section 9-21-11-2, “[a] person riding a bicycle or operating a Class

B motor driven cycle upon a roadway has all the rights and duties under this

article that are applicable to a person who drives a vehicle,” and Appellees draw

our attention to two specific safety statutes that they claim Sheila violated. The

duties imposed under Indiana Code article 9-21 include that a driver must stop

at an intersection where there is a stop sign erected, proceed cautiously, and

yield to vehicles that are not required to stop, Ind. Code § 9-21-8-32, and a

person may not start a vehicle that is stopped until the movement can be made

with reasonable safety. Ind. Code § 9-21-8-23. Given that the statutes cited

above require one to “proceed cautiously” after stopping at a stop sign and not

move a vehicle until it can be done with “reasonable safety[,]” it is clear that

one must essentially be found negligent to trigger the presumption of

negligence, rendering the presumption inapplicable and superfluous, at least in

this case and to the statutes cited by Appellee. In short, we reject Appellees’

assertion that a presumption of negligence stemming from the violation of a

safety statute has any part to play in this case.2




2
  Appellees also cite to Indiana Code section 9-21-8-33(b) for the proposition that “a collision is considered
‘prima facie evidence of the person’s failure to yield the right-of-way’” and seem to suggest that it should
apply to Sheila. Appellee’s Br. p. 21. Subsection (b)’s application is not as broad as Appellants would have
us believe, however. The full text of subsection (b) is as follows: “If a person who drives a vehicle is
involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield
sign without stopping, the collision is considered prima facie evidence of the person’s failure to yield the right-
of-way.” (Emphasis added). Because there is no evidence whatsoever that Sheila either rode her bicycle past
a yield sign or did so without stopping, subsection (b) simply does not apply in this case. We urge counsel for
Appellees to exercise more care in the future so as to avoid mischaracterizing authority in submissions to the
court.



Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018                                Page 8 of 12
[13]   That said, this court has noted that “‘The drivers of automobiles and the drivers

       of other vehicles, including bicycles, owe a duty to others lawfully using the

       public streets and highways, and are required to exercise due care in the use of

       their vehicles not to injure others.’” Smith v. Indpls., 136 Ind. App. 616, 621,

       199 N.E.2d 722, 725 (1964) (quoting Luther v. State, 177 Ind. 619, 623, 98 N.E.

       640, 641 (1912)). That duty of care should not be understood, however, to

       impose unreasonable demands on motorists or bicyclists:


               A motorist upon a highway regularly used by the public is not
               required to anticipate extraordinary hazards, nor to constantly
               expect and search for unusual dangers. Opple v. Ray (1935), 208
               Ind. 450, 459, 195 N.E. 81, 84. However, a motorist is charged
               with the duty of exercising ordinary care to observe dangers and
               obstructions and is chargeable with notice of obstructions that a
               person of ordinary prudence would reasonably be expected to
               observe. Id. To that end, keeping a proper lookout has been
               defined to mean the duty to see that which is clearly visible or
               that which in the exercise of due care would be visible. Thornton
               v. Pender (1978), 268 Ind. 540, 544, 377 N.E.2d 613, 617.
               Generally, whether under the facts of a case a driver complied
               with the standard of ordinary care to keep a lookout for objects in
               the road is a question for the jury. See id.; Cushman Motor Delivery
               Co. v. McCabe (1941), 219 Ind. 156, 170, 36 N.E.2d 769, 774; Bd.
               of Comm’rs v. Briggs (1975), 167 Ind. App. 96, 134, 337 N.E.2d
               852, 875.
       Smith v. Beaty, 639 N.E.2d 1029, 1033 (Ind. Ct. App. 1994).


[14]   While the Gonzalezes implicitly concede that there is designated evidence from

       which a jury could find that Sheila was contributorily negligent, they argue that

       the designated evidence would also permit a finding that she was not. Viewing



       Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018    Page 9 of 12
       the designated evidence in a light most favorable to the Gonzalezes, we

       conclude that they are correct.


[15]   Although Sheila testified that she could not remember the accident, she also

       testified that it was her practice while riding a bicycle to always stop at all

       intersections and look both ways before crossing. (Appellant’s App. Vol. II 95).

       The Gonzalez children’s testimony is consistent with Sheila’s on this point.

