text:
    Amber COSGRAY, Appellant-Plaintiff, v. FRENCH LICK RESORT & CASINO d/b/a Blue Sky Casino, LLC, Appellee-Defendant.
    Court of Appeals Case No. 59A01-1710-CT-2512
    Court of Appeals of Indiana.
    Filed May 9, 2018
    Attorney for Appellant: Matthew D. Barrett, Logansport, Indiana
    Attorneys for Appellee: Jeffrey L. Hansford, Curtis P. Moutardier, Boehl Stopher & Graves, LLP, New Albany, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Amber Cosgray (Cosgray), appeals the trial court's grant of Appellee-Defendant's, French Lick Resort & Casino d/b/a Blue Sky Casino, LLC (French Lick Resort), motion for summary judgment, concluding that French Lick Resort did not owe a duty to Cosgray, an invitee, to protect her from a criminal attack by an unknown assailant.

[2] We affirm.

ISSUE

[3] Cosgray presents us with one issue on appeal, which we restate as: Whether the trial court properly concluded that French Lick Resort did not owe Cosgray a duty as a matter of law to protect her from a criminal attack by an unknown assailant while on French Lick Resort's premises.

FACTS AND PROCEDURAL HISTORY

[4] On December 7, 2013, Cosgray, along with her employer, Greg Pomasl (Pomasl), attended a work-related Christmas party at the hotel/casino owned and operated by French Lick Resort, at French Lick, Indiana. Cosgray and Pomasl arrived at the hotel around 2:00 p.m. and checked into their rooms. Cosgray was in Room 1504 and Pomasl's room was nearby. At the time of check-in at the hotel, all guests were given a key card, which is placed in a key card holder and which includes the following safety instructions:

1. Don't answer the door to your guest room without verifying who it is. If the person claims to be an employee, call the front desk and ask if someone from their staff is supposed to have access to your room and for what purpose.
2. Keep your room key with you at all times and don't needlessly display it in public. Should you misplace it, please notify the front desk immediately.
3. Close the door securely whenever you are in your room and use all of the locking devices provided.
4. Check to see that any sliding glass doors or windows and any connecting room doors are locked.
5. Don't invite strangers to your room.
6. Be aware of potential phone scams and prank calls to your guest room. Hotel employees will never request credit card or personal information over the phone, nor will they advise a guest to damage hotel property.
7. Place all valuables in the guest room safe.
8. When returning to your hotel late in the evening, be aware of your surroundings, stay in well-lighted areas and use the main entrance.
9. Take a few moments and locate the nearest exit that may be used in the event of an emergency.
10. If you see any suspicious activity, notify the hotel operator or a staff member.

(Appellant's Amended App. Vol. II, p. 96). All guest room doors at the French Lick Resort are equipped with three separate locking devices. The first security lock automatically locks the door upon closing. The second device is a deadbolt located near the doorknob which a guest has to manually turn to provide additional security. The third security device is a rasp safety lock which a guest simply flips over the closed door.

[5] After checking into her room, Cosgray joined her co-employees in the bar area of the casino for drinks and dinner. The dinner ended between 8:00 and 9:00 p.m., after which everyone went to their room to change before going to the casino. While at the casino, Cosgray played the slot machines for a while and then joined other colleagues in the bar area for dancing. After consuming two or three beers and two additional mixed drinks, Cosgray "felt the effects of the alcohol." (Appellant's Amended App. Vol. II, p. 74). At approximately 2:00 a.m., Cosgray walked back to her hotel room. Because Pomasl intended to join her in her room after he cashed-in his chips at the casino, Cosgray propped her room door open by flipping the rasp lock through the door jamb, preventing the door from completely closing. After changing into sweatpants, Cosgray fell asleep on the bed while waiting for Pomasl.

[6] About two hours later, Cosgray, laying on her stomach, awoke with her sweatpants and underwear pulled down and an unknown man on top of her, vaginally penetrating her. The unknown assailant never said anything and Cosgray did not make any noise. After approximately six minutes, the male left the room, and Cosgray locked the door. Law enforcement later identified Cosgray's assailant as Javier Urbano Uribe (Uribe).

[7] The criminal investigation later determined that French Lick Resort's employee, Summer Andrews (Andrews), had invited Uribe onto the hotel and casino's property. Andrews was employed in customer service, serving food and beverages to French Lick Resort's guests at the casino. Due to inclement weather conditions, French Lick Resort had provided Andrews with a hotel room. At the conclusion of her shift on December 8, 2013, Andrews clocked out at 1:13 a.m. and left the premises. She visited a local bar where she befriended Uribe and invited him back to her room at the French Lick Resort. After accompanying Uribe into the hotel, and prior to arriving at her room, Andrews rebuked Uribe's advances and left him alone near Cosgray's room.

[8] On December 4, 2015, Cosgray filed a Complaint for damages against French Lick Resort, claiming negligence, vicarious liability, and negligent infliction of emotional distress. On May 9, 2017, French Lick Resort filed a motion for summary judgment and designation of evidence, to which Cosgray responded on July 10, 2017. After conducting a hearing, the trial court granted summary judgment to French Lick Resort, concluding in pertinent part:

This [c]ourt does now find that, in general, resorts and hotels do not routinely contemplate that an invitee might rape another invitee, nor do they contemplate that an invitee will voluntarily leave their doors open and unlocked all night. In addition, it would be unreasonable to hold a hotel or resort responsible for a rape occurring on its premises, especially given the circumstances of the case before the [c]ourt. [French Lick Resort] does not have a blanket duty to [Cosgray] to protect her from any and all criminal attacks. Thus[,] the [c]ourt finds that in this case, as a matter of law, it is unforeseeable by [French Lick Resort], that [Cosgray] would be sexually assaulted in her room that she intentionally left unlocked and that it would be unreasonable to require that French Lick Resort should have taken any further precautions to avoid such an attack.

(Appellant's Amended App. Vol. II, p. 15).

[9] Cosgray now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

[10] In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley , 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied . Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id . at 608. A fact is 'material' for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff's cause of action; a factual issue is 'genuine' if the trier of fact is required to resolve an opposing party's different version of the underlying facts. Ind. Farmers Mut. Ins. Group v. Blaskie , 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. First Farmers Bank & Trust Co. , 891 N.E.2d at 607. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

[11] We observe that, in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc. , 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review. Id.

II. Analysis

[12] To recover in negligence, Cosgray must establish: (1) a duty on the part of French Lick Resort to conform its conduct to a standard of care arising from its relationship with Cosgray; (2) a failure on the part of French Lick Resort to conform its conduct to the requisite standard of care; and (3) an injury to Cosgray proximately caused by the breach. Jones v. Wilson , 81 N.E.3d 688, 692 (Ind. Ct. App. 2017).

[13] In this case, the threshold inquiry is whether French Lick Resort owed a duty to its invitee, Cosgray, to protect her from a criminal attack by an unknown assailant while she was in her room on French Lick Resort's premises with her room door intentionally left unlocked. Necessary to our analysis is consideration of two Indiana Supreme Court cases, which "redrew the premises liability landscape." Hoosier Mountain Bike Ass'n v. Kaler , 73 N.E.3d 712, 716 n.4 (Ind. Ct. App. 2017). The decisions in Rogers v. Martin , 63 N.E.3d 316 (Ind. 2016) and Goodwin v. Yeakle's Sports Bar & Grill, Inc. , 62 N.E.3d 384 (Ind. 2016), carefully synthesized years of "less than perfectly lucid" caselaw on premises liability law in Indiana. Goodwin , 62 N.E.3d at 387. Reviewing the applicable precedents, Goodwin and Rogers initially observed that a landowner has a general duty to exercise reasonable care for the invitee's protection while the invitee is on the premises. Rogers , 63 N.E.3d at 320. However, our supreme court continued that "although landlords owe invitees a well-established 'duty to protect,' courts must look at one critical element before extending that duty to cases where an invitee's injury occurs not due to a dangerous condition of the land but due to some harmful activity on the premises. That element is foreseeability." Id. at 324. That is, while landowners have a duty to take reasonable precaution to protect their invitees from criminal attacks by third parties, there is a foreseeability component in that analysis, requiring the trial court to decide, in the context of duty, whether the criminal act was foreseeable. See Jones , 81 N.E.3d at 693.

