Frederick Bazeley, Jr., As Personal Representative of the Estate of Frederick T. Bazeley, III v. Robert Price and Sampson Fiberglass, Inc. , 2014 Ind. App. LEXIS 376 ( 2014 )

FOR PUBLICATION
Jul 30 2014, 9:57 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DOUGLAS E. SAKAGUCHI ERIC W. VON DECK
JEROME W. MCKEEVER MARK D. KUNDMUELLER
Pfeifer Morgan & Stesiak Tuesley Hall Konopa, LLP
South Bend, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FREDERICK BAZELEY, JR., )
As Personal Representative of the )
ESTATE OF FREDERICK T. BAZELEY, III, )
)
Appellant/Plaintiff, )
)
vs. ) No. 20A03-1401-CT-36
)
ROBERT PRICE and )
SAMPSON FIBERGLASS, INC., )
)
)
Appellees/Defendant. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Evan S. Roberts, Judge
Cause No. 20D01-1205-CT-86
July 30, 2014
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
In fall 2011 a deadly accident occurred when Frederick T. Bazeley III’s motorcycle
collided with a thirty-seven-foot trailer being hauled by Robert Price’s flatbed truck.
Frederick Bazeley Jr., as Personal Representative of the Estate of Frederick T. Bazeley III
(“Bazeley’s Estate”), now appeals the trial court’s grant of summary judgment in favor of
Price and Sampson Fiberglass, Inc. in Bazeley Estate’s action for wrongful death as a result
of the collision. Bazeley’s Estate contends that the trial court erred in granting summary
judgment in favor of Price and Sampson Fiberglass because there is a genuine issue of
material fact concerning the cause of the collision. Finding a genuine issue of material fact
regarding causation, we reverse and remand.
Facts and Procedural History
Around 1:45 p.m. on September 20, 2011, Price, who was employed as a driver by
Sampson Fiberglass, was returning to the Sampson Fiberglass plant at 2424 North Home
Street in Mishawaka, Indiana. Appellant’s App. p. 35. Price was driving a Ford F-350
flatbed truck, hauling a thirty-seven-foot trailer. Id. Price was traveling eastbound on
McKinley Avenue and was waiting to make a left turn at the intersection of McKinley
Avenue and Home Street. Id. At the same time, Bazeley was driving his Harley Davidson
motorcycle westbound on McKinley toward the same intersection. The speed limit was
forty-five miles per hour. Id. at 86.
Robert Davis was also driving westbound on McKinley toward its intersection with
Home. Id. at 88. Bazeley pulled his motorcycle next to Davis’s passenger-side door at a
red light at the intersection of McKinley and Capital, which is a few blocks east of the
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McKinley and Home intersection. Id. McKinley has two westbound lanes at this point,
but just west of this intersection the lanes begin to merge into a single westbound lane. Id.
When the light turned green, Davis and Bazeley accelerated forward. Id. A truck and car
were in front of Bazeley’s motorcycle. Id. As Bazeley’s lane began to merge into Davis’s
lane, the car in front of Bazeley pulled in front of Davis’s car. Id. The lanes had already
merged when Bazeley passed Davis, so Bazeley drove on the white line of the shoulder of
the road. Id. Davis was traveling fifty miles per hour when Bazeley passed him on the
right. Id. at 89. Seconds after Bazeley passed Davis, Davis heard a squealing noise and
crash. Id.
Price had been waiting to make a left turn at the intersection of McKinley and Home.
Id. at 35. Here, Price activated his left turn signal, came to a complete stop, and waited for
a break in westbound traffic. Id. When Price began his turn, he could see traffic
approaching in the distance on westbound McKinley, but he believed that traffic was far
enough away that it did not present a hazard. Id. at 36. Because a school bus was stopped
at the intersection facing south on Home, Price made a wide-left turn. Id. at 42, 91. As
Price made the left turn, Bazeley, approaching the intersection from westbound McKinley,
attempted to avoid crashing into the trailer by applying the brake; this resulted in a tire skid
mark on the road. Id. at 108. After skidding 198 feet, Bazeley’s motorcycle overturned
onto its right side and slid another fourteen feet into the path of the truck. Id. at 36, 108.
