Hill v. Gephart

• Decision Date: 06 May 2016
• Docket Number: No. 49A02–1509–CT–1288.,49A02–1509–CT–1288.
• Citation: 54 N.E.3d 402
• Parties: Barbara HILL, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill, a minor, by her next friend and mother, Tenise Hill–Cornelius, Appellant–Plaintiffs, v. Erich E. GEPHART, City of Indianapolis, and Marion County Sheriff's Department, Appellee–Defendants.
• Court: Indiana Appellate Court

54 N.E.3d 402

Barbara HILL, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill, a minor, by her next friend and mother, Tenise Hill–Cornelius, Appellant–Plaintiffs

v.Erich E. GEPHART, City of Indianapolis, and Marion County Sheriff's Department, Appellee–Defendants.

No. 49A02–1509–CT–1288.

Court of Appeals of Indiana.

May 6, 2016.

Jason D. May, Law Office of Jason D. May, LLC, Samuel D. Krahulik, The Hastings Law Firm, Indianapolis, IN, Attorneys for Appellant.

Pamela G. Schneeman, Assistant Corporation Counsel, Office of Corporation Counsel, Kevin C. Schiferl, Anthony W. Overholt, Alexander P. Will, Darren A. Craig, Frost Brown Todd, LLC, Indianapolis, IN, Attorneys for Appellee.

MATHIAS, Judge.

[1] Barbara Hill, individually and as guardian of Charles Hill (“Charles”), incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill (“Macey”), a minor, by her next friend and mother,

Tenise Hill–Cornelius (collectively “the Hills”) filed a complaint in Marion Superior Court against Erich Gephart (“Deputy Gephart”), the City of Indianapolis, and the Marion County Sheriff's Department (collectively “Defendants”) alleging that Defendants were negligent when a Marion County Sheriff jail transport vehicle driven by Deputy Gephart struck and severely injured Charles. Defendants moved for summary judgment, arguing that Deputy Gephart was not negligent and that Charles was contributorily negligent which was the proximate cause of his own injuries. The trial court granted Defendants' motion for summary judgment. The Hills now appeal and raise two issues, which we consolidate and restate as whether the trial court erred in granting Defendants' motion for summary judgment.

[2] We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] On the evening of November 25, 2011, Charles and his daughter, Macey walked to Fox Hill Elementary School (“the school”) from their residence on Fox Hill Drive in Indianapolis, Indiana, so Macey could play on the school's playground equipment.

[4] Charles and Macey left the residence when it was still light outside. The school is about one block east of the Hills' residence and takes about five minutes to walk there. To get to the playground, Charles and Macey walked along the east side of Fox Hill Drive¹ , on the north side (left side) of the street facing oncoming westbound traffic. The school was located on the same side of the street as their residence, so Charles and Macey did not have to cross the street.

[5] While Macey played, Charles watched her and talked on his cell phone. As the sun went down, Charles and Macey decided to return home. They took the same route on the way back, this time walking again on the north side (right side) of Fox Hill Drive with their backs toward traffic. Charles and Macey decided to walk on the right side so they did not have to cross the street. Macey walked in front of Charles as he still talked on his phone.

[6] At approximately 6:00 p.m., Deputy Gephart, jail transport driver for the Marion County Sheriff's Department, began his shift. This was about the same time that Charles and Macey began walking home. Deputy Gephart's job required him to drive around the jail transport vehicle to transport arrestees. Like many police cars, the transport vehicle is equipped with a cockpit laptop computer. After leaving his home, Deputy Gephart drove southbound on Hoover Road, stopped at the intersection's stop sign, and turned right onto Fox Hill Drive, traveling westbound at approximately 40 m.p.h. The posted speed limit on Fox Hill Drive is 30 m.p.h.

