Bailey v. L. W. Edison Charitable Foundation of Grand Rapids, Inc., 1071A199

• Decision Date: 21 June 1972
• Docket Number: No. 1071A199,No. 3,1071A199,3
• Parties: Pryce H. BAILEY and Virgil O. Dudley, Plaintiffs-Appellants, v. L. W. EDISON CHARITABLE FOUNDATION OF GRAND RAPIDS, INC., a Michigan Corporation, et al., Defendants-Appellees
• Court: Indiana Appellate Court

Page 141

284 N.E.2d 141

152 Ind.App. 460

Pryce H. BAILEY and Virgil O. Dudley, Plaintiffs-Appellants, v. L. W. EDISON CHARITABLE FOUNDATION OF GRAND RAPIDS, INC., a Michigan Corporation, et al., Defendants-Appellees.

No. 1071A199.

Court of Appeals of Indiana, Division No. 3.

June 21, 1972.

Rehearing Denied Aug. 17, 1972.

Clarence Borns, Call, Call, Borns & Theodoros, Gary, for plaintiffs-appellants.

Samuel J. Furlin, Spangler, Jennings, Spangler & Dougherty, Gary, for appellees L. W. Edison Charitable Foundation of Grand Rapids, Inc., Robert M. Dison, William H. Edison and John S. Edison, doing business under the trade name and style of L. W. Edison Company, a Michigan Co-partnership.

Edmond J. Leeney, Galvin, Galvin & Leeney, Hammond, for appellees Gildardo Barrera, Robert R. Reinhardt and City of Gary.

HOFFMAN, Chief Judge.

This appeal arises from adverse judgments in two causes of action brought by the natural fathers of two deceased minors for the allegedly negligent death of their sons. These causes of action were consolidated on appeal. The two complaints filed by plaintiffs-appellants, Pryce H. Bailey and Virgil O. Dudley, each named as defendants the City of Gary and two police officers thereof, Gildardo A. Barrera and Robert R. Reinhardt; the L. W. Edison Charitable Foundation of Grand Rapids, Inc. (Edison); and Robert M. Edison, William H. Edison and John S. Edison, doing business under the trade name and style of L. W. Edison Company (also referred to herein as Edison).

The complaints filed by Bailed and Dudley each alleged, inter alia, that the defendants were guilty of negligence which was the direct and proximate cause of the death of their sons in that Barrera and Reinhardt, as Gary Police Officers, negligently and unreasonably engaged in a highspeed pursuit of the car in which their deceased sons were passengers; that the City of Gary negligently, needlessly and wantonly failed to instruct their police officers of the danger and the probability of danger to passengers created by any high-speed pursuit into a dangerous and hazardous area of a new highway construction and that Edison, as highway contractors constructing a new third lane on Interstate Highway 80, negligently, heedlessly and wantonly failed to light and barricade an unpaved portion of the new third lane.

The City of Gary, Barrera and Reinhardt filed a motion for summary judgment against plaintiff-Bailey, and a motion for summary judgment against plaintiff-Dudley. Attached to each of the two motions were the affidavits of Barrera and Reinhardt stating, in effect, that on June 30, 1968, the two police officers of the City of Gary, Indiana, were on patrol duty from twelve o'clock midnight until eight o'clock A.M. At about 1:15 A.M. at 32nd and Grant, Reinhardt, the driver of the police car, was forced to slam on the brakes, 'although we had the green light', to avoid a collision with a 1960 Chevrolet 'that ran the red light going north on Grant Street at about 75--80 miles per hour.'

Reinhardt and Barrera then turned on their red flasher light and started after the speeding car which turned into Interstate 80 in an eastbound direction. The police car was approximately three-fourths of a mile behind the speeding automobile, and as the police car entered Interstate 80, Reinhardt and Barrera turned on the 'yelper.'

The remainder of the affidavits read as follows:

'The car we were after was then a good distance ahead of us and I could see a car cutting back and forth from one lane to another. We were going 80 Miles per hour and the car was pulling away from us. Our Unit would not go any faster than 80 miles per hour.

'When we first saw the car at 32nd and Grant Street we idnetified (identified) it as a 1960 Chevrolet. We continued chasing the car east on I--80 and we intended to vive (give) up the chase at I--65 as we had lost sight of the car. Due to our speed we missed the I--65 turn and had to continue east on I--80. We intended then to get off at Central Avenue interchange. As we approached that interchange we saw what we thought was smoke on the road ahead. We then continued east on I--80 and at the top of the viaduct of I--80 and Central Avenue we found a 1960 Chevrolet smashed up. It had run into a torn-up area of the lane next to the median strip. There was a large hole which the car went into, after knocking down steel barrels and many flashers on construction horses. The car we found smashed was the same car that ran the red light and was the one we were chasing. We never lost sight of the car until we decided to abandon the chase near the Central Avenue exchange which was west of the scene of the collision.

