Simpson v. Op Prop. Mgmt. Llc

• Court: Indiana Appellate Court
• Writing for the Court: OPINION
• Citation: Simpson v. Op Prop. Mgmt. Llc, 939 N.E.2d 1098, 263 Ed. Law Rep. 346 (Ind. App. 2010)
• Decision Date: 17 December 2010
• Docket Number: No. 49A05–1006–CT–355.,49A05–1006–CT–355.
• Parties: Tara SIMPSON and Jason Simpson, Appellants–Plaintiffs,v.OP PROPERTY MANAGEMENT, LLC, West Lake Arms Limited Partnership, Metropolitan School District of Wayne Township, and Barry P. Matesick, Appellees–Defendants.

939 N.E.2d 1098

263 Ed. Law Rep. 346

Tara SIMPSON and Jason Simpson, Appellants–Plaintiffs,

v.OP PROPERTY MANAGEMENT, LLC, West Lake Arms Limited Partnership, Metropolitan School District of Wayne Township, and Barry P. Matesick, Appellees–Defendants.

No. 49A05–1006–CT–355.

Court of Appeals of Indiana.

Dec. 17, 2010.

Marc S. Sedwick, Law Office of Marc S. Sedwick, P.C., Indianapolis, IN, Attorney for Appellant, Tara Simpson.Shannon L. Robinson, Bloomington, IN, Attorney for Appellees, Metropolitan School District of Wayne Township and Barry Matesick.

OPINION

CRONE, Judge.

Case Summary

On a winter morning, Tara Simpson slid down a hill and collided with another vehicle that was turned the wrong way in her lane. While she was still in her car at the scene of the accident, a school bus driven by Barry Matesick, an employee of the Metropolitan School District of Wayne Township (“the School District”), also slid down the hill and collided with Simpson. Simpson sued Matesick and the School District (collectively “Appellees”).¹ Appellees moved for summary judgment, arguing that Simpson's notice of tort claim did not properly notify them of her claim that Matesick negligently operated the bus, that they were entitled to sovereign immunity under a provision conferring immunity for losses caused by a temporary weather condition, that there was no evidence that Matesick was negligent, and that even if he was negligent, Simpson was contributorily negligent or incurred the risk. We conclude that Simpson's notice of tort claim was sufficient and that Appellees are not entitled to immunity. Further, we conclude that there are genuine issues of material fact as to whether Appellees were negligent and whether Simpson was contributorily negligent or incurred the risk. Therefore, we reverse and remand for further proceedings.

Facts and Procedural History

On the morning of February 20, 2008, Simpson was driving on West Lake North Drive toward the exit of her apartment complex. There is a steep decline near the exit, and as Simpson began driving downhill, she saw that there was a car turned the wrong way in her lane. Simpson was unable to stop and slid into the other car. Simpson rolled down her window and began talking to the other driver. She initially was going to stay put while waiting for the police to arrive, but then she decided to move her car. However, at that moment, a school bus came over the hill and slid into her car. Two more cars came over the hill and collided with Simpson's vehicle.

Matesick was the driver of the school bus. Matesick had been driving on Beachway Drive, and he stopped at the intersection with West Lake North Drive. He could not see the first accident because a concrete barrier was blocking his view. Matesick could not see Simpson's vehicle until he had turned onto West Lake North Drive. In an attempt to avoid Simpson's vehicle, Matesick steered the bus into the median, where it stopped momentarily. Matesick checked to see if the students were hurt and radioed the school. Then, the bus started moving again because of “gravity,” and it slid into Simpson's car. Appellant's App. at 98.

On May 7, 2008, Simpson sent a notice of tort claim to the School District and other governmental entities. The notice referenced the police report from the accident, which was appended to the notice. The allegations relevant to the School District were that it was negligent “in failing to properly hire school bus drivers” and “in failing to properly train and teach school bus drivers proper procedures for preventing accidents.” Id. at 109.

Simpson later filed suit against the School District and Matesick, among other parties. She alleged that Matesick negligently operated the school bus and that the School District was “independently and vicariously liable for Defendant, Barry Matesick's, negligence as described in this Complaint.” Id. at 63. The School District and Matesick filed a motion for summary judgment, which the trial court granted on May 26, 2010. Simpson now appeals.