That is, before Price completed his turn, Bazeley’s motorcycle collided with the rear
bumper of the pick-up truck and the front-end of the trailer Price was pulling. Id. at 36,
108. Bazeley was dragged by the trailer for approximately fourteen feet. Id. at 108.
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Bazeley’s body remained in contact with his motorcycle as it was dragged, and he came to
rest on top of his motorcycle. Id. Price stated that before the collision, he did not see or
hear Bazeley’s motorcycle approaching the intersection. Id. at 36. However, although
Davis could no longer see Bazeley’s motorcycle, he was able to hear the screeching of
Bazeley’s tires as the motorcycle skidded into the intersection. Id. at 90. Bazeley died as
a result of his injuries. Id. at 15.
Price and Sampson Fiberglass, as well as Bazeley’s Estate, retained mechanical
engineers to reconstruct and determine the cause of the accident. Price and Sampson
Fiberglass retained Daniel R. Aerni, P.E., of MV Engineering Company, and Bazeley’s
Estate retained R. Matthew Brach, Ph.D., P.E., of Brach Engineering, LLC. Id. at 41, 106.
The experts agreed that Bazeley was a minimum of 342 to 356 feet away from the location
of impact when Price initiated his turn. Id. at 39, 109. The experts further agreed that
Bazeley applied the brakes of his motorcycle before the collision, which left a minimum
198-foot skid mark on the road. Id. at 38, 108.
The speed limit on McKinley Avenue was forty-five miles per hour, and both
experts agreed that Bazeley was traveling in excess of the speed limit. Id. at 86. Aerni
calculated that Bazeley’s pre-skid speed was at least sixty-nine miles per hour, his speed
was the sole cause of the accident, and if Bazeley had been traveling forty-five miles per
hour, there would have been no collision. Id. at 39. Aerni also found that Price would
have needed an additional 1.19 seconds in order to complete the turn to the point where the
westbound lane would have been clear. Id. at 51. In contrast, Brach calculated that
Bazeley’s pre-skid speed was between fifty-nine and sixty-six miles per hour, but it could
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have been as low as fifty-six miles per hour. Id. at 110. Brach also determined that even
if Bazeley had been traveling the speed limit of forty-five miles per hour, the back of the
trailer still would have occupied one-half to one-quarter of the lane in which Bazeley was
traveling, and that light braking would have delayed Bazeley’s motorcycle enough for the
trailer to clear the lane. Id. at 109.
In May 2012 Bazeley’s Estate filed a complaint for wrongful death against Price
and Sampson Fiberglass. The complaint alleged that the accident occurred as a result of
the “carelessness and negligence” of Price while operating his “trailer-tractor” in the course
and scope of his employment with Sampson Fiberglass. Id. at 15. Price and Sampson
Fiberglass filed a motion for summary judgment asserting that “the uncontradicted
evidence establishes that Price did not breach a duty to Bazeley and that Bazeley’s own
negligence was the sole cause of his injuries and death.” Id. at 23. The motion further
asserted that because Price was not negligent, Sampson Fiberglass could not be held liable
under the doctrine of respondeat superior. Id. at 31.
Following a hearing in January 2014, the trial court granted Price and Sampson
Fiberglass’s motion for summary judgment on the issues of causation and apportionment
of fault. Id. at 8-14. The court found in part:
The undisputed facts show that [Price] stopped at the intersection,
signaled he was turning, and after observing oncoming traffic at a distance
began his turn. [Price] did not violate the [left-turn] statute. No vehicle was
either in the intersection or so close to constitute an immediate hazard. The
evidence suggests that the motorcycle was not at the front of the line when
[Price] initiated his turn. Even if the motorcycle was at the front of the line
of traffic at the time [Price] began his turn, the fact that the motorcycle was
able to skid 198 feet and slide another 14 feet, shows that the motorcycle was
in fact a distance from the intersection.
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[Price] did not see the motorcycle approaching, but he did see traffic
at a distance. Further, the motorcycle passed vehicles on the right side of the
road. The motorcycle was traveling at a high rate of speed. No evidence has
been designated that [Price] was in any way negligent. [Price] need not
assume in exercising his duty of reasonable care that other drivers will be
breaking the law. [Bazeley’s] argument that a collision occurred is simply
not sufficient.