[14] In its decisions, our supreme court distinguished the foreseeability component in the context of duty from the foreseeability component in the context of proximate cause, stating: " '[T]he foreseeability component of proximate cause requires an evaluation of the facts of the actual occurrence, while foreseeability as a component of duty involves a lesser inquiry which requires a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.' " Goodwin , 62 N.E.3d at 391 (quoting Goldsberry v. Grubbs , 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied ); see also Rogers , 63 N.E.3d at 325 (foreseeability in duty context is a general threshold determination that "should focus on the general class of persons of which the plaintiff was a member and whether the harm suffered was of a kind normally to be expected-without addressing the specific facts of the occurrence"). The Goodwin court further clarified the trial court's task when determining whether a criminal act was foreseeable:

But because almost any outcome is possible and can be foreseen, the mere fact that a particular outcome is "sufficiently likely" is not enough to give rise to a duty. Instead, for purposes of determining whether an act is foreseeable in the context of duty we assess "whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.

Goodwin , 62 N.E.3d at 392.

[15] Distinguishing Goodwin , Cosgray claims that "[t]he broad type of patron at a small neighborhood bar typically stays for a short period of time to drink beverages and socialize. On the other hand, the broad type of patron at issue in the present case stays for an exceedingly longer period of time to play casino games, drink, socialize, and then sleep overnight in guest rooms." (Appellant's Br. p. 16). In Goodwin , the plaintiff was socializing at a bar when another patron became angry, produced a handgun, and shot the plaintiff. Goodwin , 62 N.E.3d at 392. In its analysis of the bar's duty, our supreme court noted:

The broad type of plaintiff here is a patron of a bar and the harm is the probability or likelihood of a criminal attack, namely: a shooting inside a bar. But even engaging in a 'lesser inquiry' we conclude that although bars can often set the stage for rowdy behavior, we do not believe that bar owners routinely contemplate that one bar patron might suddenly shoot another.

Id. at 393. See also Martin , 63 N.E.3d at 326 ("Although house parties can often set the stage for raucous behavior, we do not believe that hosts of parties routinely physically fight guests whom they have invited. Ultimately, it is not reasonably foreseeable for a homeowner to expect this general harm to befall a house-party guest."); Jones , 81 N.E.3d at 694-95 (The random criminal attack in the parking lot on a paying spectator at a wrestling match was not foreseeable and therefore no duty was owed); Powell v. Stuber , 89 N.E.3d 430, 434 (Ind. Ct. App. 2017) (No duty was owed to the patron of a bar who "pursued his assailants and grabbed onto the vehicle as it was being driven away."), reh'g denied.

[16] Here, Cosgray's injuries resulted from the conduct of a third person. Under the foreseeability test outlined in Goodwin and Roger s -examining the broad type of plaintiff and the broad type of harm, without consideration of the actual facts-we find that the sexual criminal attack on Cosgray by another invitee in a room left intentionally unlocked was not normally to be expected, and thus not foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray.

[17] Cosgray encourages this court to take into consideration the "ongoing history of assaults and batteries involving injury and a prior reported rape" and the specific security measures to impose a duty on French Lick Resort. (Appellant's Br. p. 16). However, Cosgray's inclination to incorporate the totality of the circumstances into our consideration of the duty element is no longer applicable since our supreme court decision in Goodwin and Martin . See Goodwin , 62 N.E.3d at 392 (The totality of the circumstances test "is ill-suited to determine foreseeability in the context of duty."). Accordingly, we affirm the trial court's summary judgment for French Lick Resort.

CONCLUSION

[18] Based on the foregoing, we conclude that French Lick Resort did not owe Cosgray a duty as a matter of law to protect her from a criminal attack by an assailant while on French Lick Resort's premises.

[19] Affirmed.

[20] May, J. and Mathias, J. concur

      On December 10, 2013, the State filed an Information, charging Uribe with rape and burglary. Uribe pled guilty to the charge of rape on April 3, 2017.

      In reaching this decision, the Goodwin court specifically rejected the totality of the circumstances test when analyzing the foreseeability analysis in the context of duty. See Goodwin , 62 N.E.3d at 389 ("[W]e now recognize that although the 'totality of the circumstances' test is useful in determining foreseeability in the context of proximate causation, it is inappropriate when analyzing foreseeability in the context of duty.")


source: Caselaw Access Project

author: Bailey, Judge.

license: Public Domain

text:
    Calvin B. YATES, Appellant-Plaintiff, v. Rebecca HITES, Appellee-Defendant.
    Court of Appeals Case No. 44A03-1710-CT-2459
    Court of Appeals of Indiana.
    FILED May 18, 2018
    Attorneys for Appellant: Robert D. Brown, Sarah M. Cafiero, Kenneth J. Allen Law Group, LLC, Valparaiso, Indiana
    Attorney for Appellee: J. Patrick Schomaker, Smith, Rolfes & Skavdahl Company, LPA, Cincinnati, Ohio
   Bailey, Judge.

Case Summary

[1] Calvin B. Yates ("Yates") filed a civil lawsuit against Rebecca Hites ("Hites") for personal injuries arising out of a motor vehicle accident. Yates appeals the judgment, following a jury trial, in favor of Hites. Yates raises only the following issue on appeal: whether the trial court abused its discretion when it gave the jury an instruction on sudden emergency.

[2] We reverse and remand for a new trial.

Facts and Procedural History

[3] In the early morning of January 31, 2014, Hites, who lives in Shipshewana, received a phone call from her friend, Dave Smith ("Smith"). Smith asked Hites if she would pick him up because his car had broken down on County Road 43. While traveling westbound on U.S. 20 on her way to assist Smith, Hites suddenly lost control of her vehicle, causing her vehicle to swerve across the centerline of U.S. 20 and strike Yates' eastbound vehicle. Yates sustained injuries as a result of the crash.

[4] On August 10, 2015, Yates filed a complaint against Hites, alleging that she negligently and recklessly drove her vehicle so as to cross the centerline, crash into his vehicle, and cause him personal injuries. Prior to the jury trial, Hites requested a special jury instruction regarding "sudden emergency." Appellant's App. Vol. II at 136-139. However, Yates moved in limine to exclude testimony, evidence, or argument that Hites was confronted with a sudden emergency. Id. at 94. Yates also moved in limine to exclude any testimony or argument that Hites "drove over 'black ice' or that 'black ice' somehow caused the motor vehicle crash," since Hites had stated in her deposition that she had not seen any black ice on the roadway and that her "contention that there was black ice on the road [was] just an assumption on [her] part." Id. at 93, 117-18. On September 12, 2017, the trial court granted Yates's motions in limine regarding black ice and sudden emergency. And, on September 20, the trial court rejected Hites's proposed instruction regarding sudden emergency.

[5] The case proceeded to jury trial on September 26-28. At trial, Hites testified that, at the time of year when she was driving (i.e., January), "there's a potential for snow and ice to be on the roadway," Tr. Vol. III at 57, and a "possibility that the roads could be slippery," id. at 55. She also testified that the day prior to the accident, i.e., January 30, the "weather had been particularly bad and hard for cars." Id. at 55. However, she testified that, while she was driving on January 31, 2014, it was not snowing, raining, or sleeting, and the roads "for the most part were clear." Id. at 54-55. She testified that visibility was "fine," id. at 54, and she had not seen any ice on the roads that morning, Tr. Vol. IV at 48. Hites testified she was traveling at 30 miles per hour on U.S. 20, although the speed limit was 50 miles per hour. Id. at 45; Tr. Vol. III at 56. She also testified that, while she was driving that day, she had both hands on the steering wheel and her eyes on the road, and that she was not "doing anything at all that might have distracted [her] from driving." Tr. Vol. IV at 48. She testified that the vehicle she was driving was equipped with "hands free or Bluetooth capabilities" for using a cellular phone. Id. at 45.

