Kimberly Flueckiger and Mark Flueckiger v. Maurice Englehardt, The City of Bluffton, and Indiana Department of Transportation d/b/a INDOT (mem. dec.) , 89 N.E.3d 1119 ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 22 2017, 5:30 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Christopher R. Blackburn J. Blake Hike
David A. Singleton Michael C. Ross
Blackburn & Green Carson Boxberger LLP
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kimberly Flueckiger and December 22, 2017
Mark Flueckiger, Court of Appeals Case No.
Appellants-Petitioners, 90A02-1707-CT-1520
Appeal from the Wells Circuit
v. Court
The Honorable Kenton W.
Maurice Englehardt, Kiracofe, Judge
The City of Bluffton, and Trial Court Cause No.
Indiana Department of 90C01-1507-CT-10
Transportation d/b/a INDOT,
Appellees-Respondents.
Robb, Judge.
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Case Summary and Issue
[1] Kimberly and Mark Flueckiger (the “Flueckigers”) appeal the trial court’s entry
of summary judgment in favor of the City of Bluffton. The Flueckigers raise
one issue for our review: whether the trial court erred in entering summary
judgment in favor of the City of Bluffton. Concluding the trial court did not err,
we affirm.
Facts and Procedural History
[2] Indiana State Road 1 is a thoroughfare that passes through Bluffton, Indiana.
In Bluffton, State Road 1 has three lanes, a northbound lane, a southbound
lane, and a center lane. The northbound and southbound lanes are eleven feet
wide and the center lane is thirteen feet wide. As the road progresses through
Bluffton, it intersects with Townley Street, which travels east and west. Near
this intersection, the City of Bluffton placed a two and one-half foot wide
triangular “A-Frame” sign (“Sign”) to warn drivers of a sinkhole that developed
near a street drain. The City of Bluffton placed the Sign in the northbound lane
and against the curb to alert drivers to navigate around the sinkhole.
[3] On June 17, 2014, a warm and sunny day, Maurice Englehardt traveled north
on State Road 1 into Bluffton. Englehardt had driven on State Road 1 on prior
occasions, and, on this occasion observed the Sign as he approached from two
blocks away. Englehardt testified the Sign was located in the middle of the
northbound lane on this occasion. There was no traffic in front of Englehardt
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and he was traveling approximately 25 miles per hour as he approached the
Sign. Despite his prior knowledge of the Sign, Englehardt diverted his eyes
from the road when he was about fifty feet away from the Sign in order to
reposition a towel he was sitting on. As he looked back up at the road, he
simultaneously began to merge into the center lane of State Road 1 to bypass
the Sign and reached down with his right hand to reposition the towel. Then,
for reasons he cannot recall, Englehardt’s vehicle entered into the southbound
lane and struck Kimberly Flueckiger’s vehicle.
[4] On July 17, 2015, the Flueckigers filed a complaint against Englehardt and the
City of Bluffton alleging their negligence caused the accident and the
Flueckigers’ subsequent injuries. On February 3, 2017, the City of Bluffton
filed its motion for summary judgment; the Flueckigers’ responded with their
motion in opposition on May 1, 2017. On June 13, 2017, the trial court entered
summary judgment in favor of the City of Bluffton determining the City of
Bluffton’s placement of the Sign did not proximately cause the accident. The
Flueckigers’ now appeal. Additional facts will be added as necessary.
Discussion and Decision
[5] Our standard of review for an appeal from a motion for summary judgment is
well-settled:
When reviewing a grant or denial of a motion for summary
judgment our well-settled standard of review is the same as it is
for the trial court: whether there is a genuine issue of material
fact, and whether the moving party is entitled to judgment as a
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matter of law. The party moving for summary judgment has the
burden of making a prima facie showing that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law. Once these two requirements are
met by the moving party, the burden then shifts to the non-
moving party to show the existence of a genuine issue by setting
forth specifically designated facts. Any doubt as to any facts or
inferences to be drawn therefrom must be resolved in favor of the
non-moving party. Summary judgment should be granted only if
the evidence sanctioned by Indiana Trial Rule 56(C) shows there
is no genuine issue of material fact and that the moving party
deserves judgment as a matter of law.
Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)
(internal quotations omitted).
[6] In order to recover under a theory of negligence, a party is required to establish
the following: 1) the defendant owed the plaintiffs a duty of care; 2) the
defendant breached that duty by failing to conform his conduct to the requisite
standard of care; and 3) the breach was the proximate cause of the plaintiffs’
injuries. Id. The Flueckigers’ theory is the City of Bluffton was negligent in its
placement of the Sign, and that negligence proximately caused their injuries.
[7] An act is the proximate cause of another’s injury when the injury is a natural
and probable consequence of a negligent act which, in the totality of the
circumstances, could have been reasonably foreseen or anticipated. Straley v.
Kimberly, 687 N.E.2d 360, 364 (Ind. Ct. App. 1997), trans. denied. To be
considered the proximate cause of another’s injury, “the negligent act must
have set in motion a chain of circumstances which in natural and continuous
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sequence lead to the resulting injury.” Id. But, the intervention of an
independent, superseding negligent act will relieve the original negligent actor
of legal liability if that act could not have been reasonably foreseen. Id.Although the issue of proximate cause is often determined by the trier of fact,
where it is clear the injury was not foreseeable under the circumstances and that
imposing liability upon the original negligent actor would not be justified, the
determination of proximate cause may be made as a matter of law. Carter v.
Indianapolis Power & Light Co., 837 N.E.2d 509, 521 (Ind. Ct. App. 2005), trans.
denied.
[8] In support of their argument that the placement of the Sign was the proximate
cause of their injuries, the Flueckigers contend it was foreseeable Englehardt
would swerve to avoid an object placed in the roadway by the City of Bluffton,
lose control of his car, and crash into another motorist. However, the
Flueckigers’ analysis ignores the pertinent facts of this specific case. See
Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. App. 1996) (noting the analysis
of the foreseeability element of proximate cause focuses on the facts of the
actual occurrence), trans. denied. The facts most favorable to the Flueckigers
reveal that June 17, 2014, was a sunny and warm day with no hostile driving
conditions to confront. State Road 1 is a three-lane road consisting of a
northbound lane, a southbound lane, and a center lane. As Englehardt
approached the intersection of State Road 1 and Townley Street, he observed
the Sign from about two blocks away. Englehardt was also familiar with the
Sign, having passed it before. However, he testified it was in the middle of the
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lane that day, rather than adjacent to the curb as it had been before. Englehardt
had no traffic in front of him and was traveling about 25 miles per hour. As he
approached the Sign, he diverted his eyes from the road to reposition a towel he
was sitting on. At the same time, he began to merge to the center lane to bypass
the Sign. He was about fifty feet away from the Sign when he began to merge.
Englehardt cannot recall what happened next, but his car collided with
Flueckiger’s car which was traveling in the southbound lane of State Road 1.
[9] No matter which set of facts regarding the placement of the Sign is accurate, the
Flueckigers’ injuries are not a foreseeable consequence of the City of Bluffton’s
actions. Englehardt could have safety maneuvered around the Sign by using
the center lane and avoided the collision by exercising reasonable care. Thus,
bypassing the Sign did not require entry into the southbound lane. The City of
Bluffton was not bound to anticipate a motorist, with prior knowledge of the
Sign, would observe the Sign from two blocks away and disregard the danger it
posed by attempting to reposition a towel while simultaneously merging into
the center lane, lose control of his vehicle, and crash into a motorist in the
southbound lane. The City of Bluffton’s placement of the Sign did not
proximately cause the Flueckigers’ injuries.
[10] Because the undisputed facts fail to demonstrate the City of Bluffton
proximately cause the Flueckigers’ injuries, we affirm the trial court’s entry of
summary judgment in favor of the City of Bluffton.
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Conclusion
[11] We conclude the trial court did not err in granting the City of Bluffton’s motion
for summary judgment. Accordingly, we affirm.
[12] Affirmed.
Riley, J., and Pyle, J., concur.
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