MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 22 2017, 5:30 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                ATTORNEYS FOR APPELLEES
Christopher R. Blackburn                                J. Blake Hike
David A. Singleton                                      Michael C. Ross
Blackburn & Green                                       Carson Boxberger LLP
Fort Wayne, Indiana                                     Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kimberly Flueckiger and                                 December 22, 2017
Mark Flueckiger,                                        Court of Appeals Case No.
Appellants-Petitioners,                                 90A02-1707-CT-1520
                                                        Appeal from the Wells Circuit
        v.                                              Court
                                                        The Honorable Kenton W.
Maurice Englehardt,                                     Kiracofe, Judge
The City of Bluffton, and                               Trial Court Cause No.
Indiana Department of                                   90C01-1507-CT-10
Transportation d/b/a INDOT,
Appellees-Respondents.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017        Page 1 of 7
                                Case Summary and Issue
[1]   Kimberly and Mark Flueckiger (the “Flueckigers”) appeal the trial court’s entry

      of summary judgment in favor of the City of Bluffton. The Flueckigers raise

      one issue for our review: whether the trial court erred in entering summary

      judgment in favor of the City of Bluffton. Concluding the trial court did not err,

      we affirm.



                            Facts and Procedural History
[2]   Indiana State Road 1 is a thoroughfare that passes through Bluffton, Indiana.

      In Bluffton, State Road 1 has three lanes, a northbound lane, a southbound

      lane, and a center lane. The northbound and southbound lanes are eleven feet

      wide and the center lane is thirteen feet wide. As the road progresses through

      Bluffton, it intersects with Townley Street, which travels east and west. Near

      this intersection, the City of Bluffton placed a two and one-half foot wide

      triangular “A-Frame” sign (“Sign”) to warn drivers of a sinkhole that developed

      near a street drain. The City of Bluffton placed the Sign in the northbound lane

      and against the curb to alert drivers to navigate around the sinkhole.


[3]   On June 17, 2014, a warm and sunny day, Maurice Englehardt traveled north

      on State Road 1 into Bluffton. Englehardt had driven on State Road 1 on prior

      occasions, and, on this occasion observed the Sign as he approached from two

      blocks away. Englehardt testified the Sign was located in the middle of the

      northbound lane on this occasion. There was no traffic in front of Englehardt


      Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017   Page 2 of 7
      and he was traveling approximately 25 miles per hour as he approached the

      Sign. Despite his prior knowledge of the Sign, Englehardt diverted his eyes

      from the road when he was about fifty feet away from the Sign in order to

      reposition a towel he was sitting on. As he looked back up at the road, he

      simultaneously began to merge into the center lane of State Road 1 to bypass

      the Sign and reached down with his right hand to reposition the towel. Then,

      for reasons he cannot recall, Englehardt’s vehicle entered into the southbound

      lane and struck Kimberly Flueckiger’s vehicle.


[4]   On July 17, 2015, the Flueckigers filed a complaint against Englehardt and the

      City of Bluffton alleging their negligence caused the accident and the

      Flueckigers’ subsequent injuries. On February 3, 2017, the City of Bluffton

      filed its motion for summary judgment; the Flueckigers’ responded with their

      motion in opposition on May 1, 2017. On June 13, 2017, the trial court entered

      summary judgment in favor of the City of Bluffton determining the City of

      Bluffton’s placement of the Sign did not proximately cause the accident. The

      Flueckigers’ now appeal. Additional facts will be added as necessary.



                                Discussion and Decision
[5]   Our standard of review for an appeal from a motion for summary judgment is

      well-settled:


              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
      Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017   Page 3 of 7
              matter of law. 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. Once these two requirements are
              met by the moving party, the burden then shifts to the non-
              moving party to show the existence of a genuine issue by setting
              forth specifically designated facts. Any doubt as to any facts or
              inferences to be drawn therefrom must be resolved in favor of the
              non-moving party. Summary judgment should be granted only if
              the evidence sanctioned by Indiana Trial Rule 56(C) shows there
              is no genuine issue of material fact and that the moving party
              deserves judgment as a matter of law.


      Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)

      (internal quotations omitted).