Further, the only reasonable conclusion for a trier of fact is that
[Bazeley’s] speed was the cause of the accident. Even in the light most
favorable to [Bazeley], [his] expert opined that the motorcycle was 212 feet
from the point of impact (198 + 14) when he began to brake, that he was
traveling 14 miles over the posted speed limit, and that had he been traveling
at 45 miles per hour, he would have been to the intersection after [Price] had
cleared the road with only slight braking. [Bazeley] had a duty to drive
appropriate for conditions and within the posted speed limit.
Although it is true that a violation of the speed limit “would not ipso
facto render [Bazeley] 100% or even 50% at fault,” here [Price] has presented
expert evidence that [Bazeley’s] speed was the cause of this accident [and
Bazeley] has not presented any fact that rebuts this evidence. [Bazeley’s]
expert did not testify as to causation, but did state had [Bazeley] been
travelling 45 miles per hour, the posted speed limit, he would have had to
break only slightly to give [Price] enough time to exit the roadway. The trier
of fact could not but conclude that [Bazeley] was at least 50% at fault.
Id. at 12-13.
Bazeley’s Estate appeals the trial court’s entry of summary judgment in favor of
Price and Sampson Fiberglass.
Discussion and Decision
When appellate courts review the grant or denial of summary judgment, the
reviewing court stands in the shoes of the trial court and applies the same methodology.
Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 160 (Ind. 2014). The moving party has the
burden of making a prima facie showing from the designated evidentiary matter that there
are no genuine issues of material fact and that it is entitled to judgment as a matter of law.
Id. If the moving party satisfies this burden, then the non-moving party must show from
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the designated evidentiary matter the existence of a genuine issue of fact precluding
summary judgment. Id. In ruling on summary judgment, a court considers only the
designated evidentiary matters, and all evidence and inferences are reviewed in the light
most favorable to the non-moving party. Id. Here, the trial court entered an order
containing facts and conclusions thereon. Miller v. Yedlowski, 916 N.E.2d 246, 249 (Ind.
Ct. App. 2009), trans. denied. This, however, does not change the nature of our review on
summary judgment. Id. In the summary-judgment context, the entry of specific facts and
conclusions aids our review by providing us with a statement of reasons for the trial court’s
decision, but it has no other effect. Id.
Bazeley’s wrongful-death complaint alleges negligence on the part of Price. “In
negligence cases, summary judgment is rarely appropriate.” Rhodes v. Wright, 805 N.E.2d
382, 387 (Ind. 2004). “This is because negligence cases are particularly fact sensitive and
are governed by a standard of the objective reasonable person—one best applied by a jury
after hearing all of the evidence.” Id. Negligence contains three elements: (1) a duty owed
by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury
to the plaintiff as a proximate result of the breach. Key v. Hamilton, 963 N.E.2d 573, 579
(Ind. Ct. App. 2012) (citing Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007)),
trans. denied.
The court stated that Bazeley “had a duty to drive appropriate for the conditions,”
which would include driving the speed limit, but Price did as well. Appellant’s App. p. 13.
Indiana Code section 9-21-8-30 provides the specific standard of care in this case:
A person who drives a vehicle within an intersection intending to turn to the
left shall yield the right-of-way to a vehicle approaching from the opposite
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direction that is within the intersection or so close to the intersection as to
constitute an immediate hazard. After yielding and giving a signal as
required by this chapter, the person who drives the vehicle may make the left
turn, and the persons who drive other vehicles approaching the intersection
from the opposite direction shall yield the right-of-way to the vehicle making
the left turn.
Therefore while Bazeley had a duty not to speed, Price also had a duty not to make a left
turn in front of approaching traffic without first being certain that the traffic was not so
close as to present an immediate hazard. And so, the point of contention in this case is who
caused the collision between Bazeley and Price.1
The trial court ruled that Bazeley failed to produce evidence from which a
reasonable jury could find in Bazeley’s favor on the element of causation, stating “the only
reasonable conclusion for a trier of fact is that [Bazeley’s] speed was the cause of the
accident. Appellant’s App. p. 13. “Causation is an essential element of a negligence
claim.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002), trans.
denied. The injurious act must be both the proximate cause and the cause in fact of the
injury. Id.; see also City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222,
1243 (Ind. 2003), (“Under standard negligence doctrine, in order for a defendant to be
liable for a plaintiff's injury, the defendant’s act or omission must be deemed to be a
proximate cause of that injury.”). “Generally, causation, and proximate cause in particular,
is a question of fact for the jury’s determination.” Correll, 783 N.E.2d at 707; see also
Smith v. Beaty, 639 N.E.2d 1029, 1035 (Ind. Ct. App. 1994) (“The question of causation is
1
Because the elements of breach and causation are so closely intertwined in this case, we address
only the causation issue. However, the decision is applicable to both.
