Board of Com'rs of Monroe County v. Hatton

• Decision Date: 02 November 1981
• Docket Number: No. 1-581A168,1-581A168
• Citation: 427 N.E.2d 696
• Parties: 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).
• Court: Indiana Appellate Court

Page 696

427 N.E.2d 696

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.

Nov. 2, 1981.

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).

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:

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

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

c) 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 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 objection is made. D.D.R. v. Davis, (1980) Ind.App., 411 N.E.2d 722. Thus, the question of whether the evidence is sufficient to sustain the verdict on this theory must be evaluated upon the basis of the law as set out in the instruction.

The jury instruction on the county's common law duty to maintain adjacent areas of its roads specifically required Hatton to prove that the county either owned the adjacent area or had assumed responsibility for the maintenance of the adjacent area where the accident occurred.

Hatton offered no evidence that the county owned the adjacent area. The county, however, offered evidence indicating that neither a record of ownership of the adjacent areas nor any legal description of the road itself could be found which is a common situation for highways established by use. Where boundary lines have never been established by competent authority, the width of the road established by use is limited to that portion actually travelled and excludes any berm or shoulder. ² Evans v. Bowman, (1915) 183 Ind. 264, 108 N.E. 956; Anderson v. City of Huntington, (1907) 40 Ind.App. 130, 81 N.E. 223. Because no evidence supports a reasonable inference of county ownership of the adjacent areas, any liability based upon the common law duty must depend upon evidence supporting a reasonable inference of an assumption of the duty to maintain the area.

The evidence revealed that the county policy was to mow an area about three feet wide along the side of Farr Road at least twice a year. The county highway superintendent testified that "the county had not necessarily cut everything on each side of Farr Road", but that "it had mowed each side of Farr Road." He further suggested that the daily responsibility, if one existed, would be mowing an area that would interfere in any way with the travelled portion of the road if the weeds were within the width of the mower. Testimony from local residents, directed to the actual scene of the accident, indicated that the growth had never been cut by anyone, including the county, since at least 1972.

Indiana recognizes that a duty may be imposed upon one who by affirmative conduct or agreement assumes to act, even gratuitously, for another to exercise care and skill in what he has undertaken. Clyde E. Williams & Assoc., Inc. v. Boatman, (1978) Ind.App., 375 N.E.2d 1138. However, in such a case, precisely what has been undertaken must be determined because liability is no broader than the actual duty assumed. Ainey v. Realton Amusement Co., (1925) 135 Wash. 56, 236 P. 801, 41 A.L.R. 263; see 39 AM.JUR.2d Negligence §§ 361, 745.

There is no evidence of any agreement. The only evidence of affirmative conduct is that the county had mowed some of each side of Farr Road for the purpose of removing weeds within the mower's width which might interfere with the travelled portion. Hatton argues that this is sufficient to impose a duty to maintain all adjacent areas of the road and to open the view of the curve by trimming anything necessary for this purpose. She further asserts that the fact that the curve in question had not been mowed is only significant to the extent it indicates the county's lack of due care. While this statement may be true when a duty has already been established, it is not the case when liability is being founded upon an assumed duty. In this case, it bears significantly on the question of the county's legal duty (what was assumed) which necessarily precedes the question of due care. ³

Accepting the testimony that the county had never mowed the curve as fact, as Hatton does in her brief, it shows the county did not undertake to mow or control this curve. The county's affirmative conduct did not evidence a voluntary undertaking to mow any more than that which was performed. A duty of the nature and extent which would be necessary to sustain Hatton's verdict (to clear the view all the way back for many feet) was far beyond the scope of the county's undertaking to mow a limited area and finds no support in the record. Therefore, no liability can be found upon a common law assumed duty to maintain this curve.

Even assuming that the county gratuitously assumed responsibility for maintaining this curve, the situation presented...