[6] Yates introduced into evidence the AT & T records of Hites's cellular telephone calls on January 31, 2014. Plaintiff's Ex. 26, Ex. Vol. VI. Those records demonstrated that Hites placed a five-minute telephone call to Smith at 8:53 a.m.; a two-minute call to her husband, William Hites Jr. ("William"), at 9:08 a.m.; a one-minute phone call to Suzanne Frazier ("Suzanne"), the owner of the car Hites was driving, at 9:10 a.m.; and a two-minute phone call to Suzanne's husband, James Frazier ("James"), at 9:11 a.m. At trial, Hites testified that she did not remember making any telephone calls in the moments before the crash, Tr. Vol. III at 65, at the time of the crash, id. at 69-70, or after the crash, id. at 70. In fact, Hites testified she did not remember any of the events immediately following the crash. However, she testified that she did not dispute the accuracy of the AT & T records in Exhibit 26.

[7] When Yates asked Hites at trial whether she had called her husband at 9:08 a.m. "to let him know that [she] had stopped at the gas station and used the bank card to gas up," Hites testified that, although she did not remember calling anyone before the crash, Tr. Vol. III at 65, it was "probably" true that she had called her husband for that reason, id. at 50. However, William testified that Hites had called him a "little after nine o'clock in the morning" on that day to tell him that she had been "in an auto accident." Tr. Vol. IV at 35. And Suzanne also testified that the phone call she received from Hites that morning was after the crash; she stated that Hites called her to tell her about the crash, and that she had not talked to Hites on that day before that call. Id. at 105-06.

[8] Hites testified she suddenly lost control of the vehicle on January 31. She stated that, as the rear end of the vehicle slid left, she "tried to counter-steer." Id. at 44. Yates also testified that, when he saw Hites's vehicle coming toward him in his lane, "the driver attempted to correct by making a rapid sharp turn to the right," before her vehicle "fishtailed" and struck his vehicle. Tr. Vol. III at 206.

[9] Master Trooper Marc Leatherman of the Indiana State Police ("Trooper Leatherman") did not witness the crash, but he arrived at the scene of the crash at 9:13 a.m. He testified that he was told by Doug VanVooren ("VanVooren"), an eye-witness to the crash, that it appeared to VanVooren that Hites "was going too fast for the existing road conditions that morning." Id. at 81-82. Trooper Leatherman testified that "there were quite long stretches of U.S. 20 that were covered in ice that morning," and the ice was "black" so that "you wouldn't know it until ... your vehicle came upon it." Id. at 89. Trooper Leatherman believed the accident happened at 9:13 a.m., but testified that "[i]t may very well have" happened before 9:08 a.m. Id. at 87. He testified that, after completing his investigation of the crash, he concluded that Hites had been "driving at a speed too fast for the existing weather conditions that day." Id. at 83-84.

[10] At the close of evidence, but before closing arguments, Hites renewed her request that the trial court give her previously-tendered jury instruction regarding sudden emergency. Hites noted that Yates's own witness, Trooper Leatherman, had testified that there was black ice on the roadway at the time of the crash, thereby providing evidence supporting a sudden emergency instruction. The trial court agreed. Over Yates's objection, the trial court granted Hites's request and instructed the jury as follows:

FINAL INSTRUCTION # 2
Defendant claims she was not at fault because she acted with reasonable care in an emergency situation. Defendant was not at fault if she proves the following by the greater weight of the evidence:
(1) she was faced with a sudden emergency;
(2) she did not cause the emergency;
(3)she did not have enough time to consider her options; and
(4) she acted as a reasonably careful person would act when facing a similar emergency, even if a different course of action might later seem to have been a better choice.

Appellant's App. at 40. The court also gave the following relevant portions of an instruction regarding negligence:

FINAL INSTRUCTION # 1
* * *
Plaintiff, CALVIN B. YATES, claims Defendant, REBECCA HITES, was negligent. Negligence is the failure to use reasonable care. A person may be negligent by acting or failing to act. A person is negligent if he does something a reasonably careful person would not do in the same situation or fails to do something a reasonably careful person would do in the same situation.
To recover on this claim, the Plaintiff must prove by a preponderance of the evidence that:
1. Defendant acted or failed to act in any one or more of the following ways:
a. Moved at an unreasonable speed;
b. Did not keep a proper lookout;
c. Failed to maintain control of her vehicle; and or
d. Drove while distracted by the use of a cell phone;
2. Defendant's act or failure to act was negligent; and
3. Defendant's act or failure to act was a proximate cause of Plaintiff's claimed injuries; and
4. Plaintiff suffered damages as a result of the injuries.
* * *

Id. at 39.

[11] The jury returned a verdict in favor of Hites. This appeal ensued.

Discussion and Decision

Standard of Review

[12] Yates contends that the trial court erred when it gave the jury a final instruction regarding sudden emergency.

The manner of instructing a jury is left to the sound discretion of the trial court. Callaway v. Callaway , 932 N.E.2d 215, 222 (Ind. Ct. App. 2010). Its ruling will not be reversed unless the instructional error is such that the [instruction] misstates the law or otherwise misleads the jury. Id. Jury instructions must be considered as a whole and in reference to each other. Id. at 222-23. In reviewing a trial court's decision to give or refuse a tendered instruction, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the tendered instruction is covered by the other instructions that are given. Id. at 223. To determine whether sufficient evidence exists to support an instruction, we will only look to that evidence most favorable to the appellee and any reasonable inferences to be drawn therefrom. Foddrill v. Crane , 894 N.E.2d 1070, 1078 (Ind. Ct. App. 2008), trans. denied . Finally, "when a jury is given an incorrect instruction on the law, we will not reverse the judgment unless the party seeking a new trial shows 'a reasonable probability that substantial rights of the complaining party have been adversely affected.' " Id. (citations omitted).

Kimbrough v. Anderson , 55 N.E.3d 325, 339 (Ind. Ct. App. 2016), trans. denied . If there is any evidence to support the instruction, it was properly given. E.g. , Faulk v. Northwest Radiologists, P.C. , 751 N.E.2d 233, 241 (Ind. Ct. App. 2001), trans. denied .

Sudden Emergency Doctrine

[13] Our Supreme Court has summarized the law regarding the "sudden emergency" doctrine:

In a negligence cause of action, the sudden emergency doctrine is an application of the general requirement that one's conduct conform to the standard of a reasonable person. The emergency is simply one of the circumstances to be considered in forming a judgment about an actor's fault. The doctrine was developed by the courts to recognize that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal circumstances. The basis of the doctrine is that the actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation. In Indiana, a defendant seeking a sudden emergency instruction must show that three factual prerequisites have been satisfied: 1) the defendant must not have created or brought about the emergency through his own negligence; 2) the danger or peril confronting the defendant must appear to be so imminent as to leave no time for deliberation; and 3) the defendant's apprehension of the peril must itself be reasonable.

Willis v. Westerfield , 839 N.E.2d 1179, 1184 (Ind. 2006) (quotations and citations omitted). A trial court "has a duty to instruct the jury concerning [the sudden emergency] defense if there is any evidence to support its application." Compton v. Pletch , 561 N.E.2d 803, 807 (Ind. Ct. App. 1990), adopted on transfer , 580 N.E.2d 664 (Ind. 1991).

[14] Yates maintains that the evidence did not support giving the sudden emergency instruction, and we agree. Moreover, we find that the erroneous giving of the instruction was prejudicial to Yates.

No Sudden Emergency

[15] In determining whether an instruction on sudden emergency is appropriate, the court must first determine exactly what the sudden emergency was. Collins v. Rambo , 831 N.E.2d 241, 246 (Ind. Ct. App. 2005). Hites's sudden emergency defense is based entirely upon her theory that she suddenly came upon black ice that was not visible, and that driving on the black ice caused her to lose control of her vehicle. However, the record is completely devoid of evidence that Hites's vehicle drove over black ice. Hites herself never testified that she drove over black ice. Rather, she testified that the roads were not icy that day and that she never saw any ice. And when she was asked by her lawyer whether she even experienced the sensation of hitting a patch of ice, she replied only: "I remember down-all the way up and to that point from my home until the point of the accident. And not having an issue. And then all of sudden my rear-end goes left, so." Tr. Vol. IV at 48.