       Carter testified that Lute Road was clear and that Sheila came to a complete

       stop, looked right then left, and told him that “it was clear, we can go” before

       starting across. Appellant’s App. Vol. II p. 48. As for why Sheila might not

       have seen Ritz’s vehicle or, perhaps, saw it but underestimated the threat it

       posed, Carter testified that Ritz’s vehicle was traveling faster than the other

       traffic on the road and Vanessa testified that Ritz was driving too fast. A

       factfinder could possibly conclude from the above that Sheila complied with the

       standard of ordinary care but nevertheless failed to see the approaching Ritz,

       and/or incorrectly concluded that her fast-moving vehicle was too far away to

       pose a threat.


[16]   Appellees rely on Funston v. School Town of Munster, 849 N.E.2d 595 (Ind. 2006),

       to support their position that Sheila was contributorily negligent as a matter of

       law. In that case, Funston was attending his son’s basketball game when he sat

       on the top row of some bleachers. Id. at 599. Despite the fact that “[i]t was

       clearly visible that there was no back railing for spectators sitting on the top

       row, … Mr. Funston leaned back anyway[,]” fell, and was injured. Id. The

       Court concluded “from the undisputed facts that only a single inference can


       Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018    Page 10 of 12
       reasonably be drawn: Mr. Funston was negligent to some degree, and this is

       enough to establish the common law defense of contributory negligence as a

       matter of law.” Id. at 600.


[17]   Funston is readily distinguished. In that case, Funston leaned back despite the

       undisputed fact that the hazard, i.e., the lack of railing, was clearly visible.

       Here, contrary to Appellees’ argument, the designated evidence does not

       inescapably lead to the inference that Sheila acted unreasonably in the face of a

       clearly-visible threat: We have already concluded that the evidence could

       possibly support an inference that Sheila acted reasonably but still did not see

       Ritz’s vehicle coming, and/or realize how fast it was traveling, until it was too

       late. Appellees’ reliance on Funston is unavailing.


[18]   Appellees also make arguments related to alleged shortcomings of various

       pieces of designated evidence. Appellees contend that Sheila’s testimony that

       she habitually stopped and looked both ways at intersections while riding her

       bicycle was immaterial and very likely inadmissible to boot. A person’s habits

       can certainly be relevant to the question of how that person acted on a

       particular occasion. This is recognized by Indiana Rule of Evidence 406, which

       provides that


               [e]vidence of a person’s habit or an organization’s routine
               practice may be admitted to prove that on a particular occasion
               the person or organization acted in accordance with the habit or
               routine practice. The court may admit this evidence regardless of
               whether it is corroborated or whether there was an eyewitness.




       Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018     Page 11 of 12
       Sheila’s testimony may qualify for admissibility. At the very least, Appellees

       have failed to establish that it would certainly not be admissible at a trial.


[19]   Appellees also contend that Carter’s and Vanessa’s testimony that Sheila did

       nothing wrong is inadmissible as opinion testimony on the ultimate legal issue

       of Sheila’s negligence. See Ind. Evidence Rule 704(b) (“Witnesses may not

       testify to opinions concerning … legal conclusions.”). Even if we assume that

       this is the case, we have already concluded that Sheila’s testimony and Carter’s

       and Vanessa’s testimony regarding their observations could be sufficient to

       establish a lack of contributory negligence on Sheila’s part.


[20]   Appellees also contend that it is undisputed that Lute Road was not “clear”

       when Sheila entered it, Sheila’s act of stopping before crossing Lute Road is not

       evidence that she kept a proper lookout for hazards, and the undisputed fact

       that Sheila’s view was unobstructed allows only the inference that she saw

       Ritz’s vehicle approaching. Whatever value these arguments might have if

       made to a jury, our job is only to evaluate the designated evidence to the extent

       necessary for deciding whether it generates a genuine issue of material fact,

       precluding summary judgment. We have concluded that it does. We reverse

       the trial court’s entry of summary judgment in favor of the Town and the Task

       Force and remand for trial.


[21]   We reverse the judgment of the trial court and remand with instructions.


       Baker, J., and Kirsch, J., concur.



       Court of Appeals of Indiana | Opinion 64A04-1712-CT-2850 | May 21, 2018    Page 12 of 12
