Lilian Ortiz v. Milestone Contractors (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 07 2020, 8:35 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
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Lilian Ortiz Frederick A. Roetter
Avon, Indiana Travelers Staff Counsel Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lilian Ortiz, December 7, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-SC-983
v. Appeal from the Marion Small
Claims Court
Milestone Contractors, The Honorable Cheryl A. Rivera,
Appellee-Defendant. Judge
Trial Court Cause No.
49K04-1911-SC-4626
Najam, Judge.
Statement of the Case
[1] Lilian Ortiz appeals the small claims court’s judgment in favor of Milestone
Contractors (“Milestone”) on her complaint for negligence. Ortiz raises one
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issue for our review, namely, whether the small claims court erred when it
entered judgment for Milestone.
[2] We affirm.
Facts and Procedural History
[3] On October 14, 2017, Milestone was working on a construction project on an
exit ramp off of I-65. That same night, Ortiz was driving northbound on I-65.
Shortly after 2:00 a.m., and approximately one-quarter mile south of the exit
ramp where Milestone was working, “something really hard” hit Ortiz’s
vehicle. Tr. at 16. Ortiz did not see the object, but it “smashed and bent” the
front of her car and broke the fuel line. Id. Ortiz’s vehicle immediately stopped
working, and she pulled her car to the side of the interstate.
[4] On November 6, 2019, Ortiz filed a notice of summons and complaint in the
small claims court. In that complaint, Ortiz asserted that Milestone had
negligently left a piece of “construction material” on the road, which negligence
resulted in damage to her vehicle and exacerbated a pre-existing medical
condition. Appellant’s App. Vol. 2 at 18. The damage to her vehicle,
corresponding expenses, and medical bills totaled $3,000.
[5] The small claims court held a bench trial on January 28, 2020. During the trial,
Ortiz testified that she did not see the object she hit. The supervising contractor
for Milestone then testified that the exit ramp that was under construction was
closed to traffic and that no work was being done south of that exit at the time
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Ortiz hit the object. Following the hearing, the court entered a general
judgment in favor of Milestone. 1 This appeal ensued.
Discussion and Decision
[6] Ortiz appeals the small claims court’s judgment for Milestone. 2 As our
Supreme Court has explained:
We review the facts determined in a bench trial with due regard
given to the opportunity of the trial court to assess witness
credibility under the clearly erroneous standard. This deferential
standard of review is particularly important in small claims
actions, where trials are informal, with the sole objective of
dispensing speedy justice between parties according to the rules
of substantive law.
Morton v. Ivacic, 898 N.E.2d 1196, 1198-99 (Ind. 2008) (cleaned up).
[7] On appeal, Ortiz asserts that the small claims court erred when it entered
judgment in favor of Milestone on her complaint for negligence. To succeed on
her complaint, Ortiz was required to demonstrate that Milestone owed her a
1
Prior to the hearing, Milestone filed a motion to dismiss Ortiz’s complaint and asserted that Ortiz had filed
the complaint outside of the statute of limitations. The court heard argument on that motion at the bench
trial and took the matter under advisement. The court did not specifically rule on Milestone’s motion when
it entered its judgment in favor of Milestone. Ortiz then filed a motion to correct error in which she
maintained that she had timely filed her complaint. The court denied her motion to correct error on the
ground that it had rendered a judgment “based on the merits of the case [and] not Defendant’s Motion to
Dismiss.” Appellant’s App. Vol. 2 at 9. The court then amended its order and explicitly denied Milestone’s
motion to dismiss. See id. at 7.
2
Ortiz has filed a motion to amend in which she asked to change one sentence in her brief and to
supplement the record with certain photographs. In a separate order, we have granted the motion as to her
request to amend the brief but denied it as to her request to supplement the record.
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duty, that it breached that duty by allowing conduct to fall below the applicable
standards of care, and that Milestone’s breach of duty proximately caused her
compensable injuries. See King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003).
[8] Ortiz specifically alleges that Milestone owed her a duty to keep the “lanes clear
of obstacles that could cause accident to any driver[.]” Appellant’s Br. at 14.
She also asserts that Milestone breached that duty “when it did not make sure
the lanes that were open to the public were clear of obstructions that could
cause an accident.” Id. And she contends that that breach caused the damage
to her car and other resulting expenses. We cannot agree.
[9] The evidence most favorable to the small claims court’s judgment demonstrates
that Milestone was doing construction on an exit ramp that was closed to traffic
and that was located at least one-quarter mile north of where Ortiz hit the
object. And the evidence demonstrates that Milestone was not doing any
construction work south of the exit ramp at that time. We acknowledge that a
contractor performing work on a public highway has a duty to the traveling
public to take proper precautions to protect it from a dangerous obstruction
created by his own acts on that highway. See Koroniotis v. LaPorte Transit, Inc.,
397 N.E.2d 656, 659 (Ind. Ct. App. 1979). But Ortiz did not present any
evidence to demonstrate that the object she hit was created by Milestone’s
actions or omissions or that the object was otherwise connected to its
construction project. Indeed, Ortiz testified that she did not see the object, and
she was only able to describe it as “something really hard.” Tr. at 16
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[10] In other words, the evidence most favorable to the judgment shows that Ortiz
hit an unidentified object outside of Milestone’s construction area. That
evidence supports an inference that the area where the incident occurred was
not under Milestone’s control and, thus, that Milestone did not cause Ortiz’s
injury. It was Ortiz’s burden to show that it was more likely than not that
Milestone’s act or omission was the cause in fact of the damages she claims.
She did not meet that burden. We therefore cannot say that the small claims
court clearly erred when it entered judgment in favor of Milestone on Ortiz’s
complaint, and we affirm the court’s judgment.
[11] Affirmed.
Riley, J., and Crone, J., concur.
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