William Thatcher and Angela Thatcher v. City of Marion (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 18 2016, 5:41 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE John P. Daly, Jr. James S. Stephenson Golitko & Daly, PC Stephenson Morow & Semler Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William Thatcher and Angela November 18, 2016 Thatcher, Court of Appeals Case No. Appellants, 27A02-1512-CC-2257 Appeal from the Grant Circuit v. Court The Honorable Mark E. Spitzer, City of Marion, Judge Appellee. Trial Court Cause No. 27C01-1302-CC-193

Pyle, Judge.

Statement of the Case [1] William Thatcher (“Thatcher”) and his wife Angela (“Angela”) (collectively

“the Thatchers”) appeal the trial court’s grant of summary judgment in favor of

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the City of Marion (“the City”) in the Thatchers’ negligence action. Finding no

designated evidence that the City had notice of the pothole in the alley where

Thatcher was injured, we affirm the trial court’s grant of summary judgment in

favor of the City. [2] We affirm.

Issue Whether the trial court erred in granting summary judgment in favor of the City.

Facts [3] Thatcher was the distribution center manager for the Chronicle-Tribune

(“Tribune”) newspaper in the City. His job duties included transferring

newspaper inserts from the newspaper’s warehouse to its nearby main building.

Specifically, Thatcher used a forklift to pick up skids of inserts at the warehouse

and then drove them down a municipal alley to the main building. At

approximately 10:00 p.m. on November 13, 2011, as he was backing up in the

alley, Thatcher felt the back tire of the forklift go into a pothole. The forklift

then tipped over, landing on and injuring Thatcher’s foot. [4] On February 28, 2013, the Thatchers sued the City for negligence, with Angela

making a claim for loss of consortium. In August 2015, the City filed a

summary judgment motion wherein it argued, among other things, that it did

not have actual or constructive notice of the pothole. In support of its motion,

the City designated an affidavit from Michael Graft, head of the City’s

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engineering department. Graft stated that he had requested a review of City

records to determine whether the City had received notice concerning potholes

or other conditions in the alley behind the Chronicle-Tribune building.

According to Graft, the City had not received notice concerning potholes or

other conditions in this alley. [5] The City also designated Thatcher’s deposition wherein he explained that the

Tribune’s former publisher Neal Ronquist (“Ronquist”) was the only Tribune

employee who had ever reported a condition of the alley to the City. Thatcher

believed that Ronquist spoke to the mayor “[s]omewhere after we came back in

2007.” (App. 138). At that time, the City and the Tribune each contributed to

the installation of a concrete pad at the Tribune’s loading dock. Thereafter,

Tribune employee Tim Dixon filled the alley’s potholes most of the time.

Thatcher did not remember the City ever filling any of the potholes. Thatcher

further explained that he did not see the pothole he believed he hit, and he also

stated that he did not know which one it was. According to Thatcher, the

pothole that he hit “could have just came up.” (App. 63). [6] In his response in opposition to the City’s summary judgment motion, Thatcher

also designated his deposition as evidence and argued that the City had

“constructive and actual knowledge that forklifts were being used in this alley.”

(App. 127). Thatcher’s response addressed neither the City’s constructive or

actual notice of the potholes nor the specific pothole alleged to have caused his

injuries.

Court of Appeals of Indiana | Memorandum Decision 27A02-1512-CC-2257| November 18, 2016 Page 3 of 6 [7] Following a hearing, the trial court granted summary judgment in favor of the

City. The Thatchers appeal.

Decision [8] The Thatchers argue that the trial court erred in granting summary judgment in

favor of the City. We review an order for summary judgment de novo, which is

the same standard of review applied by the trial court. Ind. Restorative Dentistry,

P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015), reh’g denied. The

moving party must “affirmatively negate an opponent’s claim” by

demonstrating that the designated evidence raises no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law. Id.

The burden then shifts to the nonmoving party to demonstrate a genuine issue

of material fact. Id. [9] In deciding whether summary judgment is proper, we consider only the

evidence the parties specifically designated to the trial court. Ind. Trial Rule

56(C), (H). We construe all factual inferences in favor of the nonmoving party

and resolve all doubts regarding the existence of a material issue against the

moving party. Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. 2014). Our

review of a challenged trial court summary judgment ruling is restricted neither

to the claims and arguments presented at trial nor the rationale of the trial

court’s ruling. Id. Rather, we may affirm a grant of summary judgment upon

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any theory supported by the evidence.1 Wagner v. Yates, 912 N.E.2d 805, 811

(Ind. 2009). [10] The duty of a governmental entity to maintain and repair roads within its

control does not attach unless the city has actual or constructive notice of the

alleged defect. Harkness v. Hall, 684 N.E.2d 1156, 1161 (Ind. Ct. App. 1997),

trans. denied; Utley v. Healy, 663 N.E.2d 229, 233 (Ind. Ct. App. 1996), trans.

denied. Here, the alleged defect was the pothole. When the City affirmatively

negated the Thatchers’ negligence claim with an affidavit from the City’s

engineer that the City had never received notice of the pothole, the burden

shifted to the Thatchers to show that the City had received notice of the

pothole. This would have demonstrated a genuine issue for trial. The

Thatchers, however, instead designated evidence of knowledge that forklifts

were being used in the alley. [11] On appeal, the Thatchers argue that there “is designated evidence the

newspaper complained about the condition of the alley before the accident.

(Appellant’s App. pp. 138-139). This is actual and not just constructive notice .

. . .” (The Thatchers’ Reply Br. 4). However, these cited pages of the

Thatchers’ appendix contain the evidence that the City designated in support of

its summary judgment motion. Specifically, these pages reveal that sometime

after 2007, the Tribune’s former publisher advised the City about the condition

1 Here, the trial court granted summary judgment in favor of the City based upon Thatcher’s contributory negligence. We affirm the grant of summary judgment on a different theory.

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of the alley and the City and the Tribune each contributed to the installation of

a concrete pad at the Tribune’s loading dock. This is not evidence that the City

received notice about the current potholes in the alley, which was necessary to

create a genuine issue for trial. The trial court did not err in granting summary

judgment in favor of the City. See Bodnar v. City of Gary, 629 N.E.2d 278 (Ind.

Ct. App. 1994), reh’g denied, (affirming the trial court’s grant of summary

judgment where Bodnar failed to offer any evidence of notice to the City about

a tree limb that obscured a stop light).2 [12] Affirmed.

Kirsch, J., and Riley, J., concur.

2 Because the Thatchers’ cause of action has failed, so too has Angela’s derivative claim of loss of consortium. See Durham ex rel. Estate of Wade v. U-Haul Intern., 745 N.E.2d 755, 764 (Ind. 2001). (explaining that “if the spouse’s cause of action for personal injury fails, the loss of consortium claim fails with it”).

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