FOR PUBLICATION

                                                                   Jul 30 2014, 9:57 am




ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

DOUGLAS E. SAKAGUCHI                         ERIC W. VON DECK
JEROME W. MCKEEVER                           MARK D. KUNDMUELLER
Pfeifer Morgan & Stesiak                     Tuesley Hall Konopa, LLP
South Bend, Indiana                          South Bend, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

FREDERICK BAZELEY, JR.,                      )
As Personal Representative of the            )
ESTATE OF FREDERICK T. BAZELEY, III,         )
                                             )
      Appellant/Plaintiff,                   )
                                             )
             vs.                             )      No. 20A03-1401-CT-36
                                             )
ROBERT PRICE and                             )
SAMPSON FIBERGLASS, INC.,                    )
                                             )
                                             )
      Appellees/Defendant.                   )


                   APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Evan S. Roberts, Judge
                            Cause No. 20D01-1205-CT-86


                                    July 30, 2014

                             OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
                                        Case Summary

       In fall 2011 a deadly accident occurred when Frederick T. Bazeley III’s motorcycle

collided with a thirty-seven-foot trailer being hauled by Robert Price’s flatbed truck.

Frederick Bazeley Jr., as Personal Representative of the Estate of Frederick T. Bazeley III

(“Bazeley’s Estate”), now appeals the trial court’s grant of summary judgment in favor of

Price and Sampson Fiberglass, Inc. in Bazeley Estate’s action for wrongful death as a result

of the collision. Bazeley’s Estate contends that the trial court erred in granting summary

judgment in favor of Price and Sampson Fiberglass because there is a genuine issue of

material fact concerning the cause of the collision. Finding a genuine issue of material fact

regarding causation, we reverse and remand.

                              Facts and Procedural History

       Around 1:45 p.m. on September 20, 2011, Price, who was employed as a driver by

Sampson Fiberglass, was returning to the Sampson Fiberglass plant at 2424 North Home

Street in Mishawaka, Indiana. Appellant’s App. p. 35. Price was driving a Ford F-350

flatbed truck, hauling a thirty-seven-foot trailer. Id. Price was traveling eastbound on

McKinley Avenue and was waiting to make a left turn at the intersection of McKinley

Avenue and Home Street. Id. At the same time, Bazeley was driving his Harley Davidson

motorcycle westbound on McKinley toward the same intersection. The speed limit was

forty-five miles per hour. Id. at 86.

       Robert Davis was also driving westbound on McKinley toward its intersection with

Home. Id. at 88. Bazeley pulled his motorcycle next to Davis’s passenger-side door at a

red light at the intersection of McKinley and Capital, which is a few blocks east of the


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McKinley and Home intersection. Id. McKinley has two westbound lanes at this point,

but just west of this intersection the lanes begin to merge into a single westbound lane. Id.

When the light turned green, Davis and Bazeley accelerated forward. Id. A truck and car

were in front of Bazeley’s motorcycle. Id. As Bazeley’s lane began to merge into Davis’s

lane, the car in front of Bazeley pulled in front of Davis’s car. Id. The lanes had already

merged when Bazeley passed Davis, so Bazeley drove on the white line of the shoulder of

the road. Id. Davis was traveling fifty miles per hour when Bazeley passed him on the

right. Id. at 89. Seconds after Bazeley passed Davis, Davis heard a squealing noise and

crash. Id.

       Price had been waiting to make a left turn at the intersection of McKinley and Home.

Id. at 35. Here, Price activated his left turn signal, came to a complete stop, and waited for

a break in westbound traffic. Id. When Price began his turn, he could see traffic

approaching in the distance on westbound McKinley, but he believed that traffic was far

enough away that it did not present a hazard. Id. at 36. Because a school bus was stopped

at the intersection facing south on Home, Price made a wide-left turn. Id. at 42, 91. As

Price made the left turn, Bazeley, approaching the intersection from westbound McKinley,

attempted to avoid crashing into the trailer by applying the brake; this resulted in a tire skid

mark on the road. Id. at 108. After skidding 198 feet, Bazeley’s motorcycle overturned

onto its right side and slid another fourteen feet into the path of the truck. Id. at 36, 108.

