Thomas v. State
| Decision Date | 18 June 1998 |
| Docket Number | No. 37A03-9702-CV-52,37A03-9702-CV-52 |
| Citation | 698 N.E.2d 320 |
| Parties | Itha D. and Gary THOMAS, Appellants-Plaintiffs, v. STATE of Indiana, Indiana DEPARTMENT OF TRANSPORTATION, Baker Concrete Construction Company, Inc., Shaffer Trucking Inc., Dyer Construction Corporation, and Dennis Boggs, Appellees-Defendants. |
| Court | Indiana Appellate Court |
In this personal injury action, Itha D. and Gary Thomas appeal from the trial court's grant of two summary judgment motions, the first entered in favor of the owner and operator of the semi-tractor trailer that struck Itha Thomas, the second entered in favor of the prime contractor and subcontractor on a highway construction project where Itha Thomas was injured. The Thomases present two issues for our review which we restate as:
I. Whether the operator of the semi-tractor trailer owed Itha Thomas a legal duty and, if so, whether the designated evidence negates either the breach of duty or proximate causation elements of the negligence claim.
II. Whether the designated evidence negates at least one element of the negligence claims against the prime contractor and subcontractor.
We reverse and remand.
The facts construed in favor of the Thomases show that, on the afternoon of March 12, 1993, Tri-Union Express employee Itha Thomas ("Thomas") hauled culvert and piping material in an eighteen wheel flat-bed semi-tractor trailer to a construction site located on Interstate 65 in Jasper County. Baker Concrete Construction, Inc. ("Baker Concrete") was the prime contractor on a project conducted by the State of Indiana and the Indiana Department of Transportation; Dyer Construction Corporation ("Dyer Construction") was the subcontractor responsible for installation of drainage culverts and piping. Pursuant to directions from Dyer Construction employees, Thomas parked her truck on the paved shoulder, her tires resting two feet from the edge of the traveled portion of the highway. A Dyer Construction red pick-up truck was positioned approximately fifty feet behind Thomas. It bore an orange diamond-shaped warning sign on its rear tailgate, two amber warning lights on its top and one red warning flag in each rear tie-down hole.
In accordance with her normal procedure, Thomas loosened the straps which secured her cargo and, after a Dyer Construction employee removed part of the construction material, she began tightening the straps from the driver's side, the side nearest the traveled portion of the highway. During the same time frame, Dennis Boggs ("Boggs") was driving an eighteen wheel semi-tractor trailer northbound in the right-hand lane of the four-lane divided highway. The semi was owned by Boggs' employer, Shaffer Trucking, Inc. ("Shaffer"). Having traveled this area on a regular basis, Boggs was aware that off-road construction was underway. The weather was clear and, from approximately two thousand feet away, Boggs noticed a "Survey Crew" sign. He then observed Thomas' truck parked on the right-hand shoulder of the highway and saw Thomas at the right rear passenger side of the vehicle. Boggs stated he reduced his 55 to 60 m.p.h. speed, but he did not downshift from the highest gear or apply his brakes. Another semi-tractor trailer traveling in the left lane prevented Boggs from moving into that lane, and Boggs struck Thomas as she finished tightening the front strap. The impact tore Thomas' boot from her leg and caused serious injuries to her leg.
The Thomases filed suit against the State of Indiana, the Indiana Department of Transportation, Boggs, Shaffer, Dyer Construction and Baker Concrete, alleging various instances of negligence. 1 Boggs and Shaffer jointly filed a motion for summary judgment. Following a hearing, the trial court found no evidence of negligence and granted their motion. Dyer Construction separately moved for summary judgment, and Baker Concrete joined in that motion. In entering summary judgment in favor of the contractors, the trial court determined Dyer Construction and Baker Concrete owed Thomas a duty. However, because the court concluded Thomas either stepped or backed into the traveled portion of the highway, it found no evidence of a breach of duty which proximately caused Thomas' injuries. The Thomases now appeal the orders granting summary judgment which were consolidated for purposes of this appeal.
