427 N.E.2d 696 (Ind.App. 4 Dist. 1981), 1-581A168, Board of Com'rs of Monroe County v. Hatton

Docket Nº:1-581A168.
Citation:427 N.E.2d 696
Party Name:BOARD OF COMMISSIONERS OF MONROE COUNTY, Indiana, Appellant (Defendant Below), and Tommy J. Hacker, (Defendant Below), v. Melissa HATTON, Appellee (Plaintiff Below), and Jerry E. Hatton and Anna M. Hatton, (Plaintiffs Below).
Case Date:November 02, 1981
Court:Court of Appeals of Indiana

Page 696

427 N.E.2d 696 (Ind.App. 4 Dist. 1981)

BOARD OF COMMISSIONERS OF MONROE COUNTY, Indiana, Appellant

(Defendant Below),

and

Tommy J. Hacker, (Defendant Below),

v.

Melissa HATTON, Appellee (Plaintiff Below),

and

Jerry E. Hatton and Anna M. Hatton, (Plaintiffs Below).

No. 1-581A168.

Court of Appeals of Indiana, Fourth District.

November 2, 1981

Page 697

Robert L. Baker, Baker, Barnhart & Andrews, Bloomington, for appellant (defendant below).

Bunger, Harrell & Robertson, Bloomington, for defendant Hacker.

Thomas A. Berry, Barbara B. Benson, Berry, Bridges, Benson & Benson, Bloomington, for appellee (plaintiff below).

Page 698

YOUNG, Judge.

After a jury trial, plaintiff Melissa Hatton obtained a judgment against defendant Board of Commissioners of Monroe County for the county's alleged negligence in failing to open the view of the curve in question by failing to trim the weeds and natural growth. 1 The county appeals raising the following issues:

1) Whether plaintiff failed to establish:

  1. that the county had a duty to maintain the adjacent area beyond the road;

  2. that the breach of any duty owed by the county to the plaintiff was the proximate cause of her injuries; or

  3. that the plaintiff was not contributorily negligent once an alleged presumption of contributory negligence arose.

2) Whether the trial court erred in refusing the county's instruction on the issue of proximate cause.

We reverse.

The evidence indicates that on May 26, 1979, Hatton, a fourteen year old, was riding her bicycle on the county's East Farr Road toward her home when she glanced back and noticed two vehicles approaching. Hatton's parents had previously instructed her to get off the road surface and stop until any approaching vehicles had passed. Because there was no room to get off Farr Road on the right side, Hatton crossed over to the other side, reaching it at the inside of the curve, got off the road surface and stopped. At this point one of the cars which had been approaching from the rear passed. She glanced back to check the position of the second car and as she turned back around she saw Hacker's truck within a few feet of her. Hacker's truck hit Hatton throwing her some ten to fifteen feet. Hacker had not seen Hatton until shortly before impact because his vision was blocked going into the curve by natural growth, which came within six inches to a foot of the road and reached a height of some ten feet. Hatton suffered severe leg injuries which resulted in lengthy hospitalization, permanent impairment to her right leg, and disfigurement.

Hatton filed a complaint against the county for these injuries claiming that it was negligent in maintaining the growth in the adjacent area of the curve which was the proximate cause of the accident. At the close of the evidence, the county filed a motion for judgment on the evidence claiming that Hatton failed to show a duty owed to her, a breach thereof, or that the alleged breach was the proximate cause of her injuries. The court denied the motion and the jury returned a verdict in favor of Hatton.

The county first argues that the trial court erred in not granting its motion for judgment on the evidence and that there was insufficient evidence to support the verdict. It contends that Hatton failed to establish that the county had a duty to maintain the area where the accident occurred which was the proximate cause of her injuries. We agree. Hatton failed to establish a prima facie case on a statutory duty and failed to produce sufficient evidence to support the verdict on the common law duty as instructed.

The burden of proving negligence lies on the plaintiff. Hi-Speed Auto Wash, Inc. v. Simeri (1976) 169 Ind.App. 116, 346 N.E.2d 607. Before a defendant can be held liable for negligence it first must be shown that the defendant owes a duty to the plaintiff. Roberts v. Indiana Gas & Water Co., (1966) 140 Ind.App. 409, 218 N.E.2d 556. In the absence of a duty, there can be no breach of a duty and no negligence or liability based upon the breach of duty. Barbre v. Indianapolis Water Co., (1980) Ind.App., 400 N.E.2d 1142. If a duty and breach thereof is proven, plaintiff must also establish the negligence as the proximate cause of the injury. See, Candlelight Homes Inc. v. Zornes, (1981) Ind.App., 414 N.E.2d 980. Therefore, Hatton must have affirmatively shown that the county owed her a legal

Page 699

duty to open the view of the road by trimming the natural growth and that the breach thereof proximately caused her injuries.

The county contends that there is no evidence which would establish that it owed this duty to Hatton. Hatton argues that the facts reveal two sources of law which would impose this duty upon the county. Initially, she claims that the county had a common law duty either through its ownership and assumed maintenance of the area or through a more general duty to protect users of its highways from inherently dangerous conditions existing on those highways citing Board of Com'rs of Delaware County v. Briggs, (1975) 167 Ind.App. 96, 337 N.E.2d 852. She also alleges that this duty is imposed under Ind.Code Section 32-10-4-2.

The duty to protect highway users from dangerous conditions on highways may or may not extend to obstructing growth beyond the boundaries of the county's highways or rights of way. If the duty does extend to this situation, the court may not have erred in submitting this case to the jury. However, we need not decide this question because the instruction given, without objection, imposed this duty only if the plaintiff established that the county either owned the area or had assumed responsibility for its maintenance. Once the instruction is given to the jury it becomes the law of the case when no...

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