Cole v. Gohmann

• Decision Date: 11 May 2000
• Docket Number: No. 49A02-9906-CV-452.,49A02-9906-CV-452.
• Citation: 727 N.E.2d 1111
• Parties: Kenneth COLE, Appellant-Defendant, v. Janice GOHMANN, Appellee-Co-Defendant, and Jeffrey Dodson and Shanice Brazell-Dodson, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

727 N.E.2d 1111

Kenneth COLE, Appellant-Defendant, v. Janice GOHMANN, Appellee-Co-Defendant, and Jeffrey Dodson and Shanice Brazell-Dodson, Appellees-Plaintiffs.

No. 49A02-9906-CV-452.

Court of Appeals of Indiana.

May 11, 2000.

Jil Pullappally Unni, Kopka, Landau & Pinkus, Indianapolis, Indiana, Attorney for Appellant.

Patrick F. Mastrian, III, Sarah J. Graziano, Goodin & Kraege, Mark S. Alderfer, Hackman McClarnon Hulett & Cracraft, Indianapolis, Indiana, Attorneys for Appellee Janice Gohmann.

Dean J. Arnold, Nunn & Greene Law Office, Bloomington, Indiana, Attorney for Appellees Jeffrey and Shanice Dodson.

OPINION

KIRSCH, Judge.

Appellant-defendant Kenneth Cole appeals the trial court's grant of summary judgment in favor of appellee-codefendant Janice Gohmann. Specifically, Cole asserts that the entry of summary judgment for Gohmann should be reversed because a genuine issue of material fact remains as to whether she breached a duty of care to the plaintiffs-appellees, Jeffrey and Shanice Brazell-Dodson (collectively, the "Dodsons"),¹ who were passengers in Cole's automobile. We agree and reverse.

FACTS AND PROCEDURAL HISTORY

The Dodsons filed a complaint against Cole seeking damages which arose out of a motor vehicle accident. The facts are not in dispute as to how the accident occurred. The Dodsons were traveling as passengers in a vehicle driven by Cole in Marion County. Cole was headed eastbound, it had been raining, and the streets were still wet. At one point, Cole's vehicle began to fishtail. Gohmann was traveling westbound and observed Cole's vehicle spin into her lane. Gohmann first observed Cole's vehicle when it was two to three car lengths away. Record at 48. Gohmann's automobile ultimately collided with Cole's vehicle. Gohmann testified that approximately four seconds had elapsed from the time that she saw Cole's vehicle begin to spin until the collision occurred. Record at 48-49.

Cole answered the complaint and defended on the grounds that the injuries may have been caused in whole or in part by Gohmann. The Dodsons amended their complaint to add Gohmann as a defendant in the cause of action. Gohmann then proceeded to file a cross-claim for damages against Cole.

Gohmann filed a motion for summary judgment to dismiss her from the Dodsons' cause of action. Gohmann asserted that she did not breach any duty of care owed to the Dodsons and, therefore, the negligence claim must fail. Cole opposed the motion, claiming that a genuine issue of material fact remained as to whether Gohmann breached a duty of care while using a public highway. Following a hearing on the motion, the trial court granted summary judgment for Gohmann and dismissed her from the cause of action with prejudice. In essence, the trial court determined as a matter of law that Gohmann did not breach a duty of care to the Dodsons. Cole now appeals, claiming that the trial court improperly granted summary judgment in favor of Gohmann.

DISCUSSION AND DECISION

Cole argues on appeal that there are genuine issues and inferences of fact that preclude summary judgment in favor of Gohmann. Specifically, he contends that a question of fact exists as to whether Gohmann breached her duty to maintain a proper lookout while operating her vehicle. Cole claims that whether Gohmann exercised such precaution is a question best left for the fact finder to resolve. He further contends that summary judgment was inappropriate because the question of whether Gohmann acted reasonably in operating her vehicle in these circumstances was for the jury to resolve. We must agree.

Once again, we are presented with a case that illustrates the marked difference in summary judgment procedure in Indiana as compared to federal practice. Under Indiana procedure, the party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists. Schmidt v. American Trailer Court, Inc., 721 N.E.2d 1251, 1253, (Ind.Ct.App.1999), trans. denied (2000) (citing Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994); Lenhardt Tool & Die Co. v. Lumpe, 703 N.E.2d 1079, 1082 (Ind.Ct.App.1998), trans. denied (2000)). Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. In contrast, federal summary judgment procedure requires summary judgment to be granted against a party who fails to establish an essential element of that party's case as to which that party bears the burden of proof at trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In Celotex, the United States Supreme Court expressly rejected the view that the nonmoving party bears the burden of responding to the summary judgment motion only once the movant has come forward with evidence of the absence of any genuine issue of material fact. Id. (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). The Celotex Court stated:

"We think that the position taken by the majority of the Court of Appeals is inconsistent with the standard for summary judgment set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to a judgment as a matter of law.' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. `[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)....' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to `the affidavits, if any,' suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment `with or without supporting affidavits.' The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose."

Celotex, 477 U.S. at 322-24, 106 S.Ct. at

2552

-53.

Our supreme court in Jarboe rejected the federal summary judgment approach and explained Indiana's summary judgment framework as follows:

"The burden imposed at trial upon the party with the burden of proof on an issue is significantly different from that required of a non-movant in an Indiana summary judgment proceeding. Under Indiana's standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence.

In this respect, Indiana's summary judgment procedure abruptly diverges from federal summary judgment practice. Under the federal rule, the party seeking summary judgment is not required to negate an opponent's claim. The movant need only inform the court of the basis of the motion and identify relevant portions of the record `which it believes demonstrate the absence of a genuine issue of material fact.' Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 272. The burden then rests upon the nonmoving party to make a showing sufficient to establish the existence of each challenged element upon which the non-movant has the burden of proof. Id. Indiana does not adhere to Celotex and the federal methodology."

Jarboe, 644 N.E.2d at 123.

However, we note that Justice Boehm, with Chief Justice Shepard concurring, recently expressed his belief that Indiana courts have been too literal in interpreting and applying Jarboe. See Lenhardt Tool & Die Co. Inc. v. Lumpe, 722 N.E.2d 824 (Ind.2000) (Boehm, J., dissenting from denial of transfer)

. He stated that Jarboe had been construed by the courts in some cases to require the movant to "establish a negative proposition" and that in his view such was "an incorrect reading of Trial Rule 56, and of Jarboe, and leads to unnecessary expense to litigants...