Gonzalez v. Ritz

Decision Date21 May 2018
Docket NumberCourt of Appeals Case No. 64A04–1712–CT–2850
Citation102 N.E.3d 910
Parties Sheila GONZALEZ and Rod Gonzalez, Appellants–Plaintiffs, v. Sara RITZ, Northern Indiana Public Service Company, Porter County Drug Task Force, and Town of Chesterton, Appellees–Defendants.
CourtIndiana Appellate Court

Attorney for Appellants: Adam J. Sedia, Hoeppner, Wagner & Evans, LLP, Merrillville, Indiana

Attorneys for Appellees Sara L. Ritz and Porter County Drug Task Force: Crystal G. Rowe, Alyssa C.B. Cochran, Kightlinger & Gray, LLP, New Albany, Indiana, Galen A. Bradley, Kightlinger & Gray, LLP, Merrillville, Indiana

Attorney for Appellee Town of Chesterton: Thomas Waggoner, Straub, Seaman & Allen, PC, St. Joseph, Michigan

Bradford, Judge.

Case Summary

[1] In July of 2014, Sheila Gonzalez was riding her bicycle on a trail with her two children when the trio came to an intersection with a road. When Sheila attempted to cross the road, she was struck by a vehicle driven by Sara Ritz, a member of the Chesterton Police Department ("the Department") and Porter County Drug Task Force ("the Task Force"). Gonzalez and her husband Rod sued Ritz, the Task Force, and the Town of Chesterton ("the Town") for negligence. The Task Force moved for summary judgment on the basis that there was no genuine issue of material fact that Sheila had been contributorily negligent as a matter of law. The Town joined the Task Force's motion, and the trial court entered summary judgment in favor of the Task Force and the Town (collectively, "Appellees"). The Gonzalezes appeal, contending that the designated evidence does not inevitably lead to the inference that Sheila was contributorily negligent. Because we agree, we reverse the trial court's grant of summary judgment in favor of Appellees and remand for trial.

Facts and Procedural History

[2] In July of 2014, Ritz was employed as a detective for the Department and served as a member of the Task Force. On July 9, 2014, Ritz was in Portage, Indiana, conducting an investigation within the course and scope of her employment. Ritz was stopped at the four-way intersection of Swanson Road and Aspen Road before she proceeded east down Lute Road.

[3] Meanwhile, Sheila and her children Vanessa and Carter had been riding their bicycles on the Prairie Duneland Trail ("the Trail") nearby. The trio approached the Trail's intersection with Lute Road, which had a stop sign directing bicyclists to stop and yield to traffic on Lute Road. No trees, shrubbery, tall grass, weather, or other obstructions prevented bicyclists from seeing traffic on Lute Road that day. When the three Gonzalezes reached the stop sign at the Lute Road intersection, they came to a complete stop. Vanessa crossed Lute Road without incident and waited on the other side.

[4] Carter and Sheila remained stopped on the Trail while approximately nine to ten vehicles passed on Lute Road. Sheila looked right then left, told Carter that "it was clear, we can go[,]" and started to pedal across Lute Road. Appellant's App. Vol. II p. 48. Carter agreed with Sheila's assessment that "the traffic became clear on Lute Road[,]" and, after looking both ways himself, started to follow Sheila, trailing a few feet behind. Appellant's App. Vol. II p. 43. As Carter started to follow Sheila across the street, he looked to his right and noticed Ritz's vehicle approaching. Carter stopped his bicycle and yelled at Sheila to stop. Carter first saw Ritz's vehicle approximately one second before it struck Sheila.

[5] According to Carter, the vehicle appeared to be going faster than all of the other vehicles that had passed. Vanessa told police at the scene that Ritz's vehicle was going "f****** fast[,]" Appellant's App. Vol. II p. 63, and later opined that Ritz was driving too fast. Although Sheila could not recall anything about the accident, she testified that it was her practice while riding a bicycle to stop at all intersections and look both ways before crossing.

[6] On February 4, 2016, the Gonzalezes filed their first amended complaint. The Gonzalezes alleged, inter alia , that the Appellees were vicariously liable for the alleged negligence of their employee, Ritz.1 On April 12, 2016, the Town filed its answer to the Gonzalezes' amended complaint,and on April 18, 2016, the Task Force filed its answer. On May 17, 2017 the Task Force moved for summary judgment. The Town joined the Task Force's summary-judgment motion and filed its own on July 10, 2017.