That is, before Price completed his turn, Bazeley’s motorcycle collided with the rear

bumper of the pick-up truck and the front-end of the trailer Price was pulling. Id. at 36,

108. Bazeley was dragged by the trailer for approximately fourteen feet. Id. at 108.


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Bazeley’s body remained in contact with his motorcycle as it was dragged, and he came to

rest on top of his motorcycle. Id. Price stated that before the collision, he did not see or

hear Bazeley’s motorcycle approaching the intersection. Id. at 36. However, although

Davis could no longer see Bazeley’s motorcycle, he was able to hear the screeching of

Bazeley’s tires as the motorcycle skidded into the intersection. Id. at 90. Bazeley died as

a result of his injuries. Id. at 15.

       Price and Sampson Fiberglass, as well as Bazeley’s Estate, retained mechanical

engineers to reconstruct and determine the cause of the accident. Price and Sampson

Fiberglass retained Daniel R. Aerni, P.E., of MV Engineering Company, and Bazeley’s

Estate retained R. Matthew Brach, Ph.D., P.E., of Brach Engineering, LLC. Id. at 41, 106.

The experts agreed that Bazeley was a minimum of 342 to 356 feet away from the location

of impact when Price initiated his turn. Id. at 39, 109. The experts further agreed that

Bazeley applied the brakes of his motorcycle before the collision, which left a minimum

198-foot skid mark on the road. Id. at 38, 108.

       The speed limit on McKinley Avenue was forty-five miles per hour, and both

experts agreed that Bazeley was traveling in excess of the speed limit. Id. at 86. Aerni

calculated that Bazeley’s pre-skid speed was at least sixty-nine miles per hour, his speed

was the sole cause of the accident, and if Bazeley had been traveling forty-five miles per

hour, there would have been no collision. Id. at 39. Aerni also found that Price would

have needed an additional 1.19 seconds in order to complete the turn to the point where the

westbound lane would have been clear. Id. at 51. In contrast, Brach calculated that

Bazeley’s pre-skid speed was between fifty-nine and sixty-six miles per hour, but it could


                                             4
have been as low as fifty-six miles per hour. Id. at 110. Brach also determined that even

if Bazeley had been traveling the speed limit of forty-five miles per hour, the back of the

trailer still would have occupied one-half to one-quarter of the lane in which Bazeley was

traveling, and that light braking would have delayed Bazeley’s motorcycle enough for the

trailer to clear the lane. Id. at 109.

       In May 2012 Bazeley’s Estate filed a complaint for wrongful death against Price

and Sampson Fiberglass. The complaint alleged that the accident occurred as a result of

the “carelessness and negligence” of Price while operating his “trailer-tractor” in the course

and scope of his employment with Sampson Fiberglass. Id. at 15. Price and Sampson

Fiberglass filed a motion for summary judgment asserting that “the uncontradicted

evidence establishes that Price did not breach a duty to Bazeley and that Bazeley’s own

negligence was the sole cause of his injuries and death.” Id. at 23. The motion further

asserted that because Price was not negligent, Sampson Fiberglass could not be held liable

under the doctrine of respondeat superior. Id. at 31.

       Following a hearing in January 2014, the trial court granted Price and Sampson

Fiberglass’s motion for summary judgment on the issues of causation and apportionment

of fault. Id. at 8-14. The court found in part:

               The undisputed facts show that [Price] stopped at the intersection,
       signaled he was turning, and after observing oncoming traffic at a distance
       began his turn. [Price] did not violate the [left-turn] statute. No vehicle was
       either in the intersection or so close to constitute an immediate hazard. The
       evidence suggests that the motorcycle was not at the front of the line when
       [Price] initiated his turn. Even if the motorcycle was at the front of the line
       of traffic at the time [Price] began his turn, the fact that the motorcycle was
       able to skid 198 feet and slide another 14 feet, shows that the motorcycle was
       in fact a distance from the intersection.


