Brockmeyer by Brockmeyer v. Fort Wayne Public Transp. Corp., 92A03-9206-CV-182

• Citation: 614 N.E.2d 605
• Decision Date: 26 May 1993
• Docket Number: No. 92A03-9206-CV-182,92A03-9206-CV-182
• Parties: 83 Ed. Law Rep. 397 Jeffrey B. BROCKMEYER, by his next friends Larry D. BROCKMEYER and Carol A. Brockmeyer; Larry D. Brockmeyer and Carol A. Brockmeyer, Individually and as parents and natural guardians of Jeffrey B. Brockmeyer, Appellants-Plaintiffs, v. FORT WAYNE PUBLIC TRANSPORTATION CORPORATION, Appellee-Defendant.
• Court: Court of Appeals of Indiana

Page 605

614 N.E.2d 605

83 Ed. Law Rep. 397

Jeffrey B. BROCKMEYER, by his next friends Larry D.

BROCKMEYER and Carol A. Brockmeyer; Larry D. Brockmeyer and Carol A. Brockmeyer, Individually and as parents and natural guardians of Jeffrey B. Brockmeyer, Appellants-Plaintiffs, v. FORT WAYNE PUBLIC TRANSPORTATION CORPORATION, Appellee-Defendant.

No. 92A03-9206-CV-182.

Court of Appeals of Indiana,

Third District.

May 26, 1993.

Rehearing Denied Aug. 19, 1993.

Mark D. Ulmschneider, Steele, Ulmschneider & Eberhard, Fort Wayne, for appellants-plaintiffs.

Martin T. Fletcher, Sr. and Anne Carney, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, for appellee-defendant.

HOFFMAN, Judge.

Appellants-plaintiffs (collectively the Brockmeyers) appeal the trial court's entry of summary judgment in favor of appellee-defendant Fort Wayne Public Transportation Corporation (PTC).

The facts pertinent to the appeal disclose that on February 13, 1989, Jeffrey, who was 13 years old at the time, was struck by a car while he was crossing the road in front of his home on foot. Immediately prior to the incident, Jeffrey had alighted from a PTC bus. PTC provided bus service to and from the school Jeffrey attended.

The PTC bus stopped approximately across from Jeffrey's home on the opposite side of the road. The road was heavily travelled. After debarking, Jeffrey hurried behind the PTC bus. He hesitated but did not stop at the center line of the road. As he continued across the road he was struck by a car. Jeffrey, who sustained severe injuries, has no memory of the incident.

The Brockmeyers instituted this suit in February 1991. The Brockmeyers alleged inter alia that PTC was negligent in the design of its route, in requiring children to cross a heavily travelled road, in using a non-yellow bus, in failing to adequately train drivers, and in failing to take the steps necessary to provide for the safety of the children. On September 23, 1991, PTC filed its motion for summary judgment.

In opposition to the summary judgment, the Brockmeyers filed affidavits and depositions which according to the Brockmeyers raised genuine issues of material fact. A hearing on summary judgment was held in December 1991. On March 11, 1992, the trial court entered judgment for PTC. Although this Court is not bound by the lower court's findings and conclusions when made in a summary judgment proceeding, the court concluded:

"1. The designated evidentiary matter shows that there is no genuine issue as to any material fact concerning the PTC's contributory negligence defense.

2. The PTC is a governmental entity, as defined at Ind.Code Secs. 36-9-4-12; 34-4-16.5-2(c) and (f)(5).

3. The PTC may properly apply the defense of contributory negligence in Plaintiffs' action against the PTC.

4. Assuming normal intelligence and development, a teenager of thirteen years and four months can be contributorily negligent.

5. Jeffrey, given his age, experience, intelligence and physical abilities was contributorily negligent when he was struck by a car on a road of which he was well-acquainted and about which his parents repeatedly cautioned him and instructed him on the proper way to cross, when he failed to allow the traffic on the road to clear before proceeding to cross it; darted out from behind a bus from which he had debarked; and ran into the path of the clearly visible oncoming car."

This appeal ensued.

One issue is dispositive of the appeal: whether the trial court erred in determining that Jeffrey was contributorily negligent as a matter of law and that any alleged contributory negligence was the proximate cause of the injury.