[7] As Deputy Gephart was driving around the 900 block of Fox Hill Drive, he heard a loud collision with the transport vehicle but did not see anything in the road. At the time, it was dark outside, and Deputy Gephart reported a glare reflecting off of his laptop. He immediately stopped the transport vehicle about fifty feet after the collision occurred and exited the vehicle to determine what had happened. Deputy Gephart observed damage to the passenger side windshield, mirror, and headlight.

[8] At that same time, Deputy Gephart saw Macey run across the grass and noticed that she was crying. He heard her say, “Somebody hit my ...” Appellant's App. p. 199. However, Macey did not see, but only heard Deputy Gephart hit Charles because she was walking in front of him while Charles remained on the phone. When she turned around, she saw Charles lying in the grass north of the road. She also saw Deputy Gephart driving the transport vehicle but only “on the road surface.” Appellant's App. p. 190.

[9] Still unsure of what had happened, Deputy Gephart grabbed his flashlight and looked back to the east of where he was standing. He saw a man, later identified as Charles, lying face down on the ground in the grass and noticed that he was unresponsive, but still breathing.² Deputy Gephart then observed a large gash on the top of Charles's head. He immediately contacted his control operator and explained that he had hit someone with the transport vehicle. Deputy Gephart also requested an ambulance.

[10] After running home, Macey notified her grandmother that Charles had been hit. The Hill family rushed to the accident scene where they saw Charles lying face down on the ground unconscious and bleeding. Charles was then transported to the hospital for treatment. He suffered numerous severe injuries that require future treatment and rehabilitation.

[11] That same evening, Indianapolis Metropolitan Police Department (“IMPD”) officers began investigating the collision led by Sergeant Doug Heustis (“Sergeant Heustis”). Sergeant Heustis took photos of the van, Charles's clothing, and the road. He also took measurements for purposes of accident reconstruction. After the investigation, Sergeant Heustis determined that Charles was “walking westbound at the edge of the westbound lane at the time of the crash” but “could not determine the exact location of [ ]Hill at the time of impact.” Appellant's App. p. 238. Sergeant Heustis concluded that “[t]he primary causes of this crash [were] a combination of the low light environment and the dark clothes being worn by the pedestrian.” Id.

[12] On December 16, 2011, the Hills filed a Tort Claims Notice with Defendants. The Hills then filed a complaint in Marion Superior Court against Defendants alleging negligence and negligent infliction of emotional distress on April 23, 2012. After conducting discovery, Defendants filed a motion for summary judgment on March 30, 2015. The Hills responded with their opposition in response on May 28, 2015. Defendants then filed a reply brief in support for their motion for summary judgment and a motion to strike inadmissible evidence relied upon in opposition to motion for summary judgment on June 11, 2015. On June 25, 2015, the Hills filed a request for judicial notice.

[13] A hearing on Defendants' motion for summary judgment was held on July 1, 2015. On August 4, 2015, the trial court granted the Hills's request for judicial notice. Three days later, the court dismissed the Hills's complaint against Deputy Gephart and granted summary judgment in favor of the remaining Defendants. The Hills now appeal.

Standard of Review

[14] Our standard of review for summary judgment appeals is well settled:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. In answering these questions, the reviewing court construes all factual inferences in the non-moving party's favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

The party appealing a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Where the facts are undisputed and the issue presented is a pure question of law, we review the matter de novo.

Importantly for this case, summary judgment is rarely appropriate in negligence actions, since negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person. This standard is best applied by a jury after hearing all of the evidence.

M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind.Ct.App.2014), trans. denied (citations and internal quotations omitted).

Discussion

[15] The Hills argue that the trial court erred in granting Defendants' motion for summary judgment because Defendants' affirmative defense that Charles was contributorily negligent should be decided by a trier of fact, not as a matter of law. The Hills concede that Charles violated Indiana Code section 9–21–17–14 when he walked on the right hand side of Fox Hill Drive. Indiana Code 9–21–17–14 provides:

If neither a sidewalk nor a shoulder is available, a pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge to the roadway. If the roadway is two-way, the pedestrian shall walk only on

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