Discussion and Decision

Our standard of review of a summary judgment is well settled:

When determining the propriety of an order granting summary judgment, we use the same standard of review as the trial court. Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Once the moving party meets these two requirements, the burden shifts to the non-moving party to show the existence of a genuine issue of material fact by setting forth specifically designated facts. We must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party.

Ryan v. Brown, 827 N.E.2d 112, 116–17 (Ind.Ct.App.2005) (quotation marks and citations omitted). “A negligence action is rarely an appropriate case for disposal by summary judgment.” Miller v. Monsanto Co., 626 N.E.2d 538, 541 (Ind.Ct.App.1993).

Appellees argued that they were entitled to summary judgment for the following reasons: (1) Simpson's notice of tort claim was insufficient; (2) Appellees have sovereign immunity; (3) the designated evidence does not demonstrate that Matesick was negligent; and (4) even if Matesick was negligent, Simpson either assumed the risk or was contributorily negligent. The trial court did not state its reason for granting summary judgment for Appellees. However, we may affirm on any basis supported by the designated evidence. Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1264 (Ind.Ct.App.2002), trans. denied. Therefore, we will examine each of the reasons advanced by Appellees in turn.

I. Tort Notice

Claims against school corporations and their employees are subject to the notice provisions of the Indiana Tort Claims Act (“ITCA”). Meury v. Eagle–Union Cmty. Sch. Corp., 714 N.E.2d 233, 241 (Ind.Ct.App.1999), trans. denied. Indiana Code Section 34–13–3–10 provides:

The notice ... must describe in a short and plain statement the facts on which the claim is based. The statement must include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice. “The question of compliance is not a question of fact, but rather a procedural precedent which the plaintiff must prove and which the trial court must determine prior to trial.” Madden v. Erie Ins. Grp., 634 N.E.2d 791, 793 (Ind.Ct.App.1994). Because the ITCA notice requirements are in derogation of the common law, they are to be strictly construed against limitations on a claimant's right to bring suit. Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989).

Appellees do not argue that the factual content of Simpson's notice was deficient in any way. Instead, they argue that she presented a different claim in her complaint than in her tort notice. Simpson's notice of tort claim alleged that the School District was negligent “in failing to properly hire school bus drivers” and “in failing to properly train and teach school bus drivers proper procedures for preventing accidents.” Appellant's App. at 109. Her complaint alleged that Matesick negligently operated the school bus and that the School District was “independently and vicariously liable for Defendant, Barry Matesick's, negligence as described in this Complaint.” Id. at 63. Appellees argue that Simpson notified them only of a claim based on negligent hiring and training, whereas her complaint alleged that the School District was vicariously liable for Matesick's negligence and did not explicitly mention negligent hiring or training.

While Simpson's notice and complaint could have been more clearly drafted, we are not persuaded that Simpson's notice was inadequate. Simpson's claim that the School District negligently hired and trained Matesick by implication indicates that she was claiming that Matesick's conduct was wrongful. We are hard pressed to see how the School District could be negligent by hiring and training a bus driver who had done nothing wrong. Simpson's complaint clearly states a claim for the School District's vicarious liability, but also alleges that the School District is independently liable, which is easily understood as a reference to her claims in the tort notice that the School District negligently hired and trained Matesick.

We have held that entirely new claims may not be raised in a complaint if not mentioned in the tort notice. See Boushehry v. City of Indianapolis, 931 N.E.2d 892, 896–97 (Ind.Ct.App.2010) (plaintiff developer could not bring a claim relating to the disputed ownership of a sewer line based on a tort notice that referred only to a stop-work order that had been issued because of an unlicensed electrician); Hedges v. Rawley, 419 N.E.2d 224, 227 (Ind.Ct.App.1981) (plaintiffs' filing of a union grievance may have notified the city of a labor dispute, but was not proper notice for their slander claim). Simpson, however, alleged negligence, and only negligence, in both her notice and her complaint, and her various theories of liability all stemmed from the same set of facts. Appellees have not directed us to any decisions that would support their claim that Simpson's notice was deficient. In light of our rule that the notice requirements are to be strictly construed against limiting the claimant's right to sue, we conclude that Simpson's notice was adequate.

II. Immunity

Appellees argue that they have immunity pursuant to Indiana Code Section 34–13–3–3(3), which provides that a governmental entity or employee acting...