Templeton v. City of Hammond
| Decision Date | 29 May 1997 |
| Docket Number | No. 45A04-9608-CV-349,45A04-9608-CV-349 |
| Citation | 679 N.E.2d 1368 |
| Parties | Merrianne M. TEMPLETON, Appellant-Plaintiff, v. CITY OF HAMMOND, Indiana; City of Hammond Street Department; City of Hammond Sanitary District; City of Hammond, Indiana Engineering Department; City of Hammond, Indiana Public Works Department, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Plaintiff-Appellant Merrianne Templeton (Templeton) appeals from the trial court's grant of summary judgment in favor of Defendants-Appellees City of Hammond, Indiana; City of Hammond Street Department; City of Hammond Sanitary District; City of Hammond, Indiana Engineering Department; and City of Hammond, Indiana Public Works Department (hereinafter collectively as the "City of Hammond" or "the City").
We affirm in part, reverse in part, and remand for trial.
Templeton raises several issues, which we consolidate and restate as follows:
1. Whether the trial court erred when it determined as a matter of law that the undisputed evidence established that the City of Hammond did not have constructive notice of the alleged crosswalk defect.
2. Whether the trial court erred when it determined that Templeton was contributorily negligent as a matter of law.
The incident which gave rise to this suit occurred on November 18, 1992, when Templeton tripped and fell on a public crosswalk in Hammond, Indiana. The undisputed facts are as follows. As she had done many times in the past, Templeton got off of the public bus and crossed the intersection of Sibley Street and Morton Court to go to the Walgreen's Drug Store. Sibley Street runs one way east, and Morton Court runs north-south. In about the middle of the crosswalk, Templeton tripped and fell forward.
Templeton filed her complaint against the City of Hammond alleging that her fall was caused by a defective condition of the street. Specifically, she alleged that the City of Hammond was negligent in failing to inspect, maintain and repair the crosswalk and for its failure to warn against the hazard. The City of Hammond filed its answer wherein it denied all material allegations and raised the affirmative defenses of contributory negligence and incurred risk. The City then moved for summary judgment arguing that it had no knowledge of a dangerous defective condition and therefore no duty to repair the alleged defective condition, and that Templeton was contributorily negligent. 1
A hearing was held on May 1, 1996, wherein the trial court heard argument by the parties. At the beginning of the hearing, Templeton conceded that the City of Hammond Sanitary District was entitled to summary judgment as that agency had no role with regard to street maintenance. Following a brief hearing, the trial court also granted summary judgment in favor of the City of Hammond as follows:
(2) That the Plaintiff, having traveled the path where she ultimately fell many times both before and after her fall without incident, this Court must conclude that on the day she fell she was not exercising due care for her own safety and is guilty of contributory negligence as a matter of law.
(3) That the affidavit submitted by Defendants, which affidavit is unopposed by Plaintiff, establishes that these Defendants had no prior actual or constructive knowledge that a hazardous defect existed in the street at the place where Plaintiff tripped and fell and cannot be held liable even assuming a hazardous condition existed.
(4) That no questions of material fact exist, and these Defendants are entitled to Summary Judgment as a matter of law.
(R. 225). Templeton appeals.
Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). When reviewing a motion for summary judgment, we apply the same standard as the trial court. Gilliam v. Contractors United, Inc., 648 N.E.2d 1236, 1238 (Ind.Ct.App.1995), trans. denied. All facts and inferences must be liberally construed in the light most favorable to the non-moving party. Haas Carriage, Inc. v. Berna, 651 N.E.2d 284, 287 (Ind.Ct.App.1995).
When reviewing summary judgment rulings, we may consider only those portions of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters designated to the trial court by the moving party for purposes of the motion for summary judgment. T.R. 56(C), (H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). The party moving for summary judgment 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. Hermann v. Yater, 631 N.E.2d 511, 513 (Ind.Ct.App.1994), reh'g denied. Once the movant satisfies this burden, the burden shifts to the non-moving party to produce specifically designated facts showing the existence of a genuine issue. Id. Summary judgment is rarely appropriate in negligence cases. Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996) ().
The City of Hammond argues as a threshold issue that Templeton has failed to comply with Ind. Trial Rule 56. Particularly, the City contends that Templeton failed to properly designate material in opposition to the City's motion for summary judgment.
