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Lee v. Bartholomew Consolidated School Corp.

Court of Appeals of Indiana

April 11, 2017

Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually, Appellants-Plaintiffs,
Bartholomew Consolidated School Corporation, City of Columbus, Columbus City Planning Commission and Columbus Police Department, Appellees-Defendants.

         Appeal from the Bartholomew Circuit Court The Honorable Stephen R. Heimann, Judge Trial Court Cause No. 03C01-1501-CT-177

          ATTORNEYS FOR APPELLANTS David W. Stone IV Anderson, Indiana John H. Shean Brandon E. Hall Bloomington, Indiana

          ATTORNEYS FOR APPELLEES James S. Stephenson Ian L. Stewart Stephenson Morow & Semler Indianapolis, Indiana

          Riley, Judge.


         [¶1] Appellants-Plaintiffs, Jalen Lee (Lee)-by his next friend, Crystal Estes-and Crystal Estes individually, appeal the trial court's summary judgment in favor of Appellee-Defendant, City of Columbus (City).[1]

         [¶2] We reverse and remand.


         [¶3] Lee raises four issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in granting the City's motion for summary judgment.


         [¶4] On March 11, 2013, thirteen-year-old Lee, an eighth-grade student at Central Middle School in the Bartholomew Consolidated School Corporation, left his house at approximately 7:00 a.m. to walk the short distance to Columbus East High School, where he would get on a school bus to be taken to Central Middle School. That particular morning, it was raining and still dark outside, but Lee had walked the same route to the high school every day throughout his seventh and eighth grade years, regardless of the weather or season. Lee was wearing a black hooded sweatshirt and blue jeans. As always, Lee was joined on his walk to school by his friend, Jacob Rhodes (Rhodes), who lived on the same street as Lee. As Lee and Rhodes neared the high school, Rhodes observed a coin on the ground and stopped to pick it up. Lee kept walking.

         [¶5] The last leg of Lee's trip to school required him to cross Marr Road. A mid-block crosswalk on Marr Road provided a direct path from the school's athletic fields on the east side of Marr Road to the high school on the west side of Marr Road. The crosswalk consisted of high visibility markings on the pavement, and there were two reflective signs on each side of the crosswalk to alert approaching drivers to the possibility of pedestrians (i.e., a "Crosswalk Ahead" sign 209 feet away from the crosswalk, and a "Crosswalk" sign thirteen feet away from the crosswalk). (Appellants' App. Vol. III, p. 141). Also, drivers approaching the crosswalk from either direction observed two speed limit signs. In the northbound lane, the first sign drivers passed was 1, 264 feet from the crosswalk and indicated a school zone speed limit of twenty miles per hour; the second sign was 427 feet away from the crosswalk and established a regular speed limit of thirty miles per hour. In the southbound lane, the school zone and regular speed limit signs were placed directly next to each other, approximately one-half mile away from the crosswalk.[2]

         [¶6] Lee used the Marr Road crosswalk to walk to Columbus East High School every day. He knew to look both ways before crossing, and it was his habit to wait for a vehicle to come to a full stop before crossing instead of assuming that a slowing vehicle would fully stop. On this day, when Lee reached the Marr Road crosswalk, he looked both ways and saw a vehicle approaching in the northbound lane. That vehicle, a red 2006 Dodge Ram 3500 diesel pickup truck, was driven by Kyle McLeod (McLeod), who was on his way to work. McLeod had driven the same route along Marr Road at least 100 times, and he was familiar with the crosswalk and had previously stopped to allow children to cross. At the time, McLeod stated that he was traveling between twenty-five and thirty miles per hour and had his headlights on. McLeod did not see anyone near the crosswalk as he approached, and although Lee had observed McLeod's truck, Lee believed that he had sufficient time to cross Marr Road without causing the oncoming vehicle to have to adjust its speed or stop. Accordingly, Lee proceeded to cross, and McLeod never noticed him in the crosswalk until he heard an impact and saw Lee "flying down the road." (Appellants' App. Vol. II, p. 193). McLeod immediately slammed on his brakes and exited his vehicle as he called 911; meanwhile, Rhodes ran to check on Lee, who was lying on the ground approximately seventy-five feet away from the crosswalk. Lee survived the accident, although he does not have any memory of what occurred between the time he stepped into the crosswalk and when he woke up at Riley Hospital for Children in Indianapolis. Lee sustained a broken femur, multiple fractured ribs, a collapsed lung, a lacerated spleen, and other abrasions.

