Sizemore v. Templeton Oil Co., Inc.

• Decision Date: 29 February 2000
• Docket Number: No. 50A04-9906-CV-244.,50A04-9906-CV-244.
• Citation: 724 N.E.2d 647
• Parties: Austin SIZEMORE and Charlotte Sizemore, Appellants-Plaintiffs, v. TEMPLETON OIL COMPANY, INC., Town of Bremen and State of Indiana, Appellees-Defendants.
• Court: Indiana Appellate Court

724 N.E.2d 647

Austin SIZEMORE and Charlotte Sizemore, Appellants-Plaintiffs, v.TEMPLETON OIL COMPANY, INC., Town of Bremen and State of Indiana, Appellees-Defendants.

No. 50A04-9906-CV-244.

Court of Appeals of Indiana.

February 29, 2000.

Edmond W. Foley, Foley & Small, South Bend, Indiana Attorney for Templeton Oil Company.

Phillip A. Renz, Miller Carson Boxberger & Murphy LLP, Fort Wayne, Indiana, Attorney for Town of Bremen.

Matthew A. Yeakey, Jason G. Ward, Daniels, Sanders, Pianowski, Todd & Thomas, Elkhart, Indiana, Attorney for Appellee.

OPINION

STATON, Judge.

Austin and Charlotte Sizemore( the "Sizemores") appeal the trial court's grant of summary judgment in favor of the Town of Bremen("Bremen") and Templeton Oil Company("Templeton").The Sizemores raise two issues on appeal, which we restate as:

I.Whether the trial court incorrectly granted summary judgment in favor of Bremen.

II.Whether the trial court incorrectly granted summary judgment in favor of Templeton.

We reverse the trial court's grant of summary judgment in favor of Bremen, and affirm summary judgment in favor of Templeton.

Austin Sizemore fell and injured his ankle when a piece of asphalt at the edge of a large pothole located in the right-of-way of State Road 106 in Bremen gave way underneath him.Austin was walking on State Road 106 for the purpose of entering a Shell station owned by Templeton.The entrance of the Shell station was adjacent to and extended from the highway right-of-way in which the pothole was located.The Sizemores subsequently sued Bremen, Templeton and the State of Indiana, alleging that all three entities negligently caused Austin's injury.All three defendants moved for summary judgment.The trial court granted summary judgment in favor of Bremen and Templeton and, finding no just reason for delay, entered final judgment as to Bremen and Templeton pursuant to Ind. TrialRule 54(B).This appeal ensued.

I.Summary Judgment for Bremen

The trial court found, as a matter of law, that Bremen did not owe the Sizemores a duty of care and granted summary judgment in Bremen's favor.The Sizemores contend this was error.Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Ind. TrialRule 56(C).The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law.Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations in his pleadings.Stephenson v. Ledbetter,596 N.E.2d 1369, 1371(Ind.1992).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.T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court.We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party.Reed v. Luzny,627 N.E.2d 1362, 1363(Ind.Ct.App.1994), reh. denied, trans. denied.We may sustain a summary judgment upon any theory supported by the designated materials.T.R. 56(C).

In a negligence action such as the one at bar, the plaintiff must prove three elements to prevail.These elements are (1) the existence of a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty of care, and (3) injury to the plaintiff proximately caused by the breach of duty.Benton v. City of Oakland City,721 N.E.2d 224(Ind.1999).Generally, issues of breach and causation are questions of fact to be determined by the jury.Whether a duty exists, however, is a question of law for the court to decide and, therefore, is an issue generally appropriate for summary judgment.Id.;McGlothlin v. M & U Trucking,649 N.E.2d 135, 137(Ind.Ct.App.1995).

The pothole that allegedly caused injury to Austin Sizemore was located in the right-of-way of State Road 106.The State admitted, and the Sizemores do not dispute, that maintenance and repair of State Road 106 and its right-of-way is primarily the responsibility of the State.Nevertheless, the Sizemores present two theories under which they claim Bremen owed them a duty of care with respect to the pothole.We will address each of these theories in turn.