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               [Price] did not see the motorcycle approaching, but he did see traffic
       at a distance. Further, the motorcycle passed vehicles on the right side of the
       road. The motorcycle was traveling at a high rate of speed. No evidence has
       been designated that [Price] was in any way negligent. [Price] need not
       assume in exercising his duty of reasonable care that other drivers will be
       breaking the law. [Bazeley’s] argument that a collision occurred is simply
       not sufficient.
               Further, the only reasonable conclusion for a trier of fact is that
       [Bazeley’s] speed was the cause of the accident. Even in the light most
       favorable to [Bazeley], [his] expert opined that the motorcycle was 212 feet
       from the point of impact (198 + 14) when he began to brake, that he was
       traveling 14 miles over the posted speed limit, and that had he been traveling
       at 45 miles per hour, he would have been to the intersection after [Price] had
       cleared the road with only slight braking. [Bazeley] had a duty to drive
       appropriate for conditions and within the posted speed limit.
               Although it is true that a violation of the speed limit “would not ipso
       facto render [Bazeley] 100% or even 50% at fault,” here [Price] has presented
       expert evidence that [Bazeley’s] speed was the cause of this accident [and
       Bazeley] has not presented any fact that rebuts this evidence. [Bazeley’s]
       expert did not testify as to causation, but did state had [Bazeley] been
       travelling 45 miles per hour, the posted speed limit, he would have had to
       break only slightly to give [Price] enough time to exit the roadway. The trier
       of fact could not but conclude that [Bazeley] was at least 50% at fault.

Id. at 12-13.

       Bazeley’s Estate appeals the trial court’s entry of summary judgment in favor of

Price and Sampson Fiberglass.

                                 Discussion and Decision

       When appellate courts review the grant or denial of summary judgment, the

reviewing court stands in the shoes of the trial court and applies the same methodology.

Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 160 (Ind. 2014). The moving party has the

burden of making a prima facie showing from the designated evidentiary matter that there

are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

Id. If the moving party satisfies this burden, then the non-moving party must show from


                                              6
the designated evidentiary matter the existence of a genuine issue of fact precluding

summary judgment. Id. In ruling on summary judgment, a court considers only the

designated evidentiary matters, and all evidence and inferences are reviewed in the light

most favorable to the non-moving party. Id. Here, the trial court entered an order

containing facts and conclusions thereon. Miller v. Yedlowski, 916 N.E.2d 246, 249 (Ind.

Ct. App. 2009), trans. denied. This, however, does not change the nature of our review on

summary judgment. Id. In the summary-judgment context, the entry of specific facts and

conclusions aids our review by providing us with a statement of reasons for the trial court’s

decision, but it has no other effect. Id.

       Bazeley’s wrongful-death complaint alleges negligence on the part of Price. “In

negligence cases, summary judgment is rarely appropriate.” Rhodes v. Wright, 805 N.E.2d

382, 387 (Ind. 2004). “This is because negligence cases are particularly fact sensitive and

are governed by a standard of the objective reasonable person—one best applied by a jury

after hearing all of the evidence.” Id. Negligence contains three elements: (1) a duty owed

by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury

to the plaintiff as a proximate result of the breach. Key v. Hamilton, 963 N.E.2d 573, 579

(Ind. Ct. App. 2012) (citing Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007)),

trans. denied.

       The court stated that Bazeley “had a duty to drive appropriate for the conditions,”

which would include driving the speed limit, but Price did as well. Appellant’s App. p. 13.

Indiana Code section 9-21-8-30 provides the specific standard of care in this case:

       A person who drives a vehicle within an intersection intending to turn to the
       left shall yield the right-of-way to a vehicle approaching from the opposite

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        direction that is within the intersection or so close to the intersection as to
        constitute an immediate hazard. After yielding and giving a signal as
        required by this chapter, the person who drives the vehicle may make the left
        turn, and the persons who drive other vehicles approaching the intersection
        from the opposite direction shall yield the right-of-way to the vehicle making
        the left turn.

Therefore while Bazeley had a duty not to speed, Price also had a duty not to make a left

turn in front of approaching traffic without first being certain that the traffic was not so

close as to present an immediate hazard. And so, the point of contention in this case is who

caused the collision between Bazeley and Price.1

        The trial court ruled that Bazeley failed to produce evidence from which a

reasonable jury could find in Bazeley’s favor on the element of causation, stating “the only

reasonable conclusion for a trier of fact is that [Bazeley’s] speed was the cause of the

accident. Appellant’s App. p. 13. “Causation is an essential element of a negligence

claim.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002), trans.

denied. The injurious act must be both the proximate cause and the cause in fact of the

injury. Id.; see also City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222,

1243 (Ind. 2003), (“Under standard negligence doctrine, in order for a defendant to be

liable for a plaintiff's injury, the defendant’s act or omission must be deemed to be a

proximate cause of that injury.”). “Generally, causation, and proximate cause in particular,

is a question of fact for the jury’s determination.” Correll, 783 N.E.2d at 707; see also

Smith v. Beaty, 639 N.E.2d 1029, 1035 (Ind. Ct. App. 1994) (“The question of causation is




        1
          Because the elements of breach and causation are so closely intertwined in this case, we address
only the causation issue. However, the decision is applicable to both.
                                                    8
. . . usually inappropriate for summary disposition because it often requires a weighing of

disputed facts.”).

