Wilkerson v. Harvey

• Decision Date: 10 September 2004
• Docket Number: No. 29A04-0401-CV-49.,29A04-0401-CV-49.
• Citation: 814 N.E.2d 686
• Parties: Jennifer WILKERSON, Appellant-Plaintiff, v. Sarah Willis HARVEY f/k/a Sarah Willis, Appellee-Defendant.
• Court: Indiana Appellate Court

814 N.E.2d 686

Jennifer WILKERSON, Appellant-Plaintiff, v. Sarah Willis HARVEY f/k/a Sarah Willis, Appellee-Defendant.

No. 29A04-0401-CV-49.

Court of Appeals of Indiana.

September 10, 2004.

Timothy C. Caress, Marie Troendle Greer, Cline Farrell Christie Lee & Caress, P.C., Indianapolis, IN, Attorneys for Appellant.

W. Brent Threlkeld, Scott M. Dillon, Threlkeld Reynolds, LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

The trial court granted Sarah Harvey's request for summary judgment in a negligence suit brought against her by Jennifer Wilkerson for damages Wilkerson suffered in an auto collision with Harvey. Wilkerson raises numerous issues on appeal, which we consolidate and restate as:

1. Whether Harvey's alleged failure to drive at an appropriately reduced speed as she approached an intersection raises a genuine issue of material fact about whether Harvey breached a duty to Wilkerson;

2. Whether Harvey's alleged failure to operate her motor vehicle at an appropriately reduced speed as she approached a special hazard raises a genuine issue of material fact as to whether she breached a duty to Wilkerson; and 3. Whether Harvey's alleged breach of general duties with respect to the operation of her motor vehicle raises a genuine issue of material fact about whether she breached a duty to Wilkerson.

We reverse.

FACTS AND PROCEDURAL HISTORY

U.S. 52 is a four-lane divided highway with two northbound and two southbound lanes. The speed limit is 55 miles per hour. U.S. 52 intersects State Route 28 ("S.R.28"), which runs east from U.S. 52.

The two highways intersect at a perpendicular angle. U.S. 52 is the preferential highway, and vehicles on U.S. 52 are not subject to any traffic control device at the intersection. Vehicles traveling southbound on U.S. 52 may legally turn left across the northbound lanes of U.S. 52 and onto S.R. 28 by first entering the paved median separating northbound and southbound U.S. 52. Such turning vehicles have a yield sign and must yield to northbound traffic on U.S. 52.

At approximately noon on December 25, 2000, Harvey was traveling northbound along U.S. 52 at 55 miles per hour in her 1999 Ford Contour. Jennifer and Richard Wilkerson were traveling south on U.S. 52 in a Chevrolet S-10 truck. As Harvey approached the intersection of U.S. 52 and S.R. 28, Richard Wilkerson entered the U.S. 52 southbound median, failed to obey the posted yield sign, and turned directly into the path of Harvey's vehicle. Harvey did not see the Wilkerson vehicle prior to the instant before impact. The collision left Jennifer Wilkerson a quadriplegic.

The Wilkersons sued Harvey for negligence. Harvey filed a motion for summary judgment. The trial court concluded as follows:¹

In the case at bar it is undisputed, and in fact, confirmed by the testimony of the disinterested witness, that [Wilkerson's] vehicle, while subject to a yield sign, turned into the path of [Harvey's] vehicle wherein she had the right-of-way and was driving at an appropriate speed. The Court concludes that under such circumstances [Harvey] did not have a duty to anticipate that [Wilkerson] would pull out in front of her vehicle. Notwithstanding [Wilkerson's] argument that it was "possible" (pursuant to the Deposition of [Harvey]) that she was traveling at a rate of speed somewhere between 55 and 60 miles per hour, the Court finds such assertions to be speculative and insufficient to overcome summary judgment.

The Court, after consideration of the record, concludes that there is no evidence, beyond speculation, that [Harvey] breached the duties discussed hereinabove, including each of the "general duties" cited by [Wilkerson].

The court further concludes that expert evidence cited by [Wilkerson] in her Supplemental Brief is also speculative in nature. There are no facts which could give rise to any inference that [Harvey's] driving was the proximate cause of the collision.

(Appellant's App. at 140-141.)

DISCUSSION AND DECISION

To sustain an action for negligence, a plaintiff must establish: 1.) a duty owed by the defendant to conform her conduct to a standard of care arising from her relationship with the plaintiff; 2.) a breach of that duty; and 3.) an injury proximately caused by the breach of that duty. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991).