[16] The only evidence regarding the existence of black ice is Trooper Leatherman's testimony that "there were quite long stretches of U.S. 20 that were covered in ice that morning," and the ice was "black" so that "you wouldn't know it until ... your vehicle came upon it." Tr. Vol. III at 89. However, Trooper Leatherman testified that he did not witness the accident. Moreover, he never testified that Hites did, in fact, drive over black ice, nor did he express a belief that black ice is what caused the accident. Rather, he testified that, following his investigation, he concluded that Hites had been driving at a speed too fast for the existing weather conditions that day.

[17] While the trial court was required to interpret the evidence in the light most favorable to Hites when deciding whether to give her requested instruction on sudden emergency, Frito-Lay, Inc. v. Cloud , 569 N.E.2d 983, 987 (Ind. Ct. App. 1991), there simply was no evidence supporting the existence of a sudden emergency in this case. Rather, Hites's contention that black ice created a sudden emergency is pure speculation. Cf. Compton , 561 N.E.2d 803, 807-08 (discussing cases where evidence of a sudden emergency existed). Therefore, the trial court abused its discretion when it gave the sudden emergency jury instruction.

Prejudicial Error

[18] The giving of an erroneous instruction on sudden emergency does not necessarily constitute reversible error. Baker v. Mason , 253 Ind. 348, 242 N.E.2d 513, 516 (1968). Rather, as our Supreme Court has most recently stated, such an error is reversible only where the party seeking a new trial shows a reasonable probability that his or her substantial rights have been adversely affected. Penn Harris Madison School Corp. v. Howard , 861 N.E.2d 1190, 1195 (Ind. 2007) ; see also Kimbrough , 55 N.E.3d at 339. And "where an instruction presents a correct statement of law, but no evidence supports it, the objecting party is generally unharmed by the instruction." Id. at 1197 (citing Baker , 242 N.E.2d at 515 ). However, as we noted in Simmons v. Erie Ins. Exchange , 891 N.E.2d 1059, 1070-73 (Ind. Ct. App. 2008), the Supreme Court has also held that "[a]n erroneous instruction merits reversal if it could have formed the basis for the jury's verdict." Id. at 1071 (quoting Fleetwood Enters., Inc. v. Progressive N. Ins. Co. , 749 N.E.2d 492, 495 (Ind. 2001) ). As in Simmons , "we need not resolve the conflict as to the proper standard under which we analyze whether an improper instruction necessitates reversal, as we conclude that the giving of the instruction in this case is prejudicial and requires reversal under any of the standards identified above." 891 N.E.2d at 1072.

[19] This court has found prejudice from the erroneous giving of sudden emergency instructions in several cases. See, e.g. , Collins , 831 N.E.2d at 244-45 ; Lovings v. Cleary , 799 N.E.2d 76, 78-79 (Ind. Ct. App. 2004), trans. denied . However, in those cases, the sudden emergency instruction read, in relevant part, as follows:

In this case, if you find from the evidence that the defendant was confronted with a sudden emergency in the sliding of the vehicle and that the defendant then pursued a course of action that an ordinarily prudent person would have pursued when confronted with the same or similar emergency, then you may not assess negligence to the defendant.

Lovings , 799 N.E.2d at 78. In both cases, we held that instruction to be prejudicial to the substantial rights of the plaintiff because it precluded the jury from assessing fault to the defendant regardless of his/her possible negligence leading up to the alleged emergency, and it did not inform the jury that the defendant had the burden of proving a sudden emergency. Collins , 831 N.E.2d at 250 ; Lovings , 799 N.E.2d at 79.

[20] Unlike the instructions in Collins and Lovings , the instruction in the instant case, which was the pattern jury instruction on sudden emergency, did require that the jury make a determination as to whether or not Hites's negligent action caused the alleged emergency. Indiana courts have found that similarly-worded sudden emergency instructions that were erroneously given did not affect the plaintiff's substantial rights. E.g. , Baker , 242 N.E.2d at 515-16 (holding that a similarly-worded, erroneously-given instruction was not prejudicial because it required the jury to either find the instruction inapplicable if it was not supported by any evidence, or, if applicable, simply apply the normal negligence standard to an emergency situation); Taylor v. Todd , 439 N.E.2d 190, 193 (Ind. Ct. App. 1982) (reaching the same conclusion regarding a similarly-worded sudden emergency instruction). Thus, an erroneously given but properly worded sudden emergency instruction "has rarely been considered reversible error" in the absence of other, additional errors. Taylor , 439 N.E.2d at 194 ; see also Penn Harris , 861 N.E.2d at 1197 (citing Baker , 242 N.E.2d at 515 ) (emphasis added) ("[W]here an instruction presents a correct statement of law, but no evidence supports it, the objecting party is generally unharmed by the instruction.").

[21] Here, as in Baker and Taylor , the erroneously-given sudden emergency instruction, together with the instruction on negligence, would not have precluded the jury from considering whether Hites's actions leading up to the alleged emergency were negligent and caused the alleged emergency; therefore, the giving of the instruction, alone, would not have been prejudicial to Yates. However, unlike in Baker and Taylor , the record here discloses that, in closing arguments, Hites's lawyer extensively argued the application of the sudden emergency doctrine to justify Hites's presence in Yates's traffic lane and thereby avoid liability. Tr. Vol. IV at 148-166. Therefore, even though the jury should have found the sudden emergency instruction inapplicable due to a lack of evidence to support it and therefore disregarded that instruction, Baker , 242 N.E.2d at 515, it is much more likely that the jury did improperly consider and rely upon the sudden emergency instruction in reaching its verdict, thereby causing prejudice to Yates. See Buhring v. Tavoletti , 905 N.E.2d 1059, 1068 (Ind. Ct. App. 2009) (holding that an erroneously-given instruction was prejudicial error under either the Penn Harris or Fleetwood Enters. standards because "the matters discussed in the instructions at issue were emphasized to the jury, and the likelihood that the matters were discussed and impacted the jury's verdict is significant.").

Conclusion

[22] Because there was no evidence of the existence of a sudden emergency, the trial court erred in giving the sudden emergency instruction. Moreover, because Hites's closing argument put so much emphasis on the sudden emergency doctrine, it is likely that the jury improperly considered and relied upon the sudden emergency instruction in reaching its verdict for Hites. Therefore, we reverse and remand for a new trial. See, e.g. , Collins , 831 N.E.2d at 250.

[23] Reversed and remanded for a new trial.

Crone, J., and Brown, J., concur.

      Although the Exhibit Index prepared by the trial court reporter indicates that Hites's deposition was admitted into evidence as Exhibit 19 at page 51 of transcript volume III, we find no such admission; rather, the transcript shows only that Yates "tendered" Exhibit 19. Tr. Vol. III at 51. And, while relevant portions of Hites's deposition transcript are contained in the record as exhibit attachments to Yates' Motion In Limine , App. Vol. II at 93, 117-18, that document also was never entered into evidence. Therefore, we cannot consider Hites's deposition on appeal. See, e.g. , Cochran v. Rodenbarger , 736 N.E.2d 1279, 1283 (Ind. Ct. App. 2000).

      Yates does not dispute that the sudden emergency instruction correctly stated the law, nor does he contend the instruction was covered by other instructions. Kimbrough , 55 N.E.3d at 339.

      Moreover, as we noted in Collins , a sudden emergency cannot exist for a defendant motorist who did not perceive the emergency until after the collision. 831 N.E.2d at 246 ; see also Taylor v. Todd , 439 N.E.2d 190, 193 (Ind. Ct. App. 1982) (citing Baker v. Mason , 253 Ind. 348, 242 N.E.2d 513, 515 (1968) ) ("Without the perception of sudden danger, there is no impairment of judgment and no need for the sudden emergency instruction."). The evidence established that Hites was not aware of the existence of black ice prior to the collision.