Although State Road 106, including the right-of-way, is state property, the Sizemores contend that Bremen owed them a duty of care with respect to the pothole because Bremen exerted control over that portion of State Road 106 on which Austin Sizemore was injured.The Sizemores correctly assert that a duty of care may exist with respect to premises not belonging to the defendant if the defendant controls the property upon which an injury occurs.City of Bloomington v. Kuruzovich,517 N.E.2d 408, 411(Ind.Ct. App.1987).In Kuruzovich,the plaintiff sued the city of Bloomington after he tripped over a manhole cover and was injured at a park owned by private citizens.This Court found that Bloomington was liable for Kuruzovich's injuries regardless of the fact that it did not own the park because Bloomington had an interest in and controlled the premises.Id. at 410.The facts indicating Bloomington's interest in and control over the park include the following: (1) Bloomington had previously leased the park from the private owners and remained a tenant at will when Kuruzovich was injured; (2) during the term of the lease, Bloomington listed the park as a city park, mowed the park, and removed trash from the park; (3) Bloomington continued to list the park as a city park, and to mow and remove trash from the park after the lease expired; and (4) the manhole cover over which Kuruzovich tripped was dedicated to the city.Id.

In their attempt to equate the facts of Kuruzovich to the present case, the Sizemores rely on the following facts to support their argument that Bremen exercised control over State Road 106: (1) Bremen has a contract with the State to sweep state roadways, including State Road 106, within town limits; (2) Bremen picks up brush and leaves along State Road 106; (3) Bremen repairs sidewalks within the town limits, provided the property owner pays for the concrete; and (4) Bremen maintains a policy whereby its street department employees report road problems they encounter on state roads to the State Highway Department.

Bremen's street-sweeping contract with the State, its picking up brush, and its repair of sidewalks within town limits does not demonstrate control over State Road 106 with respect to the existence of potholes.Likewise, although Bremen maintains a policy whereby street department employees report road problems that they happen across, Bremen does not require its employees to inspect state roads for problems.Bremen's activities with respect to State Road 106 fall far short of the circumstances under which control over the premises was found in Kuruzovich.Bremen's street-sweeping contract is not the equivalent of a leasehold interest in the highway, nor does it impose on Bremen the responsibility to repair or maintain the highway with respect to potholes.Bremen does not exercise sufficient control over State Road 106 and its right-of-way to give rise to a duty of care with respect to the pothole that allegedly caused Austin Sizemore's fall.

The Sizemores also assert that genuine issues of material fact exist with regard to whether Bremen assumed a duty toward them with respect to the pothole.Indiana recognizes the gratuitous assumption of duty by one who, through affirmative conduct or agreement, assumes and undertakes a duty to act.Ember v. B.F.D., Inc.,490 N.E.2d 764, 769(Ind.Ct. App.1986).The assumption of a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person.Gunter v. Village Pub,606 N.E.2d 1310, 1312(Ind.Ct.App.1993).Although the determination of whether a duty exists is generally a question of law, whether a party assumed a duty and the extent of that duty are questions for the fact-finder.Id.We may decide whether Bremen assumed a duty toward the Sizemores only if there are no genuine issues of material fact.American Legion Pioneer Post No. 340 v. Christon,712 N.E.2d 532, 536(Ind. Ct.App.1999).

In support of their argument that Bremen assumed a duty with respect to the pothole, the Sizemores direct our attention to; Bremen's policy of logging citizen complaints and reporting problems on state roads to state authorities, to Charlotte Sizemore's testimony that she reported the pothole on State Road 106 to Bremen approximately two weeks before Austin Sizemore was injured; and that Bremen officials led her to believe that Bremen would contact the State and report the problem.Bremen argues that its policy of logging complaints and reporting problems it encounters on state roads to state authorities does not give rise to an inference that it assumed a duty "to patrol and inspect the state highways within its borders."Bremen briefat 10.Moreover, Bremen disputes Charlotte Sizemore's testimony that she contacted Bremen about the pothole prior to Austin Sizemore's injury.We agree with Bremen that it did not assume any duty to patrol and inspect state highways.However, Bremen's policy, coupled with the disputed evidence regarding Charlotte Sizemore's report to Bremen, may give rise to an inference that Bremen assumed a duty to report the pothole to the State.Whether this is actually the case, as well as whether Bremen breached any such duty and whether that breach proximately caused Austin Sizemore's injury, are genuine issues of material fact that we may not here determine.As such, summary judgment for Bremen was inappropriate on the...