Spier by Spier v. City of Plymouth

• Decision Date: 17 June 1992
• Docket Number: No. 25A05-9111-CV-358,25A05-9111-CV-358
• Citation: 593 N.E.2d 1255
• Parties: Jeffrey Todd SPIER, a minor, BY his father and natural guardian Christopher T. SPIER and Christopher T. Spier in his own behalf, Appellant-Plaintiffs, v. The CITY OF PLYMOUTH, Indiana, Joseph Hartwell and Melanie L. White, Appellee-Defendants.
• Court: Indiana Appellate Court

Page 1255

593 N.E.2d 1255

Jeffrey Todd SPIER, a minor, BY his father and natural guardian Christopher T. SPIER and Christopher T Spier in his own behalf, Appellant-Plaintiffs, v. The CITY OF PLYMOUTH, Indiana, Joseph Hartwell and Melanie L. White, Appellee-Defendants.

No. 25A05-9111-CV-358.

Court of Appeals of Indiana,

Fifth District.

June 17, 1992.

Rehearing Denied Aug. 3, 1992.

Ralph R. Huff, Jones, Huff & Palmer, Plymouth, for appellant-plaintiffs.

Robert T. Keen, Jr., Larry L. Barnard, Miller, Carson & Boxberger, Fort Wayne, for appellee-defendants.

SHARPNACK, Judge.

Christopher Spier, in his capacity as parent and natural guardian of Jeffrey Spier and in his individual capacity, appeals the summary judgment entered by Fulton Circuit Court in favor of the defendant City of Plymouth. We reverse.

In this appeal the Spiers raise three issues, which we restate below:

1. Do the undisputed facts establish that the city had no constructive knowledge before the accident that the sign had rusted through and was thus in a condition likely to cause injury?

2. Did the trial court improperly consider an affidavit which the city tendered in support of its motion for summary judgment?

3. May the city establish that it is immune from liability upon a showing that an act of a third person was a proximate cause of Jeffrey's injury without regard to whether an act of the city was also a proximate cause of the injury?

The following are the facts presented in the light most favorable to the Spiers, who were the nonmoving parties. On June 20, 1989, Jeffrey Spier, a five year old child, was at the home of his baby sitter, Melanie White. In the early afternoon, Jeffrey and another child, Jessica Leech, were playing on a sidewalk near White's house. Jessica swung herself around the signpost, and it fell over. The children attempted to replace the sign. When they did so, it fell again and severely injured Jeffrey's hand.

The signpost was made of either steel or iron. The signpost had rusted through around almost its entire circumference near its base, the point at which the post broke through. The extent of the rust suggested that the rust had been building up for a long time.

One of White's neighbors, Joseph Hartwell, had landscaped and mulched the right-of-way on which the signpost was located. The rusted area of the signpost was immediately above the level of the mulch.

The city was aware that steel and iron signposts are likely to rust near ground level. In his affidavit, one of the Spiers' witnesses, a former superintendent of the Plymouth Street Department, stated that several of these signposts had rusted through and fallen over during his tenure with the department. The city was aware of the problem and instituted a program of inspection and maintenance in order to prevent rust. As part of this program, a rotation system was set up under which a portion of the signposts in the city were inspected and repainted every summer. This resulted in every signpost being inspected and repainted every two to three years. Signposts that were rusted through or otherwise damaged were replaced as part of the program. The city abandoned the maintenance program in 1988.

One of the residents of the neighborhood, Theodore Klingerman, gave a statement to a claims adjuster who was investigating the accident on behalf of the city's insurance carrier. Klingerman stated that he saw a boy shake and bend the signpost on the day before the accident. Klingerman died before the city filed its motion for summary judgment. The statement given to the adjuster was presented as a affidavit in support of the city's motion for summary judgment. Spiers do not challenge the adequacy of the statement to qualify as an affidavit.