      Ind. Model Civ. Jury Inst. 931 states:
      [Plaintiff][Defendant] claims [he][she] was not at fault because [he][she] acted with reasonable care in an emergency situation. [Plaintiff][Defendant] was not at fault if [he][she] proves the following by the greater weight of the evidence:
      (1) [he][she] was faced with a sudden emergency;
      (2) [he][she] did not cause the emergency;
      (3) [he][she] did not have enough time to consider [his][her] options; and
      (4) [he][she] acted as a reasonably careful person would act when facing a similar emergency, even if a different course of action might later seem to have been a better choice.

      Given the overlap between a sudden emergency instruction and standard negligence instructions, it is difficult to ascertain the usefulness and necessity of the sudden emergency instruction. We note that, although our Supreme Court has so far declined to express an opinion regarding the desirability of the instruction, Willis , 839 N.E.2d at 1186 n.4, other states have abolished the instruction on grounds that may be applicable here. See, e.g. , Bedor v. Johnson , 292 P.3d 924, 928-30 (Colo. 2013) (abolishing the instruction due to its minimal utility and potential to mislead the jury). We believe that Indiana's pattern sudden emergency instruction, while an accurate statement of the law that requires the jury to consider the defendant's actions leading up to the alleged emergency, nevertheless suffers from the potential to mislead the jury into applying a reduced standard of care and/or unduly focusing its attention on the defendant's actions during and after the emergency rather than on the totality of the circumstances. Id. And we believe that the sudden emergency instruction is unnecessary as the "rule requiring reasonable care is sufficient to take into consideration the excitement and confusion which normally accompany the emergency situation." Knapp v. Stanford , 392 So.2d 196, 199 (Miss. 1980) (citation and quotation omitted). However, pursuant to the doctrine of stare decisis, the sudden emergency doctrine is still applicable in Indiana. See Willis , 839 N.E.2d at 1186 ; Compton , 561 N.E.2d at 807.

      See, e.g. , Estate of Dyer v. Doyle , 870 N.E.2d 573, 584 (Ind. Ct. App. 2007) (holding giving of sudden emergency instruction reversible error where trial court also erroneously allowed evidence of "faked left syndrome" upon which alleged emergency was based), trans. denied .


author: Bradford, Judge.

text:
    Sheila GONZALEZ and Rod Gonzalez, Appellants-Plaintiffs, v. Sara RITZ, Northern Indiana Public Service Company, Porter County Drug Task Force, and Town of Chesterton, Appellees-Defendants.
    Court of Appeals Case No. 64A04-1712-CT-2850
    Court of Appeals of Indiana.
    Filed May 21, 2018 Rehearing denied July 25, 2018
    Attorney for Appellants: Adam J. Sedia, Hoeppner, Wagner & Evans, LLP, Merrillville, Indiana
    Attorneys for Appellees Sara L. Ritz and Porter County Drug Task Force: Crystal G. Rowe, Alyssa C.B. Cochran, Kightlinger & Gray, LLP, New Albany, Indiana, Galen A. Bradley, Kightlinger & Gray, LLP, Merrillville, Indiana
    Attorney for Appellee Town of Chesterton: Thomas Waggoner, Straub, Seaman & Allen, PC, St. Joseph, Michigan
   Bradford, Judge.

Case Summary

[1] In July of 2014, Sheila Gonzalez was riding her bicycle on a trail with her two children when the trio came to an intersection with a road. When Sheila attempted to cross the road, she was struck by a vehicle driven by Sara Ritz, a member of the Chesterton Police Department ("the Department") and Porter County Drug Task Force ("the Task Force"). Gonzalez and her husband Rod sued Ritz, the Task Force, and the Town of Chesterton ("the Town") for negligence. The Task Force moved for summary judgment on the basis that there was no genuine issue of material fact that Sheila had been contributorily negligent as a matter of law. The Town joined the Task Force's motion, and the trial court entered summary judgment in favor of the Task Force and the Town (collectively, "Appellees"). The Gonzalezes appeal, contending that the designated evidence does not inevitably lead to the inference that Sheila was contributorily negligent. Because we agree, we reverse the trial court's grant of summary judgment in favor of Appellees and remand for trial.

Facts and Procedural History

[2] In July of 2014, Ritz was employed as a detective for the Department and served as a member of the Task Force. On July 9, 2014, Ritz was in Portage, Indiana, conducting an investigation within the course and scope of her employment. Ritz was stopped at the four-way intersection of Swanson Road and Aspen Road before she proceeded east down Lute Road.

[3] Meanwhile, Sheila and her children Vanessa and Carter had been riding their bicycles on the Prairie Duneland Trail ("the Trail") nearby. The trio approached the Trail's intersection with Lute Road, which had a stop sign directing bicyclists to stop and yield to traffic on Lute Road. No trees, shrubbery, tall grass, weather, or other obstructions prevented bicyclists from seeing traffic on Lute Road that day. When the three Gonzalezes reached the stop sign at the Lute Road intersection, they came to a complete stop. Vanessa crossed Lute Road without incident and waited on the other side.

[4] Carter and Sheila remained stopped on the Trail while approximately nine to ten vehicles passed on Lute Road. Sheila looked right then left, told Carter that "it was clear, we can go[,]" and started to pedal across Lute Road. Appellant's App. Vol. II p. 48. Carter agreed with Sheila's assessment that "the traffic became clear on Lute Road[,]" and, after looking both ways himself, started to follow Sheila, trailing a few feet behind. Appellant's App. Vol. II p. 43. As Carter started to follow Sheila across the street, he looked to his right and noticed Ritz's vehicle approaching. Carter stopped his bicycle and yelled at Sheila to stop. Carter first saw Ritz's vehicle approximately one second before it struck Sheila.

[5] According to Carter, the vehicle appeared to be going faster than all of the other vehicles that had passed. Vanessa told police at the scene that Ritz's vehicle was going "f****** fast[,]" Appellant's App. Vol. II p. 63, and later opined that Ritz was driving too fast. Although Sheila could not recall anything about the accident, she testified that it was her practice while riding a bicycle to stop at all intersections and look both ways before crossing.

[6] On February 4, 2016, the Gonzalezes filed their first amended complaint. The Gonzalezes alleged, inter alia , that the Appellees were vicariously liable for the alleged negligence of their employee, Ritz. On April 12, 2016, the Town filed its answer to the Gonzalezes' amended complaint, and on April 18, 2016, the Task Force filed its answer. On May 17, 2017 the Task Force moved for summary judgment. The Town joined the Task Force's summary-judgment motion and filed its own on July 10, 2017.

[7] On September 25, 2017, the trial court denied the Gonzalezes' motion to file a belated response to the Appellees' summary-judgment motion, held a hearing (at which the Gonzalezes were permitted to present argument), and granted summary judgment in favor of the Appellees. The Gonzalezes filed a motion to correct error, which motion the trial court denied.

Discussion and Decision

[8] Although review of a trial court's ruling on a motion to correct error is generally for an abuse of discretion, where the issue raised is purely a question of law, the standard of review is de novo . City of Indpls. v. Hicks , 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied . On review of a trial court's decision to grant or deny summary judgment, we must determine whether there is a genuine issue of material fact that precludes summary judgment and whether the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C) ; Carie v. PSI Energy, Inc. , 715 N.E.2d 853, 855 (Ind. 1999). Once the moving party has sustained its initial burden of proving the absence of a genuine issue of material fact and the appropriateness of judgment as a matter of law, the party opposing summary judgment must respond by designating specific facts establishing a genuine issue for trial. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] A fact is "material" if its resolution would affect the outcome of the case and "genuine" if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. T.R. 56(C) ). The non-movant may not rest upon the bare allegations made in the pleadings, but must respond with affidavits or other evidence setting forth specific facts showing that genuine issues are in dispute. Willsey v. Peoples Fed. Sav. & Loan Ass'n. of E. Chicago, Ind. , 529 N.E.2d 1199, 1205 (Ind. Ct. App. 1988).

In reviewing the propriety of a ruling on a motion for summary judgment, we apply the same standards as the trial court and review all the pleadings, depositions, admissions, answers to interrogatories, and any affidavits designated to the trial court in the light most favorable to the nonmovant. The movant bears the burden of proving the propriety of summary judgment, and all rational assertions of fact and reasonable inferences to be resolved therefrom are deemed to be true and are viewed in the nonmovant's favor.