       In support of their motion for summary judgment, Price and Sampson Fiberglass

used their expert’s calculation that Bazeley was traveling at least sixty-nine miles per hour

and Price’s testimony that he had not seen Bazeley when he looked at oncoming traffic

before turning. Price and Sampson Fiberglass argue that when Price began his left turn

Bazeley was on the right side of the road passing vehicles and therefore Price could not

have seen Bazeley, claiming “the uncontradicted evidence makes it clear that Bazeley had

not yet passed the other westbound vehicles when Price began his turn.” Appellees’ Br. p.

12. But this is not an established fact, and the designated evidence does not establish where

Bazeley was when Price began his turn, or why Price did not see Bazeley.

       However, Price was aware that the speed limit on the road was forty-five miles per

hour and that the oncoming traffic was approaching at a high rate of speed. Davis stated

that he was traveling at fifty miles per hour and other cars had merged in front of him when

the road narrowed to one lane. Price also knew he was pulling a thirty-seven-foot trailer

and that he had to make an exceptionally wide turn due to the placement of a school bus at

the intersection.

       And although both parties’ experts agree that Bazeley was driving above the speed

limit, they disagree about how fast he was driving. Price and Sampson Fiberglass contend

that the difference as to Bazeley’s actual speed “is not a material question of fact”;

however, that is precisely what it is. Id. at 17. If Price and Sampson Fiberglass’s argument

is that Bazeley’s speed was the sole cause of the accident, then his speed is critical in


                                             9
determining causation. Price’s expert calculated Bazeley’s speed at sixty-nine miles per

hour, whereas the expert for Bazeley’s Estate calculated a range of fifty-nine to sixty-six

miles per hour, but possibly as low as fifty-six miles per hour. Therefore Bazeley could

have been driving anywhere from eleven to twenty-four miles per hour over the speed limit.

In claiming that Bazeley’s speed alone was the proximate cause of the accident, we find

this disparity to be material.

        Again, questions concerning negligence, causation, and reasonable care are more

appropriately determined by the trier of fact. Wilkerson v. Harvey, 814 N.E.2d 686, 690

(Ind. Ct. App. 2004), trans. denied. The designated evidence creates questions of fact as

to where Bazeley was when Price began his turn, why Price did not see Bazeley, and the

speed at which Bazeley was traveling as he approached the intersection. We consequently

find that Price and Sampson Fiberglass did not meet their burden of establishing that no

genuine issues of material fact exist. For these reasons, the trial court erred in granting

Price and Sampson Fiberglass’s motion for summary judgment in finding Bazeley to be

the sole cause of the accident; this is a determination for a jury.2 We therefore reverse the

judgment and remand to the trial court.

        Reversed and remanded.


        2
            Bazeley’s Estate also argues that the trial court erred in granting summary judgment in favor of
Price and Sampson Fiberglass on the issue of apportionment of fault. See Appellant’s App. p. 13 (“The
trier of fact could not but conclude that Plaintiff was at least 50% at fault.”). The apportionment of fault is
uniquely a question of fact to be decided by the fact-finder. Dennerline v. Atterholt, 866 N.E.2d 582, 598
(Ind. Ct. App. 2008), reh’g denied. At some point the apportionment of fault may become a question of
law for the court. Id. But that point is reached only when there is no dispute in the evidence and the fact-
finder is able to come to only one logical conclusion. Id. Given that the evidence shows that Price pulled
his thirty-seven-foot trailer in front of Bazeley’s motorcycle at 1:45 p.m., there is no evidence that his view
was obstructed, and the estate’s expert report shows that had Bazeley been driving the speed limit, Price’s
trailer still would have occupied up to one-half of the westbound lane, we find that the trial court also erred
in entering summary judgment in favor of Price and Sampson Fiberglass on this issue.
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NAJAM, J., and BROWN, J. concur.




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