As of the January 1, 1991 amendment to Ind. Trial Rule 56, the parties to a summary judgment proceeding must expressly designate to the trial court evidentiary matter which supports their respective positions. Ind. Trial Rule 56(C) provides:

"At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto...."

Summary judgment is appropriate if the designated evidentiary matter ¹ shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In reviewing a motion for summary judgment, this Court stands in the shoes of the trial court. This Court must liberally construe all designated evidentiary matter in favor of the non-moving party and resolve any doubt against the moving party. State Bd. of Tax Com'rs v. New Energy Co. (1992), Ind.App., 585 N.E.2d 38, 39. Even if it appears that the non-moving party will not succeed at trial, summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences. The existence of a genuine issue of material fact shall not be ground for reversal on appeal unless such fact was designated to the trial court and is included in the record.

See Block v. Lake Mortg. Co., Inc. (1992), Ind.App., 601 N.E.2d 449, 451 n. 1.;

T.R. 56(H).

Generally issues such as negligence, contributory negligence, causation and reasonable care are not appropriate for summary judgment. See Jackson v. Warrum (1989), Ind.App., 535 N.E.2d 1207, 1210-1211, 84 A.L.R.4th 97. When the facts are subject to more than one inference, contributory negligence is most appropriately a matter for the jury. See Maldonado by Maldonado v. Gill (1987), Ind.App., 502 N.E.2d 1371, 1373. Only where the facts are undisputed may the question of negligence become one of law. Id.

In Maldonado, supra, and Baller by Baller v. Corle (1986), Ind.App., 490 N.E.2d 382, 385, Buchanan, J., dissenting, this Court considered the contributory negligence of children who arguably violated statutes prohibiting one from crossing in the middle of the street and not yielding the right of way to oncoming vehicles. It was concluded that in light of the "special consideration" given to children, violation of the statutes alone would not require a presumption of negligence.

Indiana appears to follow the rule that children under the age of seven cannot be guilty of contributory negligence, that those between the ages of seven and fourteen are rebuttably presumed incapable of negligence, and those over fourteen are generally held to the same standard of care as an adult.

Smith v. Diamond (1981), Ind.App., 421 N.E.2d 1172, 1176, 32 A.L.R.4th 43;

see also Maldonado, supra, 502 N.E.2d at 1373, and

Baller, supra, 490 N.E.2d at 385.

Regardless of the presumption, "[i]t is correct to say that a child between seven and fourteen is required to exercise due care for his own safety under the circumstances and that the care required is to be measured by that ordinarily exercised under similar circumstances by children of the same age, knowledge, judgment and experience." Baller, supra, 490 N.E.2d at 385.

In Smith, supra, 421 N.E.2d 1172, the plaintiff was a child of the age of 12 years and 9 months. He testified that he looked in one direction while crossing the street on an errand. He waited for one car to pass. He then crossed the road without looking in the other direction. This Court concluded that under the circumstances, the plaintiff was contributorily negligent as a matter of law. Id., 421 N.E.2d at 1180. In reversing a judgment on the evidence rendered in favor of the defendant, this Court in Maldonado, supra, 502 N.E.2d at 1372-1373, specifically noted that the plaintiff in Smith virtually admitted his negligence by failing to look in one direction before crossing the road. In contrast, there was no such admission in Maldonado. Id., 502 N.E.2d at 1373.

In the present case, Jeffrey does not recall the incident. The evidence discloses that Jeffrey paused at the center line of the road before he proceeded across. Considering the standard to which Jeffrey is held and the lack of evidence that he failed to look in either direction before proceeding, the trial court erred in concluding that Jeffrey was contributorily negligent as a matter of law.

Further, the deposition of the PTC bus driver, the deposition of PTC's general manager, and the affidavit of the Brockmeyers' expert witness contain facts which preclude summary judgment. The bus driver stated that the route could have been driven to allow Jeffrey same-side access to the bus and his home. The general manager of PTC stated that the route was planned by an employee who, to his knowledge, had no special training in school route planning; that PTC had discontinued using yellow school buses equipped with safety signals requiring traffic to stop because PTC could more economically maintain and utilize the same buses used for general public transportation; that yellow school buses and same-side service provide added safety precautions for children; and that when the bus driver believed that she had adequate time, she drove an alternative route which allowed...