Lindsey v. DeGroot , 898 N.E.2d 1251, 1256 (Ind. Ct. App. 2009) (citation omitted). In ruling on a motion for summary judgment, the Court may consider only designated evidence that would be admissible at trial. See Ind. T.R. 56(C), (E); see also Kronmiller v. Wangberg , 665 N.E.2d 624, 627 (Ind. Ct. App. 1996), trans. denied .

[10] In their appeal from the grant of summary judgment, the Gonzalezes argue that the Task Force and the Town failed to establish that Sheila was contributorily negligent as a matter of law. Generally, in Indiana actions for negligence, a plaintiff's contributory fault does not bar recovery unless it exceeds fifty percent of the total fault. See Ind. Code §§ 34-51-2-5, -6. Because the Indiana Comparative Fault Act expressly excludes application to governmental entities, however, the common-law defense of contributory negligence remains available as a bar for liability for defendants such as the Appellants. See Ind. Code § 34-51-2-2 ("This chapter does not apply in any manner to tort claims against governmental entities or public employees[.]"). 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 Gonzalezes' action for damages against the Appellees.

[11] A plaintiff is contributorily negligent when the plaintiff's conduct "falls below the standard to which he should conform for his own protection and safety. Lack of reasonable care that an ordinary person would exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends." Jones v. Gleim , 468 N.E.2d 205, 207 (Ind. 1984) ; see also Hundt v. La Crosse Grain Co. , 446 N.E.2d 327, 329 (Ind. 1983). Put another way, "[c]ontributory 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." Brown v. N. Ind. Publ. Serv. Co. , 496 N.E.2d 794, 798 (Ind. Ct. App. 1986). Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment "if there are conflicting factual inferences." Butler v. City of Peru , 733 N.E.2d 912, 917 (Ind. 2000). "However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law." Jones , 468 N.E.2d at 207.

[12] 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. See, e.g. , Davison v. Williams , 251 Ind. 448, 242 N.E.2d 101, 105 (1968) ("We believe that the wisest course for the courts of Indiana to take in the adjudication of a suit involving negligence by violation of a safety regulation is to treat plaintiff's proof of defendant's violation of the safety regulation as creating a rebuttable presumption of negligence."). 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.

[13] That said, this court has noted that " '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.' " Smith v. Indpls. , 136 Ind. App. 616, 621, 199 N.E.2d 722, 725 (1964) (quoting Luther v. State , 177 Ind. 619, 623, 98 N.E. 640, 641 (1912) ). That duty of care should not be understood, however, to impose unreasonable demands on motorists or bicyclists:

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. Opple v. Ray (1935), 208 Ind. 450, 459, 195 N.E. 81, 84. 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. Id. 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. Thornton v. Pender (1978), 268 Ind. 540, 544, 377 N.E.2d 613, 617. 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. See id. ; Cushman Motor Delivery Co. v. McCabe (1941), 219 Ind. 156, 170, 36 N.E.2d 769, 774 ; Bd. of Comm'rs v. Briggs (1975), 167 Ind. App. 96, 134, 337 N.E.2d 852, 875.

Smith v. Beaty , 639 N.E.2d 1029, 1033 (Ind. Ct. App. 1994).

[14] While the Gonzalezes implicitly concede that there is designated evidence from which a jury could find that Sheila was contributorily negligent, they argue that the designated evidence would also permit a finding that she was not. Viewing the designated evidence in a light most favorable to the Gonzalezes, we conclude that they are correct.

[15] Although Sheila testified that she could not remember the accident, she also testified that it was her practice while riding a bicycle to always stop at all intersections and look both ways before crossing. (Appellant's App. Vol. II 95). The Gonzalez children's testimony is consistent with Sheila's on this point. Carter testified that Lute Road was clear and that Sheila came to a complete stop, looked right then left, and told him that "it was clear, we can go" before starting across. Appellant's App. Vol. II p. 48. As for why Sheila might not have seen Ritz's vehicle or, perhaps, saw it but underestimated the threat it posed, Carter testified that Ritz's vehicle was traveling faster than the other traffic on the road and Vanessa testified that Ritz was driving too fast. A factfinder could possibly conclude from the above that Sheila complied with the standard of ordinary care but nevertheless failed to see the approaching Ritz, and/or incorrectly concluded that her fast-moving vehicle was too far away to pose a threat.

[16] Appellees rely on Funston v. School Town of Munster , 849 N.E.2d 595 (Ind. 2006), to support their position that Sheila was contributorily negligent as a matter of law. In that case, Funston was attending his son's basketball game when he sat on the top row of some bleachers. Id. at 599. Despite the fact that "[i]t was clearly visible that there was no back railing for spectators sitting on the top row, ... Mr. Funston leaned back anyway[,]" fell, and was injured. Id. The Court concluded "from the undisputed facts that only a single inference can reasonably be drawn: Mr. Funston was negligent to some degree, and this is enough to establish the common law defense of contributory negligence as a matter of law." Id. at 600.

[17] Funston is readily distinguished. In that case, Funston leaned back despite the undisputed fact that the hazard, i.e. , the lack of railing, was clearly visible. Here, contrary to Appellees' argument, the designated evidence does not inescapably lead to the inference that Sheila acted unreasonably in the face of a clearly-visible threat: We have already concluded that the evidence could possibly support an inference that Sheila acted reasonably but still did not see Ritz's vehicle coming, and/or realize how fast it was traveling, until it was too late. Appellees' reliance on Funston is unavailing.

[18] 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.

[19] Appellees also contend that Carter's and Vanessa's testimony that Sheila did nothing wrong is inadmissible as opinion testimony on the ultimate legal issue of Sheila's negligence. See Ind. Evidence Rule 704(b) ("Witnesses may not testify to opinions concerning ... legal conclusions."). Even if we assume that this is the case, we have already concluded that Sheila's testimony and Carter's and Vanessa's testimony regarding their observations could be sufficient to establish a lack of contributory negligence on Sheila's part.

[20] Appellees also contend that it is undisputed that Lute Road was not "clear" when Sheila entered it, Sheila's act of stopping before crossing Lute Road is not evidence that she kept a proper lookout for hazards, and the undisputed fact that Sheila's view was unobstructed allows only the inference that she saw Ritz's vehicle approaching. Whatever value these arguments might have if made to a jury, our job is only to evaluate the designated evidence to the extent necessary for deciding whether it generates a genuine issue of material fact, precluding summary judgment. We have concluded that it does. We reverse the trial court's entry of summary judgment in favor of the Town and the Task Force and remand for trial.

[21] We reverse the judgment of the trial court and remand with instructions.

Baker, J., and Kirsch, J., concur.

      Sheila was knocked from her bicycle and into a utility pole allegedly owned and maintained by Appellee-Defendant Northern Indiana Public Service Company ("NIPSCO"). The Gonzalezes alleged that NIPSCO, who does not participate in this appeal, had negligently maintained the pole. The Gonzalezes also acknowledge that Ritz, who also does not participate in this appeal, cannot be held personally liable for the consequences of any negligent acts she may have committed in this case.

      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. Appellee's Br. p. 21. 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." (Emphasis added). 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.


author: Pyle, Judge.

text:
    Gerald G. GRAY, Appellant-Petitioner, v. MEDICAL LICENSING BOARD OF INDIANA, Appellee-Respondent.
    Court of Appeals Case No. 26A01-1707-PL-1595
    Court of Appeals of Indiana.
    FILED May 24, 2018
    Attorney for Appellant: Terry A. White, Olsen & White, LLP, Evansville, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, Indiana
   Pyle, Judge.

Statement of the Case

[1] Dr. Gerald Gray ("Dr. Gray") appeals the denial of his petition for judicial review of an order issued by the Medical Licensing Board of Indiana ("the Board") indefinitely suspending his medical license. Dr. Gray specifically contends that the trial court should have granted his petition for judicial review because there is not substantial evidence to support the suspension. Concluding that substantial evidence supports the suspension, we affirm the trial court's denial of Dr. Gray's petition.

[2] We affirm.

Issue

Whether the trial court erred in denying Dr. Gray's petition for judicial review.