Our standard of review is well-settled. 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. Trial Rule 56(C). The burden is on the moving party to prove it is entitled to summary judgment. Squires v. Utility/Trailers of Indianapolis, Inc., 686 N.E.2d 416, 420 (Ind.Ct.App.1997). In this case, the trial court entered findings which aid our review but are not binding on this court. Althaus v. Evansville Courier Co., 615 N.E.2d 441, 444 (Ind.Ct.App.1993), reh. denied. Instead, when reviewing a summary judgment ruling, we stand in the shoes of the trial court. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), reh. denied, trans. denied. We do not weigh evidence, but construe the pleadings and designated materials in a light most favorable to the non-movant, giving careful scrutiny to assure that the losing party is not improperly denied its day in court. Miller v. Memorial Hosp. of South Bend, Inc., 679 N.E.2d 1329, 1330 (Ind.1997).
The negligence cause of action, in which this case is couched, is comprised of three elements: 1) a duty on the part of the defendant to conform his conduct to the standard of care arising from his relationship with the plaintiff; 2) the defendant's failure to conform to the requisite standard of care; and 3) injury to the plaintiff that was proximately caused by the breach. Shepard by Shepard v. Porter, 679 N.E.2d 1383, 1388 (Ind.Ct.App.1997), reh. denied. Summary judgment is rarely appropriate in negligence actions. Colen v. Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind.Ct.App.1995), reh. denied, trans. denied. Nevertheless, one is entitled to judgment as a matter of law when undisputed material facts negate at least one element of a plaintiff's claim. Id.
The Thomases first allege that the trial court improperly entered summary judgment in favor of Boggs and Shaffer. 2 Specifically, they claim that Boggs owed them a duty to maintain a lookout and to properly control his vehicle. They further assert there are genuine issues of material fact regarding whether Boggs breached those duties and whether that breach proximately caused Thomas' injuries. We agree.
All drivers are under a common law duty to maintain a proper lookout while operating their vehicles, construed as a duty to see that which is clearly visible or which in the exercise of due care would be visible. Thornton v. Pender, 268 Ind. 540, 544, 377 N.E.2d 613, 617 (1978), reh. denied; see also Nesvig v. Town of Porter, 668 N.E.2d 1276, 1281 (Ind.Ct.App.1996); Smith v. Beaty, 639 N.E.2d 1029, 1032-33 (Ind.Ct.App.1994). 3 This includes the duty to maintain a lookout for construction workers on the visible but untraveled portion of the highway. See Smith, 639 N.E.2d at 1033 ().
Regarding breach of that duty, Boggs emphasizes that he last saw Thomas at the right rear of her semi, away from the highway, and is not liable for failing to anticipate her moving into a "zone of risk." Boggs' argument begs the question whether Boggs failed to observe Thomas near the roadway because he did not maintain a proper lookout. See Springman by Springman v. Hall, 642 N.E.2d 521, 524 (Ind.Ct.App.1994). Whether a motorist complied with the standard of ordinary care in keeping a lookout is generally a question for the fact-finder. Smith, 639 N.E.2d at 1033. In this case, Boggs noticed Thomas from approximately two thousand feet away when she was near the right side of her truck. Boggs did not observe Thomas on the driver's side although she was apparently there long enough to tighten a strap. 4 Nor did Boggs see the Dyer Construction red pick-up truck parked behind Thomas' truck with its warning sign, amber warning lights and red flags. This creates a genuine issue of material fact as to whether Boggs maintained a proper lookout.
Motorists also have a duty to use due care to avoid a collision and to maintain their vehicles under reasonable control. Id. at 1032; see also IND.CODE § 9-21-5-1 (Supp.1992) (); § 9-21-5-4 (Supp.1992) (); § 9-21-8-37 (Supp.1992) (). Boggs insists there is no evidence he failed to use due care. He points out that he was driving well within the posted speed limit. 5 Even if Boggs' statement is true, which involves a matter of credibility, Boggs did not downshift from the highest gear nor apply his brakes before striking Thomas. The question then is not whether Boggs was traveling within the posted speed limit but whether Boggs' speed was greater than that which was reasonable and prudent under...
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