In the present case, the trial court was presented with an uncomplicated case, both factually and in terms of the specific designations. At the May 1, 1996, hearing on the City of Hammond's motion for summary judgment, Templeton informed the court that, in opposition to the City's motion for summary judgment, she wished to designate and rely upon the same materials designated by the City of Hammond. (R. 141). Hence, the photographs were properly designated by the moving party and were available for use at the hearing.
Trial Rule 56 also requires that the non-movant specifically designate each issue of material fact the non-movant alleges precludes the entry of summary judgment. T.R. 56(C). A non-movant may not simply rest upon the allegations in his pleadings. Grose v. Bow Lanes, Inc., 661 N.E.2d 1220, 1224 (Ind.Ct.App.1996). Templeton did not respond to the City's motion for summary judgment. However, the amendments to Trial Rule 56 creating the requirement that material issues of fact and supporting evidence in opposition to summary judgment be designated did not alter the structural burden of summary judgment. Leons v. Bloemker, 649 N.E.2d 1041, 1044 (Ind.Ct.App.1995). The party moving for summary judgment still bears the burden of showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Id. If the movant fails to make this prima facie showing, then entry of summary judgment in favor of the movant is precluded, regardless of whether the non-movant did or did not designate facts and evidence in response to the motion for summary judgment. Id. (emphasis provided). Hence, because Templeton did not come forward with specific evidence in opposition to the City's materials, we accept the City's designated materials as true. However, the facts designated by the City do not support the entry of summary judgment in the City's favor.
Templeton contends that the trial court erred when it found as a matter of law that the City of Hammond did not have constructive knowledge of a dangerous defect in the crosswalk. Specifically, Templeton argues that the trial court erroneously relied upon the affidavit of Thomas Cairns, which was submitted by the City in support of summary judgment. Cairns is an adjuster retained by the City of Hammond to investigate the facts surrounding Templeton's claim. As part of his investigation, Cairns met with Templeton and her attorney and took six photographs of the intersection where the fall occurred. He further searched the City's records to ascertain whether any other complaints had been lodged regarding the condition of the intersection. He stated in his affidavit that "[he] searched the records of the City of Hammond and with the exception of the Notice of Tort Claim filed by [Templeton], [he] found no evidence or complaints of any kind that a dangerous or defective condition existed at the intersection of Morton Court and Sibley Street where Plaintiff states she fell." (R. 88). Cairns further stated as follows:
That your affiant has been investigating and adjusting claims for and against various municipalities for twenty seven years; that your affiant has been a pedestrian for forty-five years; that in his opinion the cracks which appear in the pavement at the intersection of Morton Court and Sibley Street are no different from the cracks which appear in the streets and sidewalks in every municipality in Lake County and do not constitute a dangerous or defective condition where the Plaintiff states she fell....
(R. 88). The trial court relied upon this affidavit in granting summary judgment for the City of Hammond. Particularly, the court held that the unopposed affidavit established that the City "had no prior actual or constructive knowledge that a hazardous defect existed" in the street where Templeton tripped and fell. (R. 225).
We first note that the affidavit was not unopposed by Templeton. At the summary judgment hearing, the following colloquy occurred between counsel for Templeton and ...
To continue reading
Request your trial
-
Udy v. Custer County
...owes a general duty of care to the wayfarers on the roads it owns, controls, or maintains."), Indiana, see Templeton v. City of Hammond, 679 N.E.2d 1368 (Ind.Ct.App.1997) ("The State and its counties have a duty to maintain and repair the roads within their control."), and elsewhere. See We......
-
Tat–yik Jarvis Ka v. City of Indianapolis
...of a defect means that the defect might have been discovered by the exercise of ordinary care and diligence. Templeton v. City of Hammond, 679 N.E.2d 1368, 1372 (Ind.Ct.App.1997) (citing Galbreath v. City of Logansport, 151 Ind.App. 291, 279 N.E.2d 578, 580 (1972)). “In other words, if the ......
-
Kader v. State
...(here, Kader's) negligence was " ‘so clear and palpable that no verdict could make it otherwise.’ " Templeton v. City of Hammond, 679 N.E.2d 1368, 1373 (Ind.Ct.App.1997).Here, there was contradictory evidence in the form of Kader's and Ballenger's deposition testimony concerning the conditi......
-
Chandradat v. State, Ind. Dept. of Transp.
...further observe that summary judgment is rarely appropriate in negligence claims. Crossno, 726 N.E.2d at 381; Templeton v. City of Hammond, 679 N.E.2d 1368, 1370 (Ind.Ct.App.1997). Rather, issues of negligence, contributory negligence, causation, and reasonable care are most appropriately l......