Facts

[3] Seventy-nine-year-old Dr. Gray is an osteopathic physician who practices in southern Indiana. He was issued an Indiana medical license in June 1963. In 2004, Dr. Gray hired an unlicensed physician to treat his patients. Dr. Gray paid this unlicensed physician $20.00 per hour but submitted claims to Medicaid and insurance companies at his standard rates and under his name. Dr. Gray also allowed the unlicensed physician to prescribe controlled substances under Dr. Gray's Drug Enforcement Agency ("DEA") registration number. In 2005, Dr., Gray voluntarily surrendered his DEA registration number. In 2006, Dr. Gray pled guilty to one count of Medicaid fraud, and the Board placed him on indefinite probation with a list of terms and conditions, including continuing training, community service, and a fine.

[4] Later in 2006, Dr. Gray filed an application for a new DEA registration. The DEA approved Dr. Gray's application pursuant to the terms of a 2007 Memorandum of Understanding ("MOU") that was scheduled to expire in early 2010. In the MOU, Dr. Gray agreed to abide by all state and federal laws relating to controlled substances. He also agreed not to prescribe, dispense, or administer any controlled substance to himself or any person with whom he did not have a legitimate doctor-patient relationship. He further agreed to prescribe controlled substances in a reasonable quantity for a legitimate medical purpose and to maintain a complete and accurate record of all controlled substances that he prescribed or maintained.

[5] In May 2009, Dr. Gray filed an application to renew his Indiana Controlled Substance Registration ("CSR"). Question number two on the application asked if he had ever had any action, discipline, or revocation on his DEA registration or if he had ever entered into an MOU on the registration. Dr. Gray responded that he had not.

[6] Also in 2009, C.P. began working as a housekeeper for Dr. Gray, and they soon began dating. From June 2009 through October 2009, Dr. Gray wrote C.P. eighteen controlled substance prescriptions. In October 2009, C.P. admitted to Dr. Gray that she had a "drug problem." (Tr. 102). C.P. moved into Dr. Gray's house in November 2009. In early 2010, Dr. Gray learned that C.P. was addicted to prescription narcotics.

[7] In February 2010, Dr. Gray received authorization to prescribe Schedule III-V FDA approved narcotics for addiction treatment and began treating C.P. From February through October 2010, Dr. Gray wrote fourteen controlled substance prescriptions for C.P. In late 2010, C.P. sought treatment for her addiction at a local behavioral healthcare system. She subsequently stopped attending the treatment program, and Dr. Gray prescribed her Xanax. From January through March 2011, Dr. Gray gave C.P. intra-muscular shots, including Morphine, Demerol, Nubian, Morphine Sulfate, and Dilaudid.

[8] In the spring of 2011, Board of Pharmacy Investigator Eric Pearcy ("Investigator Pearcy") and Indiana State Police Detective Vinnie Geiselman ("Detective Geiselman") contacted Madeline Kuzma ("Investigator Kuzma"), an investigator with the DEA. Investigator Kuzma is responsible for enforcement of the Controlled Substance Act as it applies to pharmaceutical controlled substances. Investigator Pearcy and Detective Geiselman expressed concerns about the combinations of controlled substances that Dr. Gray was prescribing to his patients, the fact that many patients were coming from as far away as Illinois to see Dr. Gray, and the fact that Dr. Gray was prescribing numerous controlled substances to C.P., who was known to be Dr. Gray's girlfriend and who was currently working in Dr. Gray's office.

[9] Investigator Kuzma visited Dr. Gray's office in May 2011 and noted that Dr. Gray did not keep accurate records of the controlled substances in his office. In addition, Dr. Gray kept the Xanax that he dispensed to C.P. in a safe in his private residence. He also dispensed the Xanax to other patients. When Investigator Kuzma told Dr. Gray that his home was not a registered location for dispensing drugs and that dispensing drugs from an unregistered location was prohibited by federal regulations, Dr. Gray responded that he did not know that. Dr. Gray told Investigator Kuzma that he also did not know that he had violated federal regulations when he had prescribed hydrocodone, a Schedule II controlled substance, to C.P. for her opioid withdrawal while knowing that C.P. was an addict. Investigator Kuzma further told Dr. Gray that he had also violated DEA regulations when he failed to report that he had suspected that an employee had stolen a controlled substance. In addition, Investigator Kuzma learned that in April 2011, Dr. Gray had prescribed Suboxone for C.P. She only took one dose of the drug, which she claimed made her nauseous. Dr. Gray kept the Suboxone pills in his office and dispensed it to other patients.

[10] In October 2014, Dr. Gray filed a petition to remove the probation that had been imposed in 2006. In early 2015, the State received a notification from a local pharmacist that she was refusing to fill controlled substance prescriptions for Dr. Gray's patients. In May 2015, the State filed a five-count administrative complaint against Dr. Gray's medical license. The Board held a hearing in September 2015 on both the complaint and Dr. Gray's motion to withdraw his probation.

[11] In October 2015, the Board issued a detailed order that found five violations of INDIANA CODE § 25-1-9-4. Specifically, the Board concluded that Dr. Gray had violated: (1) INDIANA CODE § 25-1-9-4(a)(4)(A) when he administered narcotic controlled substances to C.P. to treat her opioid addiction; (2) INDIANA CODE § 25-1-9-4(a)(4)(B) when he failed to keep abreast of current practices when he prescribed and/or administered controlled substances to C.P., a known drug addict, and other patients without objective evidence of medical necessity; (3) INDIANA CODE § 25-1-9-4(a)(9) when he knowingly prescribed or administered a narcotic, addicting, or dangerous drug to C.P., an addict; (4) INDIANA CODE § 25-1-9-4(a)(1)(A) when he engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice as evidenced by his failure to disclose the MOU containing limitations on his DEA registration when he renewed his application for CSR in 2009; and (5) INDIANA CODE § 25-1-9-4(a)(1)(A) in that he engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice as evidenced by his failure to disclose the MOU containing limitations on his DES registration when he renewed his application for a CSR in 2011. As a result of these violations, the Board indefinitely suspended Dr. Gray's medical license.

[12] Shortly thereafter, Dr. Gray filed a petition for judicial review wherein he asked the trial court to review the Board's actions in suspending his license and to approve his petition requesting the withdrawal of his probationary status. The gravamen of his argument was that there was not substantial evidence to support the five statutory violations that resulted in the suspension of his medical license. The trial court denied Dr. Gray's petition, and Dr. Gray now appeals that denial.

Decision

[13] Dr. Gray argues that the trial court erred in denying his petition for judicial review of an order wherein the Board indefinitely suspending his medical license. The Administrative Orders and Procedures Act ("AOPA") governs the judicial review of decisions made by the Board. IND. CODE § 4-21.5-2-0.1. Agency action subject to AOPA will be reversed only if the court determines that a person seeking judicial relief has been prejudiced by an agency action that is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Terkosky v. Indiana Dept. of Educ. , 996 N.E.2d 832, 841-42 (Ind. Ct. App. 2013).

[14] A trial court and an appellate court both review the decision of an administrative agency with the same standard of review. Id. at 842. We defer to the agency's expertise and will not reverse simply because we might have reached a different result. Id. The burden of demonstrating the invalidity of the agency action is on the party to the judicial review proceeding that is asserting the invalidity of the action. Id. (citing IND. CODE § 4-21.5-5-14(a) ). Review of an agency's decision is largely confined to the agency record, and the court may not substitute its judgment for that of the agency. Id. We give deference to the administrative agency's findings of fact, if supported by substantial evidence, but review questions of law de novo . Id. On review, we do not reweigh the evidence. Id.