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. . . usually inappropriate for summary disposition because it often requires a weighing of
disputed facts.”).
In support of their motion for summary judgment, Price and Sampson Fiberglass
used their expert’s calculation that Bazeley was traveling at least sixty-nine miles per hour
and Price’s testimony that he had not seen Bazeley when he looked at oncoming traffic
before turning. Price and Sampson Fiberglass argue that when Price began his left turn
Bazeley was on the right side of the road passing vehicles and therefore Price could not
have seen Bazeley, claiming “the uncontradicted evidence makes it clear that Bazeley had
not yet passed the other westbound vehicles when Price began his turn.” Appellees’ Br. p.
12. But this is not an established fact, and the designated evidence does not establish where
Bazeley was when Price began his turn, or why Price did not see Bazeley.
However, Price was aware that the speed limit on the road was forty-five miles per
hour and that the oncoming traffic was approaching at a high rate of speed. Davis stated
that he was traveling at fifty miles per hour and other cars had merged in front of him when
the road narrowed to one lane. Price also knew he was pulling a thirty-seven-foot trailer
and that he had to make an exceptionally wide turn due to the placement of a school bus at
the intersection.
And although both parties’ experts agree that Bazeley was driving above the speed
limit, they disagree about how fast he was driving. Price and Sampson Fiberglass contend
that the difference as to Bazeley’s actual speed “is not a material question of fact”;
however, that is precisely what it is. Id. at 17. If Price and Sampson Fiberglass’s argument
is that Bazeley’s speed was the sole cause of the accident, then his speed is critical in
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determining causation. Price’s expert calculated Bazeley’s speed at sixty-nine miles per
hour, whereas the expert for Bazeley’s Estate calculated a range of fifty-nine to sixty-six
miles per hour, but possibly as low as fifty-six miles per hour. Therefore Bazeley could
have been driving anywhere from eleven to twenty-four miles per hour over the speed limit.
In claiming that Bazeley’s speed alone was the proximate cause of the accident, we find
this disparity to be material.
Again, questions concerning negligence, causation, and reasonable care are more
appropriately determined by the trier of fact. Wilkerson v. Harvey, 814 N.E.2d 686, 690
(Ind. Ct. App. 2004), trans. denied. The designated evidence creates questions of fact as
to where Bazeley was when Price began his turn, why Price did not see Bazeley, and the
speed at which Bazeley was traveling as he approached the intersection. We consequently
find that Price and Sampson Fiberglass did not meet their burden of establishing that no
genuine issues of material fact exist. For these reasons, the trial court erred in granting
Price and Sampson Fiberglass’s motion for summary judgment in finding Bazeley to be
the sole cause of the accident; this is a determination for a jury.2 We therefore reverse the
judgment and remand to the trial court.
Reversed and remanded.
2
Bazeley’s Estate also argues that the trial court erred in granting summary judgment in favor of
Price and Sampson Fiberglass on the issue of apportionment of fault. See Appellant’s App. p. 13 (“The
trier of fact could not but conclude that Plaintiff was at least 50% at fault.”). The apportionment of fault is
uniquely a question of fact to be decided by the fact-finder. Dennerline v. Atterholt, 866 N.E.2d 582, 598
(Ind. Ct. App. 2008), reh’g denied. At some point the apportionment of fault may become a question of
law for the court. Id. But that point is reached only when there is no dispute in the evidence and the fact-
finder is able to come to only one logical conclusion. Id. Given that the evidence shows that Price pulled
his thirty-seven-foot trailer in front of Bazeley’s motorcycle at 1:45 p.m., there is no evidence that his view
was obstructed, and the estate’s expert report shows that had Bazeley been driving the speed limit, Price’s
trailer still would have occupied up to one-half of the westbound lane, we find that the trial court also erred
in entering summary judgment in favor of Price and Sampson Fiberglass on this issue.
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NAJAM, J., and BROWN, J. concur.
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