[7] On September 25, 2017, the trial court denied the Gonzalezes' motion to file a belated response to the Appellees' summary-judgment motion, held a hearing (at which the Gonzalezes were permitted to present argument), and granted summary judgment in favor of the Appellees. The Gonzalezes filed a motion to correct error, which motion the trial court denied.

Discussion and Decision

[8] Although review of a trial court's ruling on a motion to correct error is generally for an abuse of discretion, where the issue raised is purely a question of law, the standard of review is de novo . City of Indpls. v. Hicks , 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied . On review of a trial court's decision to grant or deny summary judgment, we must determine whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C) ; Carie v. PSI Energy, Inc. , 715 N.E.2d 853, 855 (Ind. 1999). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] A fact is "material" if its resolution would affect the outcome of the case and "genuine" if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. T.R. 56(C) ). The non-movant may not rest upon the bare allegations made in the pleadings, but must respond with affidavits or other evidence setting forth specific facts showing that genuine issues are in dispute. Willsey v. Peoples Fed. Sav. & Loan Ass'n. of E. Chicago, Ind. , 529 N.E.2d 1199, 1205 (Ind. Ct. App. 1988).

In reviewing the propriety of a ruling on a motion for summary judgment, we apply the same standards as the trial court and review all the pleadings, depositions, admissions, answers to interrogatories, and any affidavits designated to the trial court in the light most favorable to the nonmovant. The movant bears the burden of proving the propriety of summary judgment, and all rational assertions of fact and reasonable inferences to be resolved therefrom are deemed to be true and are viewed in the nonmovant's favor.

Lindsey v. DeGroot , 898 N.E.2d 1251, 1256 (Ind. Ct. App. 2009) (citation omitted). In ruling on a motion for summary judgment, the Court may consider only designated evidence that would be admissible at trial. See Ind. T.R. 56(C), (E); see also Kronmiller v. Wangberg , 665 N.E.2d 624, 627 (Ind. Ct. App. 1996), trans. denied .

[10] In their appeal from the grant of summary judgment, the Gonzalezes argue that the Task Force and the Town failed to establish that Sheila was contributorily negligent as a matter of law. Generally, in Indiana actions for negligence, a plaintiff's contributory fault does not bar recovery unless it exceeds fifty percent of the total fault. See Ind. Code §§ 34–51–2–5, –6. Because the Indiana Comparative Fault Act expressly excludes application to governmental entities, however, the common-law defense of contributory negligence remains available as a bar for liability for defendants such as the Appellants. See Ind. Code § 34–51–2–2 ("This chapter does not apply in any manner to tort claims against governmental entities or public employees[.]"). So, even a slight degree of negligence on the part of Sheila, if proximately contributing to her claimed damages, will operate as a complete bar to the Gonzalezes' action for damages against the Appellees.

[11] A plaintiff is contributorily negligent when the plaintiff's conduct "falls below the standard to which he should conform for his own protection and safety. Lack of reasonable care that an ordinary person would exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends." Jones v. Gleim , 468 N.E.2d 205, 207 (Ind. 1984) ; see also Hundt v. La Crosse Grain Co. , 446 N.E.2d 327, 329 (Ind. 1983). Put another way, "[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise." Brown v. N. Ind. Publ. Serv. Co. , 496 N.E.2d 794, 798 (Ind. Ct. App. 1986). Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment "if there are conflicting factual inferences." Butler v. City of Peru , 733 N.E.2d 912, 917 (Ind. 2000). "However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law." Jones , 468 N.E.2d at 207.

[12] As an initial matter, the Appellees argued below, and argue here, that Sheila is presumed to have been contributorily negligent for failing to comply with a safety statute or statutes. See, e.g. , Davison v. Williams , 251 Ind. 448, 242 N.E.2d 101, 105 (1968) ("We believe that the wisest course for the courts of Indiana to take in the adjudication of a suit involving negligence by violation of a safety regulation is to treat plaintiff's proof of defendant's violation of the safety regulation as creating a rebuttable...

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