[6]   In order to recover under a theory of negligence, a party is required to establish

      the following: 1) the defendant owed the plaintiffs a duty of care; 2) the

      defendant breached that duty by failing to conform his conduct to the requisite

      standard of care; and 3) the breach was the proximate cause of the plaintiffs’

      injuries. Id. The Flueckigers’ theory is the City of Bluffton was negligent in its

      placement of the Sign, and that negligence proximately caused their injuries.


[7]   An act is the proximate cause of another’s injury when the injury is a natural

      and probable consequence of a negligent act which, in the totality of the

      circumstances, could have been reasonably foreseen or anticipated. Straley v.

      Kimberly, 687 N.E.2d 360, 364 (Ind. Ct. App. 1997), trans. denied. To be

      considered the proximate cause of another’s injury, “the negligent act must

      have set in motion a chain of circumstances which in natural and continuous


      Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017   Page 4 of 7
      sequence lead to the resulting injury.” Id. But, the intervention of an

      independent, superseding negligent act will relieve the original negligent actor

      of legal liability if that act could not have been reasonably foreseen. Id.

      Although the issue of proximate cause is often determined by the trier of fact,

      where it is clear the injury was not foreseeable under the circumstances and that

      imposing liability upon the original negligent actor would not be justified, the

      determination of proximate cause may be made as a matter of law. Carter v.

      Indianapolis Power & Light Co., 837 N.E.2d 509, 521 (Ind. Ct. App. 2005), trans.

      denied.


[8]   In support of their argument that the placement of the Sign was the proximate

      cause of their injuries, the Flueckigers contend it was foreseeable Englehardt

      would swerve to avoid an object placed in the roadway by the City of Bluffton,

      lose control of his car, and crash into another motorist. However, the

      Flueckigers’ analysis ignores the pertinent facts of this specific case. See

      Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. App. 1996) (noting the analysis

      of the foreseeability element of proximate cause focuses on the facts of the

      actual occurrence), trans. denied. The facts most favorable to the Flueckigers

      reveal that June 17, 2014, was a sunny and warm day with no hostile driving

      conditions to confront. State Road 1 is a three-lane road consisting of a

      northbound lane, a southbound lane, and a center lane. As Englehardt

      approached the intersection of State Road 1 and Townley Street, he observed

      the Sign from about two blocks away. Englehardt was also familiar with the

      Sign, having passed it before. However, he testified it was in the middle of the

      Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017   Page 5 of 7
       lane that day, rather than adjacent to the curb as it had been before. Englehardt

       had no traffic in front of him and was traveling about 25 miles per hour. As he

       approached the Sign, he diverted his eyes from the road to reposition a towel he

       was sitting on. At the same time, he began to merge to the center lane to bypass

       the Sign. He was about fifty feet away from the Sign when he began to merge.

       Englehardt cannot recall what happened next, but his car collided with

       Flueckiger’s car which was traveling in the southbound lane of State Road 1.


[9]    No matter which set of facts regarding the placement of the Sign is accurate, the

       Flueckigers’ injuries are not a foreseeable consequence of the City of Bluffton’s

       actions. Englehardt could have safety maneuvered around the Sign by using

       the center lane and avoided the collision by exercising reasonable care. Thus,

       bypassing the Sign did not require entry into the southbound lane. The City of

       Bluffton was not bound to anticipate a motorist, with prior knowledge of the

       Sign, would observe the Sign from two blocks away and disregard the danger it

       posed by attempting to reposition a towel while simultaneously merging into

       the center lane, lose control of his vehicle, and crash into a motorist in the

       southbound lane. The City of Bluffton’s placement of the Sign did not

       proximately cause the Flueckigers’ injuries.


[10]   Because the undisputed facts fail to demonstrate the City of Bluffton

       proximately cause the Flueckigers’ injuries, we affirm the trial court’s entry of

       summary judgment in favor of the City of Bluffton.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017   Page 6 of 7
                                               Conclusion
[11]   We conclude the trial court did not err in granting the City of Bluffton’s motion

       for summary judgment. Accordingly, we affirm.


[12]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017   Page 7 of 7
