Stephenson v. Ledbetter

• Citation: 575 N.E.2d 1035
• Decision Date: 05 August 1991
• Docket Number: No. 49A04-9007-CV-343,49A04-9007-CV-343
• Parties: Jamise (Miller) STEPHENSON, Administratrix of the Estate of David Miller, Appellant-Plaintiff, v. Gary LEDBETTER, Appellee-Defendant.
• Court: Court of Appeals of Indiana

Page 1035

575 N.E.2d 1035

Jamise (Miller) STEPHENSON, Administratrix of the Estate of David Miller, Appellant-Plaintiff, v. Gary LEDBETTER, Appellee-Defendant.

No. 49A04-9007-CV-343.

Court of Appeals of Indiana,

Fourth District.

Aug. 5, 1991.

George Clyde Gray, Steven R. Fox, Gray Robinson Eckert & Ryan, Indianapolis, for appellant.

Edward R. Hannon, Douglas A. Tresslar, Harrison & Moberly, Indianapolis, for appellee.

MILLER, Judge.

David Miller was killed after a night at the Marion County Fair Grounds where he spent the evening drinking and watching the demolition derby with some friends. On the way home, Miller was hanging over the side rail of companion Gary Ledbetter's pick-up truck when he fell from the truck and was killed. Miller's wife, Jamise Stephenson, sued Ledbetter; however, the court granted summary judgment in favor of Ledbetter, finding that Ledbetter, as the driver of the truck, had no duty to act to avoid the harmful, reckless antics of Miller, nor was there a genuine issue of material fact with regard to Ledbetter's negligence. Stephenson appeals, claiming that summary judgment should not have been granted.

We reverse, finding that Ledbetter, as the driver of the truck, had a duty to use reasonable care for Miller's safety, and the question of whether he exercised such care under the circumstances, is a question of fact.

DISCUSSION AND DECISION

Here, Ledbetter was the moving party. Thus, he had a duty through the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony, if any, to show that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Willsey v. Peoples Federal Savings & Loan (1988), Ind.App., 529 N.E.2d 1199. We are aware that summary judgment is rarely appropriate in negligence actions; Hale v. Community Hospital of Indianapolis, Inc. (1991), Ind.App., 567 N.E.2d 842, however, if Ledbetter established a lack of genuine issues of material fact, the burden was on Stephenson to present specific facts demonstrating a genuine issue for trial. Id.; Elkhart Community School Corp. v. Mills (1989), Ind.App., 546 N.E.2d 854. A genuine issue exists if the trial court would be required to resolve disputed facts decisive to the action or to a relevant secondary issue. Taylor-Chalmers, Inc. v. Board of Commissioners (1985), Ind.App., 474 N.E.2d 531. On appeal, we will affirm the grant of summary judgment if sustainable on any theory or basis in the record. Willsey, supra.

Here, the facts establish that Ledbetter was driving while Miller was hanging over the side of Ledbetter's truck, that Ledbetter was not speeding, that he was not intoxicated (he did have a trace of alcohol in his blood), and that he was not otherwise operating his truck in a reckless manner. Stephenson did not present evidence to contest these facts. ¹ She argues that assuming Ledbetter was driving safely, he had a duty to take some affirmative action for Miller's safety and that the question of Ledbetter's negligence should be resolved by the trier of fact.

The sole issue--which the trial court resolved in favor of Ledbetter--is whether Ledbetter owed any duty to take some action on Miller's behalf, other than to drive his truck in a safe manner. Stephenson argues that the duty owed to Miller was a duty to use reasonable care for the safety of his passengers in the operation of his truck, citing Munson v. Rupker (1925), 96 Ind.App. 15, 148 N.E. 169. She argues that reasonable persons could differ as to whether or not Ledbetter exercised that care; therefore, summary judgment is inappropriate. She suggests that a trier of fact might determine that Ledbetter had a duty to slow the truck, to tell Miller to get off or to stop the truck altogether. Ledbetter argues that there was no special relationship between himself and Miller; therefore, he had no duty to come to Miller's rescue. Further, he argues there is no evidence that he operated his truck recklessly or negligently.

In Munson, this court followed the common law rule ² that a driver of a motor vehicle owes a duty to exercise reasonable care in its operation to avoid injury to passengers and held:

He who enters an automobile to take a ride with the owner, ... takes the automobile and the driver as he finds them. But when the owner of the automobile starts it in motion, he, as it were, takes the life of his guest into his keeping, and in the operation of such car, he must use reasonable care not to injure any one riding therein with his knowledge and consent.... The law exacts of one who puts a force in motion that he shall control it with skill and care in proportion to the danger created.

Id. at 29-30, 148 N.E. at 173-74. The Munson decision led to the passage of a motor vehicle guest statute, Ind.Code Sec. 9-3-3-1. Clipp v. Weaver (1983), Ind., 451 N.E.2d 1092. ³ The statute, as originally enacted, modified the common rule that the operator of a motor vehicle has a duty to use reasonable care for the safety of his passengers by barring gratuitous passengers from recovering for damages caused by a driver's negligence. ⁴ See Cook v. Mercury Lumber Co. (1977), 171 Ind.App. 668, 359 N.E.2d 600. In 1984, the legislature amended the guest statute to bar only immediate family members and hitchhikers from recovering for such damages. ⁵

Here, the guest statute is inapplicable because Miller does not fall within one of the categories enumerated in the statute. We therefore hold that the common law rule announced in Munson--that the driver of a motor vehicle has a duty to use reasonable care for the safety of his passengers--applies to this case.

Ledbetter argues that, absent a special relationship between himself and Miller, there was no duty to take affirmative action to prevent Miller from harming himself. He argues that there is no "special relationship" between a driver and his passengers which would impose a duty to take affirmative action, citing Senese v. Peoples (M.D.Pa.1985), 626 F.Supp. 465, where Senese was injured when he suddenly attempted to exit the cab of Peoples' moving pickup truck. The trial court granted summary judgment in favor of Peoples, holding there was no duty on the part of a driver to attempt to prevent a passenger from injuring himself when the passenger has placed himself in a position of peril. In reaching its decision, the court recognized that there were no Pennsylvania cases regarding "the duty of care owed by the defendant in a case such as this". Id. at 467. However, the court relied on Restatement (Second) of Torts Secs. 314, 314A in concluding that there was no special relationship between Peoples and his passenger. Absent the special relationship, there was no duty to act to rescue Senese.

We are not bound by the decision reached in Senese. Nor are we persuaded by the court's reasoning in that case. The Senese court was obviously deciding a novel question under Pennsylvania law--under which the duty of care owed by a defendant to passenger was not entirely clear. However, in Indiana, there is a duty imposed on the driver of a vehicle to use reasonable care for the safety of his passengers. Munson, supra. Further, there is no indication in Senese that the driver knew the passenger was trying to climb out the window. Here, it is undisputed that Ledbetter knew Miller was riding on the side of the truck.

A situation similar to the one presented here was addressed in Johnson v. Pedicord (1937), 105 Ind.App. 71, 10 N.E.2d 295. Pedicord was riding on the fender of Johnson's farmtruck. Johnson told Pedicord to get off the fender; however, the evidence was disputed as to whether Pedicord heard Johnson's request. On appeal, Johnson argued that Pedicord assumed the risk and that he was entitled to a jury instruction in this regard. In holding...