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by: Colin E. Flora
This week, we turn our attention to the interplay of Indiana’s summary judgment standard and invoking the defense of contributory negligence in a personal-injury case. We’ve discussed this issue before but will do so again in light of the Indiana Court of Appeals’ Gonzalez v. Ritz decision from earlier this week.
The facts of the case are fairly straightforward. A mother was out bicycling wither her two children. They came to a road crossing. The woman’s daughter crossed with ease while the mother and her son then waited for several cars to pass. After looking to see if the way was clear, the mother followed by the sun attempted to cross the road. While doing so, the son saw a police car coming and stopped moments before his mother was hit by the car.
A couple important points. First, the reason this is a contributory negligence issue and not a matter governed by Indiana’s Comparative Fault Act is because the driver was an on-duty government employee subject to the Indiana Tort Claims Act, which still utilizes the otherwise antiquated contributory-negligence standard. For those of you who are unfamiliar with the distinction, put simply, the comparative fault act permits a plaintiff to recover for injuries so long as he or she is not more than fifty percent at fault for the injury-causing event. Under the contributory-negligence standard, the defendant can be 99% responsible, but if the plaintiff’s conduct was even 1% suboptimal, then all recovery is barred. As the court wrote in Gonzalez, “So, even a slight degree of negligence on the part of Sheila, if proximately contributing to her claimed damages, will operate as a complete bar to the Gonzolazes’ action for damages[.]” It is a remarkably harsh result to be sure.
Second, an important fact was that the trail came to a stop sign right before the road, which “direct[ed] bicyclists to stop and yield to traffic on [the] Road.” That matters, because it cements the existence of a legal duty to yield to traffic.
Now, you may generally be thinking that a person who looks both ways before crossing the road and verifies that no vehicle is visible will be primed to win her case. And I absolutely agree. Yet, somewhat astonishingly, the defendants moved for summary judgment and were granted it by the trial court. Recall from our discussion earlier this month just how high the standard for summary judgment is in general under Indiana’s rules of procedure: “The movant must designate sufficient evidence to foreclose the nonmovant’s reasonable inferences and eliminate any genuine factual issues.” Typically, this is an even more difficult task in the context of personal injury cases, because, as the Indiana Supreme Court has said, “summary judgment is generally inappropriate in negligence cases because issues of contributory negligence, causation, and reasonable care are more appropriately left for the trier of fact.” But, “where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” The trial court thought it was one of the rare cases that merited summary disposition. The Court of Appeals and I both disagree with the trial court.
The first argument in favor of affirming summary judgment was that Sheila had violated a safety statute by crossing the street when there was a car present. The Court of Appeals didn’t buy that argument:
As an initial matter, the Appellees argued below, and argue here, that Sheila is presumed to have been contributorily negligent for failing to comply with a safety statute or statutes.Pursuant to Indiana Code section 9-21-11-2, “[a] person riding a bicycle or operating a Class B motor driven cycle upon a roadway has all the rights and duties under this article that are applicable to a person who drives a vehicle," and Appellees draw our attention to two specific safety statutes that they claim Sheila violated. The duties imposed under Indiana Code article 9-21 include that a driver must stop at an intersection where there is a stop sign erected, proceed cautiously, and yield to vehicles that are not required to stop, Ind. Code § 9-21-8-32, and a person may not start a vehicle that is stopped until the movement can be made with reasonable safety. Ind. Code § 9-21-8-23. Given that the statutes cited above require one to “proceed cautiously” after stopping at a stop sign and not move a vehicle until it can be done with “reasonable safety[,]” it is clear that one must essentially be found negligent to trigger the presumption of negligence, rendering the presumption inapplicable and superfluous, at least in this case and to the statutes cited by Appellee. In short, we reject Appellees’ assertion that a presumption of negligence stemming from the violation of a safety statute has any part to play in this case.
They also tried to argue that the fact that there was a collision proved a failure to yield the right-of-way:
Appellees also cite to Indiana Code section 9-21-8-33(b) for the proposition that “a collision is considered ‘prima facie evidence of the person’s failure to yield the right-of-way’” and seem to suggest that it should apply to Sheila. Subsection (b)’s application is not as broad as Appellants would have us believe, however. The full text of subsection (b) is as follows: “If a person who drives a vehicle is involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield sign without stopping, the collision is considered prima facie evidence of the person's failure to yield the right-of-way.” Because there is no evidence whatsoever that Sheila either rode her bicycle past a yield sign or did so without stopping, subsection (b) simply does not apply in this case. We urge counsel for Appellees to exercise more care in the future so as to avoid mischaracterizing authority in submissions to the court.