         [¶7] On January 9, 2015, Lee filed a Complaint, alleging that the City was negligent in the performance of its duties to those students who utilize the school buses for transport to Central Middle School and that this negligence proximately caused the accident and resulting injuries to Lee. The Complaint also alleged that the City "negligently failed to take reasonable measures to warn pedestrians utilizing the Crosswalk and drivers on Marr Road of the particular dangers of the Crosswalk so as to reasonably mitigate the known dangers of the Crosswalk." (Appellants' App. Vol. II, p. 26). Per Lee, this failure to warn proximately caused his injuries.[3]

         [¶8] On March 22, 2016, the City filed a motion for summary judgment, claiming that it was entitled to judgment as a matter of law on several grounds. First, the City argued that it did not breach its duty of reasonable care because Marr Road and the crosswalk were reasonably safe and there were adequate warnings to alert drivers to the crosswalk. Second, the City contended that, as a matter of law, it did not proximately cause the accident or Lee's injuries because McLeod was driving the vehicle and was aware of the crosswalk's existence. Third, the City claimed that it was entitled to statutory immunity as a governmental entity pursuant to the Indiana Tort Claims Act. In particular, the City asserted that it was not liable for any loss attributable to the roadway's design because Marr Road and the crosswalk had not been altered for over twenty years prior to the accident per Indiana Code section 34-13-3-3(18); it was not liable per Indiana Code section 34-13-3-3(7) (discretionary function immunity) because it was in the planning stages of making improvements to the crosswalk-specifically, the installation of flashing lights; and it was not liable for failing to impose a lower speed limit on Marr Road, install a stop sign at the crosswalk, or station crossing guards at the crosswalk per Indiana Code section 34-13-3-3(8) (immunity for failure to adopt or enforce laws). Fourth, the City also posited that it should be afforded common law immunity based on any alleged failure to take additional police action to enhance safety on Marr Road and at the crosswalk. Finally, the City argued that Lee's claim was barred based on his own contributory negligence and Lee's violation of Indiana Code section 9-21-17-5.

         [¶9] On May 3, 2016, Lee designated evidence to support his opposition to the City's summary judgment motion. The trial court subsequently conducted a hearing on the City's summary judgment motion. On July 15, 2016, the trial court granted summary judgment to the City. The trial court found that Lee's claim was barred because Lee, in light of his "age, his knowledge, his judgment, and his experience, " was contributorily negligent as a matter of law. (Appellants' App. Vol. II, p. 21). On August 3, 2016, the trial court entered final judgment in favor of the City.

         [¶10] Lee now appeals. Additional facts will be provided as necessary.


         I. Standard of Review

         [¶11] Lee appeals from the trial court's entry of summary judgment in favor of the City. We adhere to a well-settled standard of review in summary judgment cases:

Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Our review of a summary judgment motion is limited to those materials designated to the trial court. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. . . .
In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact.

Wabash Cnty. Young Men's Christian Ass'n v. Thompson, 975 N.E.2d 362, 364-65 (Ind.Ct.App. 2012) (internal citations omitted), trans. denied. "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue." Hamilton v. Ashton, 846 N.E.2d 309, 314, clarified on reh'g, 850 N.E.2d 466 (Ind.Ct.App. 2006), trans. denied. The trial court's grant of summary judgment "is clothed with a presumption of validity, " and Lee bears the burden of establishing that the trial court erred. Id. "If the trial court's ruling can be sustained on any theory or basis supported by the record, we must affirm." Id.

         [¶12] For negligence cases, "[s]ummary judgment is rarely appropriate" because these cases "are particularly fact-sensitive and are governed by a standard of the objective reasonable person." Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19 (Ind.Ct.App. 2015). Thus, negligence cases are generally better suited for a jury determination after hearing all the evidence. Id. Nevertheless, in order for the City to prevail on its summary judgment motion, it "must show that the undisputed material facts negate at least one of the elements essential to the negligence claim, or that the claim is barred by an affirmative defense." Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind.Ct.App. 2004), trans. denied.

         II. Contributory Negligence

         [¶13] In this case, the trial court found that the City's affirmative defense of contributory negligence was dispositive. When a tort claim is filed against a governmental entity, such as the City, the Comparative Fault Act-which provides that "any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery"- does not apply. Ind. Code §§§ 34-51-2-2; -5; -6; see Hill v. Gephart, 54 N.E.3d 402, 406 (Ind.Ct.App. 2016), clarified on reh'g, trans. denied. Rather, the common-law doctrine of contributory negligence applies. Hill, 54 N.E.3d at 406. Therefore, "if a plaintiff is negligent to even a small degree and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to his action." Id. Here, the trial court found that Lee's claim against the City was barred based on his own contributory negligence. Specifically, the trial court found that Lee "knew what he was supposed to do for his own safety: wait for a vehicle to stop before you cross a road. Instead of waiting, he chose to cross." (Appellants' App. Vol. II, p. 20).

         [¶14] It is well established that a plaintiff "is contributorily negligent when his conduct falls below the standard to which he should conform for his own protection and safety." Hill, 54 N.E.3d at 406. Because "[n]egligence depends upon the lack of reasonable care that an ordinary person would exercise in like or similar circumstances, " "contributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise." Id. Generally, contributory negligence is a question of fact for a jury. Id. However, it may be a ...

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