                                                                    FILED
OPINION ON REHEARING                                            Jul 20 2016, 8:19 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jason D. May                                               Pamela G. Schneeman
Law Office of Jason D. May, LLC                            Assistant Corporation Counsel
Indianapolis, Indiana                                      Office of Corporation Counsel
Samuel D. Krahulik                                         Indianapolis, Indiana
The Hastings Law Firm                                      Kevin C. Schiferl
Indianapolis, Indiana                                      Anthony W. Overholt
                                                           Alexander P. Will
                                                           Darren A. Craig
                                                           Frost Brown Todd LLC
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Barbara Hill, individually and as                          July 20, 2016
guardian of Charles Hill,                                  Court of Appeals Case No.
incapacitated, and as next friend                          49A02-1509-CT-1288
of Alexandra Hill, a minor, and                            Appeal from the Marion Superior
Macey Hill, a minor, by her next                           Court
friend and mother, Tenise Hill-                            The Honorable James A. Joven,
Cornelius,                                                 Judge
Appellant-Plaintiffs,                                      Trial Court Cause No.
                                                           49D13-1204-CT-16235
        v.

Erich E. Gephart, City of
Indianapolis, and Marion
County Sheriff’s Department,
Appellee-Defendants



Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016   Page 1 of 5
      Mathias, Judge.


[1]   Appellees Erich E. Gephart, City of Indianapolis, and the Marion County

      Sheriff’s Department (collectively “the Appellees”) petition for rehearing of our

      court’s May 6, 2016 decision, in which we reversed and remanded the trial

      court’s grant of summary judgment in favor of Appellants. Appellees argue that

      no admissible evidence establishes that vegetation prevented Hill from walking

      along the correct side of the roadway and that Hill failed to rebut the

      presumption of negligence raised by his failure to comply with Indiana Code

      section 9-21-17-14. We issue this opinion on rehearing to fully consider

      Appellees’ argument that some of Plaintiff’s designated evidence, such as Bill

      Senefeld’s1 (“Investigator Senefeld”) affidavit and photographs, are

      inadmissible.


[2]   Appellee-Defendants filed a motion to strike the Marion County Sheriff’s Office

      Accident Review Board finding and Investigator Senefeld’s affidavit and

      accompanying photographs in the trial court, arguing that they were

      inadmissible. However, the trial court granted summary judgment in favor of

      appellee-defendants without ruling on its motion to strike inadmissible

      evidence. When a trial court does not specifically rule on a motion to strike

      affidavits, but grants summary judgment, the motion is impliedly overruled.

      Palmer v. State, 363 N.E.2d 1245, 1248 (Ind. Ct. App. 1977). Therefore,




      1
       We strike our classification of Investigator Senefeld as an “expert,” as neither party nor the trial court
      designated him as such.

      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016                 Page 2 of 5
      Investigator Senefeld’s affidavit and photos were properly designated and

      within our purview to consider on appeal.

[3]   Appellees also argue that Investigator Senefeld never testified that the

      photographs were “true and accurate representations of a scene personally

      viewed by that witness.” Specifically, Appellees contend that because

      Investigator Senefeld did not visit and photograph the accident scene until three

      and a half years later that he did not have personal knowledge, and thus the

      photos are irrelevant and prejudicial. The trial court has broad discretion in

      ruling on the admissibility of evidence. Guzik v. Town of St. John, 875 N.E.2d

      258, 265 (Ind. Ct. App. 2007).


[4]   “Evidence is relevant if: (a) it has any tendency to make a fact more or less

      probable than it would be without the evidence; and (b) the fact is of

      consequence in determining the action.” Ind. Evidence Rule 401. This often

      includes facts that merely fill in helpful background information for the jury,

      even though they may only be tangentially related to the issues presented. State

      Farm Mut. Auto. Ins. Co. v. Earl, 33 N.E.3d 337, 341 (Ind. 2015). Investigator

      Senefeld did not visit or photograph the accident scene the evening the accident

      occurred. However, he did have personal knowledge of his visit to the accident

      scene as described in his affidavit, along with the photos that he took on May

      27, 2015. These photographs depict the area where the accident occurred, and

      Investigator Senefeld’s affidavit describes the area as he saw it during his

      investigation. This evidence at the very least provides background information



      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016   Page 3 of 5
      that would be helpful to a jury and thus is relevant under Indiana Evidence

      Rule 401.

[5]   Further, in concluding that genuine issues of material fact precluded the entry

      of summary judgment, we also relied significantly on Charles’s deposition

      testimony which stated:


              Q:     Now, earlier you told me that you would walk or that you
              knew to walk to face traffic when you were walking. If you were
              walking back to your parents’ house, you would be going from
              the east to go to the west, correct?

              A:   Yeah. We walked on the opposite side of the street. When
              we went back, it was the same side.

              Q:       Why did you take the same side?

              A:       Because a tree was down in the road.

                                                        ***

              Q:   I want to ask about this. So that tree that was down was an
              impediment or something that was blocking the way you and
              Macy wanted to walk?

              A:       Yeah.


      Appellant’s App. pp. 55; 57.




      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016   Page 4 of 5
[6]   Although Appellees argue that a tree is not vegetation, a tree is actually

      vegetation.2 In addition, Charles testified that the usual path he would have

      taken to walk back home was blocked. For purposes of clarification, this

      obstruction was a tree in the road. We emphasize the more important fact in

      this situation is that the blockage caused Charles and Macey to take a different

      route, not necessarily whether the blockage was caused by a tree or any other

      type of vegetation. Therefore, Charles’s testimony creates a genuine issue of

      material fact as to whether he was contributorily negligent in walking on the

      right side of the road instead of the left side as Indiana Code section 9-21-17-14

      requires. Again, it is Charles’s burden at trial to rebut the presumption that he

      was contributorily negligent and acted reasonably in violating the statute.


[7]   Because Investigator Senefeld’s declaration and photos were admissible and we

      relied on Charles’s testimony to conclude that a genuine issue of material fact

      existed as to his contributory negligence, we grant Appellee’s motion for re-

      hearing for the limited purpose of clarification and affirm our May 6, 2016

      opinion in all other respects.


      Kirsch, J., concurs.

      Brown, J., would grant rehearing for the purpose of affirming the trial court, in
      accordance with her dissent expressed in the May 6, 2016 opinion.




      2
       Vegetation is defined as plants in general; or plants that cover a particular area. See http://www.merriam-
      webster.com/dictionary/vegetation. A tree is defined as a usually tall plant that has a thick, wooden stem,
      and many large branches. See http://www.merriam-webster.com/dictionary/tree.

      Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016             Page 5 of 5