[15] The Board regulates the practice of medicine within Indiana and is charged with establishing standards for the competent practice of medicine in the state. IND. CODE § 25-22.5-2 et seq . The Board's general authority to suspend medical licenses derives from INDIANA CODE § 25-1-9-9, which provides that the Board may suspend a practitioner's license if it finds that the practitioner is subject to disciplinary sanctions under INDIANA CODE § 25-1-9-4. At the time the State filed its administrative complaint seeking disciplinary sanctions against Dr. Gray, INDIANA CODE § 25-1-9-4 provided as follows:

(a) A practitioner shall conduct the practitioner's practice in accordance with the standards established by the board regulating the profession in question and is subject to the exercise of the disciplinary sanctions under section 9 of this chapter if, after a hearing, the board finds:
(1) a practitioner has:
(A) engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice, including cheating on a licensing examination;
(B) engaged in fraud or material deception in the course of professional services or activities;
(C) advertised services in a false or misleading manner; or
(D) been convicted of a crime or assessed a civil penalty involving fraudulent billing practices, including fraud under:
(i) Medicaid ( 42 U.S.C. 1396 et seq. );
(ii) Medicare ( 42 U.S.C. 1395 et seq. );
(iii) the children's health insurance program under IC 12-17.6; or
(iv) insurance claims;
(2) a practitioner has been convicted of a crime that:
(A) has a direct bearing on the practitioner's ability to continue to practice competently; or
(B) is harmful to the public;
(3) a practitioner has knowingly violated any state statute or rule, or federal statute or regulation, regulating the profession in question;
(4) a practitioner has continued to practice although the practitioner has become unfit to practice due to:
(A) professional incompetence that:
(i) may include the undertaking of professional activities that the practitioner is not qualified by training or experience to undertake; and
(ii) does not include activities performed under IC 16-21-2-9 ;
(B) failure to keep abreast of current professional theory or practice;
(C) physical or mental disability ; or
(D) addiction to, abuse of, or severe dependency upon alcohol or other drugs that endanger the public by impairing a practitioner's ability to practice safely;
(5) a practitioner has engaged in a course of lewd or immoral conduct in connection with the delivery of services to the public;
(6) a practitioner has allowed the practitioner's name or a license issued under this chapter to be used in connection with an individual who renders services beyond the scope of that individual's training, experience, or competence;
(7) a practitioner has had disciplinary action taken against the practitioner or the practitioner's license to practice in any state or jurisdiction on grounds similar to those under this chapter;
(8) a practitioner has diverted:
(A) a legend drug (as defined in IC 16-18-2-199 ); or
(B) any other drug or device issued under a drug order (as defined in IC 16-42-19-3 ) for another person;
(9) a practitioner, except as otherwise provided by law, has knowingly prescribed, sold, or administered any drug classified as a narcotic, addicting, or dangerous drug to a habitue or addict;
(10) a practitioner has failed to comply with an order imposing a sanction under section 9 of this chapter;
(11) a practitioner has engaged in sexual contact with a patient under the practitioner's care or has used the practitioner-patient relationship to solicit sexual contact with a patient under the practitioner's care;
(12) a practitioner who is a participating provider of a health maintenance organization has knowingly collected or attempted to collect from a subscriber or enrollee of the health maintenance organization any sums that are owed by the health maintenance organization; or
(13) a practitioner has assisted another person in committing an act that would be grounds for disciplinary sanctions under this chapter.
(b) A practitioner who provides health care services to the practitioner's spouse is not subject to disciplinary action under subsection (a)(11).
(c) A certified copy of the record of disciplinary action is conclusive evidence of the other jurisdiction's disciplinary action under subsection (a)(7).

(Emphasis added).

[16] Here, Dr. Gray argues that the trial court erred in denying his petition for judicial review because there is not substantial evidence to support the Board's findings that he violated five of the statutes' subsections. However, we note that this statute includes the word "or" after subsection twelve and is therefore written in the disjunctive. See Bourbon Mini-Mart, Inc. v. Comm'r Ind. Dep't of Env't Mgmt. , 806 N.E.2d 14, 20 (Ind. Ct. App. 2004). Accordingly, practitioners are subject to the exercise of disciplinary sanctions if the Board finds after a hearing that the practitioner has violated any one of the thirteen subsections, and we can affirm a suspension where there is substantial evidence of just one violation. See U.S. Steel Corp. v. N. Ind. Pub. Serv. Co. , 951 N.E.2d 542, 559 (Ind. Ct. App. 2011), trans. denied .

[17] We now turn to the merits of the case and review one of the Board's Ultimate Findings of Fact. The Board's order provides, in relevant part, as follows:

2. By a vote of 4-0-0, [Dr. Gray's] conduct as described above constitutes a violation of IND. CODE § 25-1-9-4(a)(1)(4)(B) in that [Dr. Gray] failed to keep abreast of current theory and practice when he prescribed and/or administered narcotic controlled substances to CP, a known drug addict[,] and other patients without objective evidence of medical necessity for the prescribed narcotic medication.

(App. 44). Dr. Gray claims that this finding "is unsupported by substantial evidence, not reasonably inferred from the [f]acts, and is defective as a basis for disciplining Dr. Gray's medical license." (Dr. Gray's Br. 20). Specifically, he first contends that Board's "[i]nclusion of 'and other patients' ... is unsupported by any evidence and should be stricken prior to further assessment ...." (Dr. Gray's Br. 20). However, our review of the evidence reveals that a pharmacist refused to fill controlled substance prescriptions for Dr. Gray's patients. In addition, Dr. Gray kept C.P.'s prescription for Suboxone in his office and admitted that he had dispensed the remaining pills to other patients. He also kept Xanax locked in a safe at his private residence, which was an unregistered location with the DEA, and dispensed it to both C.P. and other patients. This evidence clearly supports the Board's inclusion of "and other patients" in the Board's order. We find no error.

[18] Dr. Gray further contends that there is not substantial evidence that he "treated C.P., or any other patient, with narcotics without objective evidence of medical necessity for the prescribed medication." (Dr. Gray's Br. 21). In other words, Dr. Gray claims that there is objective evidence of medical necessity for prescribing narcotics to C.P. However, our review of the evidence reveals that Dr. Gray prescribed hydrocodone to C.P. for withdrawal even though he knew that she was addicted to narcotics. There is clearly no evidence of medical necessity in the record for prescribing hydrocodone to a narcotics addict for withdrawal. Rather, prescribing hydrocodone to someone who is addicted to narcotics for detoxification treatment is a violation of federal regulations. See C.F.R. 21 C.F.R. §§ 1306.07(d) and 1308.12. As a result, we find that there is substantial evidence to support the Board's finding that Dr. Gray treated C.P. with narcotics without objective evidence of medical necessity.

[19] Lastly, Dr. Gray complains that the "State did not produce one doctor or other qualified healthcare professional to testify as to the validity of ... Dr. Gray's medical decisions versus the documented patient assessments." (Dr. Gray's Br. 23). However, the State was not required to do so. The legislature has recognized that the Board, which is composed of six physicians, is able to establish standards and determine whether a practitioner has violated one or more of them. See IND. CODE § 25-22.5-2-1 ; IND. CODE § 25-1-9-4(a). There is no need for another physician to testify as to the validity of a practitioner's medical decisions. We find no error.

[20] The evidence in this case provides substantial support for the Board's decision, and Dr. Gray's license suspension was supported by substantial evidence. We therefore affirm the trial court's denial of Dr. Gray's petition for judicial review. See Regester v. Ind. State Bd. of Nursing , 703 N.E.2d 147, 151 (Ind. 1998) (finding substantial evidence to support the Nursing Board's suspension of a nurse's license and affirming the trial court's denial of the nurse's petition for judicial review of the suspension).

Affirmed.

Kirsch, J., and Bailey, J., concur.

      Pursuant to 21 C.F.R. § 1306.07(d), a practitioner is not authorized to dispense a schedule II controlled substance for maintenance or detoxification treatment. Pursuant to 21 C.F.R. § 1308.12, Hydrocodone is a Schedule II controlled substance.

      Dr. Gray also argues that "I.C. § 25-1-9-4 et seq. , as applied by the Board to Dr. Gray's conduct, are unconstitutionally vague, thus denying due process, due to lack of a stated standard of care to which Dr. Gray's actions can be judged." (Dr. Gray's Br. 30). However, we agree with the State, that this argument "continues to center around what [Dr. Gray] sees as a lack of an established standard of care." (State's Br. 35). We have already explained that the Board has statutory authority to establish standards and determine whether a practitioner has violated one or more of them. See I.C. § 25-1-9-4(a). No standard of care testimony was necessary.