But that did not end the analysis. There was still the matter of whether Sheila failed to operate her bike in a safe manner. “The drivers of automobiles and the drivers of other vehicles, including bicycles, owe a duty to others lawfully using the public streets and highways, and are required to exercise due care in the use of their vehicles not to injure others.” But that duty is not one of unreasonably high care:
A motorist upon a highway regularly used by the public is not required to anticipate extraordinary hazards, nor to constantly expect and search for unusual dangers. However, a motorist is charged with the duty of exercising ordinary care to observe dangers and obstructions and is chargeable with notice of obstructions that a person of ordinary prudence would reasonably be expected to observe.To that end, keeping a proper lookout has been defined to mean the duty to see that which is clearly visible or that which in the exercise of due care would be visible.Generally, whether under the facts of a case a driver complied with the standard of ordinary care to keep a lookout for objects in the road is a question for the jury.
Instead, based upon the evidence, the Court of Appeals concluded that there is evidence for a jury to decide either way as to whether Sheila was negligent in crossing the road when she did. She testified that she always stopped and looked before crossing and her son testified that the car was going extremely quickly and that he too had looked prior to beginning to cross and saw no vehicle. Reading those facts, can you think this is anything other than a he-said-she-said situation? In the end, you have to choose who to believe and that is what juries do.
There is an interesting point discussed at the end of the decision which merits note. The defendants argued that Sheila’s testimony about always stopping before crossing the road—she testified that she could not remember the specific accident—would be inadmissible at trial:
Appellees also make arguments related to alleged shortcomings of various pieces of designated evidence. Appellees contend that Sheila’s testimony that she habitually stopped and looked both ways at intersections while riding her bicycle was immaterial and very likely inadmissible to boot. A person’s habits can certainly be relevant to the question of how that person acted on a particular occasion. This is recognized by Indiana Rule of Evidence 406, which provides that
[e]vidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Sheila’s testimony may qualify for admissibility. At the very least, Appellees have failed to establish that it would certainly not be admissible at a trial.
A couple observations. First, you might be wondering the interplay between this analysis and that of the Indiana Supreme Court in Reeder v. Harper. There, the court held that an affidavit of a witness that later deceased was a sufficient basis for denying summary judgment even though the affidavit would not be admissible at trial. But Reeder does not stand for the broad proposition that evidence at summary judgment does not need to be admissible. Instead, what the court held was that “an affidavit that would be inadmissible at trial may be considered at the summary judgment stage of the proceedings if the substance of the affidavit would be admissible in another form at trial.” The reason the affidavit was admissible there was because the determination of whether the affidavit met the “would be admissible in another form at trial” standard was at the time it was made. The rationale was that “[t]o hold otherwise and embrace the view that the death of an affiant renders an affidavit a nullity would result in summary judgment where the opposing party had the misfortune to select the one short-lived witness from among the many who may be able to testify to the same thing[,]” even though that did not appear to be the case in Reeder.
The second observation is the burden in resisting evidence at summary judgment on the basis that it is not evidence that “would be admissible in another form at trial.” The court acknowledges that it is not the burden of the non-movant to show that the evidence would be admissible at trial. Instead, the burden rested on the movant “to establish that it would certainly not be admissible at trial.”
One final note to put a bow on Gonzalez. We have spoken before about the major distinction between Indiana and federal summary-judgment practice. The burden in federal court to succeed on a motion for summary judgment is considerably lower than in Indiana, with, as the Indiana Supreme Court has said, “Indiana consciously err[ing] on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” But, even under the federal standard, summary judgment should have been denied. For an example, consider Northern District of Indiana Judge Robert L. Miller, Jr.’s decision in Smith v. Norfolk & W. R. Co.
Join us again next time for further discussion of developments in the law.
- Gonzalez v. Ritz, ---N.E.3d---, No. 64A04-1712-CT-2850, 2018 Ind. App. LEXIS 179 (Ind. Ct. App. May 21, 2018) (Bradford, J.).
- Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254, 261–62 (Ind. 2014) (Massa, J.).
- Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003) (Rucker, J.; Shepard, C.J., dissenting; Boehm, J., dissenting).
- Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014) (Rush, C.J.).
- Smith v. Norfolk & W. R. Co., 776 F. Supp. 1335 (N.D. Ind. 1991) (Miller, J.).
- Indiana Comparative Fault Act, codified at Ind. Code ch. 34–51–2.
- Indiana Tort Claims Act – codified at Ind. Code ch. 34–13–3.
- Colin E. Flora, Indiana Court Examines Whether Breach of Pedestrian Law is Contributory Negligence on Summary Judgment, Hoosier Litig. Blog(May 6, 2016).
- Colin E. Flora, Indiana: What to Do When Discovering After the Statute of Limitations Expires That the Wrong Party Was Named?, Hoosier Litig. Blog(May 4, 2018).
- Colin E. Flora, Indiana Court Explains Meaningful Difference Between State & Federal Summary Judgment Standard, Hoosier Litig. Blog(Dec. 13, 2013).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.