'We found at the scene that the car was occupied by three yound men who we learned were Timothy W. Dudley, Pryce E. Bailey and James T. Kokoris.'

In response to the motions for summary judgment Bailey and Dudley each filed a verified counter-affidavit of Sue Gall which, omitting caption and formal parts, reads as follows:

'1. That I have personal knowledge of the matters contained in the affidavits of Gary Police Officers Gilardo A. Barrera and Robert Reinhardt.

'2. That on June 30, 1968, from the window of my residence I could and did observe the Highway I--80 viaduct which was the scene of the crash of the vehicle in which decedent was a passenger as well as Highway I--80 west of the scene of the crash.

'3. That the Gary Police cruiser occupied by Officers Gilardo A. Barrera and Robert Reinhardt never gave up or broke off its chase of the vehicle in which the decedent was a passenger, had already passed the Central Avenue interchange and was in full pursuit behind the vehicle in which decedent was a passenger with its siren on, red lights flashing and proceeding at an unreduced rate of speed.'

The trial court sustained the motions for summary judgment filed by defendants Barrera, Reinhardt and the City of Gary.

Thereafter, the causes of action were consolidated and trial to jury was conducted upon the liability of Edison. At the conclusion of the presentation of evidence by plaintiffs-Bailey and Dudley, Edison filed a motion for a judgment on the evidence. Such motion was sustained by the trial court which entered its judgment that 'plaintiffs take nothing by way of their complaint and defendants recover their costs in this action.'

Bailey and Dudley timely filed their motion to correct errors which was overruled by the trial court, and have perfected this appeal. On appeal there are two controlling issues. The first issue is whether the trial court erred in entering summary judgment in favor of the City of Gary, Barrera and Reinhardt. The second issue is whether the trial court erred in entering judgment on the evidence in favor of Edison.

With regard to the propriety of granting a summary judgment, the Appellate Court in Wozniczka v. McKean (1969), 144 Ind.App. 471, at 481, 247 N.E.2d 215, at 220, 17 Ind.Dec. 401 (transfer denied), stated:

'The function and duty of the trial court is simply stated in Vol. 3, Federal Practice and Procedure, Barron & Holtzoff (Wright Ed.), § 1236, at page 157, which states:

"On a motion for summary judgment, the formal issues presented by the pleadings are not controlling and the court must consider the affidavits and other matters presented by the parties to determine whether the motion should be granted. It has been stated that the court should take the pleadings as they have been shaped to ascertain what issues of fact they make and then consider the affidavits, depositions, admissions, answers to interrogatories and other similar material to determine whether any of the issues are real and genuine. On such a motion the court considers the entire setting of the case and all papers of record. The pleadings as a whole and not merely the complaint are considered. In addition to the pleadings the court considers affidavits, admissions, stipulations, depositions and answers to interrogatories which are submitted for or against the motion."

We have examined the pleadings filed in the trial court and conclude that only two issues were formed thereby with respect to the City of Gary, Barrera and Reinhardt. One is whether the officers, Barrera and Reinhardt, negligently and proximately caused the death of the deceased sons of the plaintiffs. The second is whether the City of Gary proximately caused the death of plaintiff's sons by failing to instruct their police officers of the dangers of a high-speed chase.

The record before us discloses of facts whatsoever pertaining to whether or not the City of Gary instructed its police officers as to high-speed pursuits nor was there any evidence that such failure, if there was one, was the proximate cause of the accident. Therefore, summary judgment was properly entered on this issue.

With regard to whether the officers negligently and proximately caused the death of the occupants of the car, the affidavits filed by the parties, as hereinabove set forth, show the existence of disputed fact, to-wit: Whether at the time of the accident, the officers were pursuing the fleeing vehicle.

This fact, although in dispute, has no bearing on the negligence of the officers. Even assuming the officers were in full pursuit at the time of the accident, there is presented no genuine issue of fact as to the officers' negligence in maintaining such pursuit. The issue is not whether the police were in pursuit of an escaping car. The issue is whether the police officers, in pursuing the car, were negligent and the proximate cause of the death of plaintiffs' sons.

Actionable negligence may only be maintained by the showing of a duty, a breach thereof, and an injury as the proximate result of the breach. Chicago, Indianapolis and Louisville R. Co. v. Carter (1971), Ind.App., 274 N.E.2d 537, 27 Ind.Dec. 455.

Appellants correctly contend that a duty of care is imposed on the drivers of emergency vehicles by IC 1971, 9--4--1--25, Ind.Ann.Stat. §...