When we review a trial court's entry of summary judgment, we are bound by the same standard as the trial court: we must consider all of the pleadings, affidavits, depositions, admissions, answers to interrogatories, and, where applicable, testimony in the light most favorable to the nonmoving party in order to determine whether a genuine issue of material fact remains for resolution by the trier of fact. Ayres v. Indian Heights Volunteer Fire Department (1986), Ind., 493 N.E.2d 1229, 1234. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue. If we have any doubts concerning the existence of a genuine issue of material fact, we must resolve those doubts in favor of the nonmoving party, and we must reverse the entry of summary judgment. Woodward Insurance, Inc. v. White (1982), Ind., 437 N.E.2d 59, 62. However, if no genuine issue of material fact exists, and if the moving party is entitled to judgment as a matter of law, we must affirm the entry of summary judgment. Id. The moving party bears the burden of showing the absence of a factual issue and that he is entitled to judgment as a matter of law. Norman v. Turkey Run Community School Corp. (1980), 274 Ind. 310, 312, 411 N.E.2d 614, 615.

The Spiers argue that a genuine dispute of material fact exists on the issue of whether the city had actual or constructive notice of the dangerous condition of the signpost. In order to establish that the city had no notice of the dangerous condition of the signpost, the city offered the affidavit of Louis Hite, Plymouth's current street superintendent. Hite stated that, "The City of Plymouth Street Department has never experienced a problem with a pole of a street sign rusting to such a degree as to cause it to fall." (Record, p. 48). The city also states that neither White nor Hartwell had noticed rust on the sign before the accident.

In response to the city's factual assertions, the Spiers offered the affidavits of Roger Smiley and Glen Sarber. Smiley, a Plymouth police officer, stated that he had examined the post immediately after the accident and taken pictures which showed "the signpost where it had broken off and [which showed] that said signpost was rusted through at that point around most of its circumference and that the metal broke off at at the points on said circumference where the sign was not yet completely rusted through." (Record, p. 54). He further noted that the pictures showed that mulch had been placed around the signpost and that the signpost had rusted immediately above the level of the mulch. (Record, p. 54). As noted earlier, Sarber stated that a number of Plymouth's signposts had rusted through and fallen over during the years while he was employed in the street department; that, because of the rusting problem, the department instituted an inspection and maintenance program during his tenure with the department; that, in his experience, such a program is necessary to maintain the posts in good condition; and that the department discontinued the program after he left the department. (Record, pp. 60-63).

The Spiers concede that there is no evidence that the city had actual notice that the sign was severely rusted, and we accept that the city did not have actual knowledge of the dangerous condition. However, the Spiers did present sufficient evidence to create a factual dispute as to whether the city had constructive knowledge of the condition of the signpost. The state and its political subdivisions have a duty to maintain and repair the roads within their control. Miller v. State Highway Department (1987), Ind.App., 507 N.E.2d 1009, 1012. Included in this duty is the duty to maintain and repair traffic control signs. Id. This duty does not attach, however, unless the city has actual or constructive knowledge of a dangerous situation. Tucher v. Brothers Auto Salvage Yard (1991), Ind.App., 564 N.E.2d 560, 564; Miller, 507 N.E.2d at 1013. The question of whether the municipality has constructive knowledge of the condition is normally one to be decided by the finder of fact. Tucher, 564 N.E.2d at 564.

The Spiers tendered affidavits which raised the inference that the signpost must have been rusting for a long time in order to have corroded to the point that it fell over. These affidavits created a material issue of fact on the question of whether the condition existed for a sufficient period for the city to be charged with constructive knowledge of its existence. ¹ The trial court erred in entering summary judgment and keeping the question from the trier of fact.

In response, the city asserts that any rusting problem was not visible and could not have been noticed by agents of the city. In addition, the city states that the uncontroverted facts establish that the signpost did not fall because it had rusted through but because a teenager had broken the signpost the day before the accident. The city argues that it should not be charged with constructive knowledge of any dangerous condition allegedly caused by this unknown teenager.

Because there is a conflict as to a material issue of fact on this point, the trial court should not have entered summary judgment for the city. The Smiley and Sarber affidavits raise the inferences that the city's street department knew that the type of signpost involved in the accident was susceptible to rust and that rusted signs had broken in the past. In addition, the Smiley affidavit and pictures support the inference that the signpost in question had rusted through and broken at the point of the rust through. Finally, the Sarber affidavit supports the inference that the city knew of the importance of regular inspection and maintenance of the signposts to prevent rust through accidents, but chose to abandon the inspection and maintenance program nevertheless.

The affidavits that the city offered in support of its motion do not establish without contradiction that the city had no constructive knowledge of the dangerous condition of the signpost. The Hite affidavit which the city offered in support of its...