Our standard of review for a trial court's grant of summary judgment is well settled. Summary judgment is appropriate only where the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Corr v. Am. Family Ins., 767 N.E.2d 535, 537 (Ind.2002). The moving party must designate sufficient evidence to eliminate any genuine factual issues, and once the moving party has done so, the burden shifts to the nonmoving party to come forth with contrary evidence. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind.2002). The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. Id.

Summary judgment is rarely appropriate in negligence cases. Tibbs v. Huber, Hunt, & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996). Issues concerning negligence, causation and reasonable care are more appropriately determined by the trier of fact. Ousley v. Bd. of Comm'rs of Fulton County, 734 N.E.2d 290, 293 (Ind.Ct.App.2000), trans. denied 753 N.E.2d 5 (Ind.2001). Any doubt as to the existence of a genuine issue is to be resolved against the proponent of the motion and, accordingly, in favor of the non-movant. Id.

1. Approaching an Intersection

Our supreme court has held that proof of a violation of a safety regulation creates a rebuttable presumption of negligence. Witham v. Norfolk & W. Ry. Co., 561 N.E.2d 484, 485 (Ind.1990), reh'g denied. Ind.Code § 9-21-5-4 states:

The driver of each vehicle shall, consistent with section 1² of this chapter, drive at an appropriate reduced speed as follows:

1) When approaching and crossing an intersection or railway grade crossing.

2) When approaching or going around a curve.

3) When approaching a hill crest.

4) When traveling upon a narrow or winding roadway.

5) When special hazard exists with respect to pedestrians or other traffic by reason of weather or highway conditions.

(footnote added).

Wilkerson contends Harvey's failure to reduce her speed as she approached the intersection with S.R. 28 violated Ind.Code § 9-21-5-4(1) and created a rebuttable presumption of negligence. Wilkerson argues the trial court erred in focusing on whether Harvey was speeding at the time of the collision, rather than examining whether she drove at an "appropriate reduced speed."

Wilkerson relies on her witness Gary Barnett, an expert in the field of motor vehicle accident reconstruction, to conclude this accident would have been avoided had Harvey been driving at an "appropriate reduced speed." Barnett made the following conclusions:

A. If the approaching 1999 Ford had reduced its speed as the vehicle approached the intersection, as required by Indiana law, starting at three hundred feet before the intersection, this vehicle, just by taking their foot off the gas pedal, would have slowed down to approximately 41 MPH and taken 4.25 seconds to do so. This is utilizing a norm of .15 f. deceleration factor.

B. Since, according to a witness, the Chevy vehicle was already moving at the edge of the road as it entered the intersection, starting approximately at 4.0 MPH. this vehicle would take 2.28 to 2.05 seconds to cross the median lane of travel.

C. Utilizing the longest time period for the Chevy to cross the median lane of travel from a dead stop at the edge of the road, 2.28 seconds, the approaching Ford, utilizing the driver's statement of 55 MPH, could have been as close as approximately 170 feet prior to the intersection, taking their foot off the gas, and this crash would not have occurred.

D. A vehicle traveling 55 MPH would be moving at 80.6 feet per second.

(Appellant's App. at 21.)

Harvey points to several Indiana decisions in favor of drivers on a preferred road who are involved in collisions at an intersection as a result of the other party's negligence. In Berg v. Glinos, 538 N.E.2d 979 (Ind.Ct.App.1989), the plaintiff's vehicle stopped at a stop sign. The defendant saw the plaintiff's vehicle sitting at the sign for an unreasonably long time. The defendant slowed his vehicle by taking his foot off the accelerator and coasting toward the intersection. The plaintiff suddenly pulled in front of the defendant's vehicle causing a collision. The court decided in favor of defendant holding that unless the party has notice to the contrary, he has the right to assume others who owe him a duty of reasonable care will exercise such care. Id. at 981.

The exercise of ordinary and reasonable care does not require the preferred driver to be constantly aware of actions of non-preferred drivers in plain view. Id. at 982. A motorist is not required to anticipate extraordinary hazards nor to constantly expect or search for unusual dangers. Id. The motorist on the preferred road is under no duty to anticipate that the motorist on the non-preferred road, who is stopped at a stop sign, will pull out in front of his vehicle. Id.

In Anderson v. Pre-Fab Transit Co., Inc., 409 N.E.2d 1157 (Ind.Ct.App.1980), the defendant failed to stop at a red light and collided with the plaintiff. We held that if the plaintiff was not on notice the other motorist would violate the law, he had no duty to look both directions on the non-preferred road to see if any approaching drivers were going to violate the law. Id. at 1163. We noted further that the preferred driver has the right to assume the non-preferred driver will obey the traffic laws, and is not required to proceed overly cautiously into an intersection and to be cognizant of everything in plain view. Id at 1164...