Split COA reinstates suit of pedestrian hit by deputy’s vehicle

Dave Stafford for www.theindianalawyer.com

A man who was walking on the wrong side of the road in dark clothes at night and was struck by a Marion County deputy driving a jail transport vehicle may pursue his negligence claim, a divided Indiana Court of Appeals panel ruled Friday, reversing the trial court.

In late November 2011, Charles Hill and his daughter Macey were walking home from a nearby park along Fox Hill Road when he was struck by a vehicle driven by Deputy Erich Gephart. The two walked on the same side of the road as the family home is located so as not to cross traffic, according to the record. There are no sidewalks on either side of the road.

A Marion Superior court granted summary judgment in favor of the Indianapolis defendants in Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, et al. v. Erich E. Gephart, City of Indianapolis, et al., 49A02-1509-CT-1288.On appeal, the Hills argued Charles Hill’s contributory negligence was an issue to be decided as a trier of fact and not a matter of law. A majority of the appeals panel agreed.

“It is up to the jury to determine whether (Charles Hill’s walking on the wrong side of the road) was reasonable or if Charles contributed to his injuries,” Judge Paul Mathias wrote in the majority opinion joined by Judge James Kirsch. “(A) genuine issue of material fact exists as to whether Charles was contributorily negligent, and the trial court erred by disposing the Hills’ claim on summary judgment.”

Judge Elaine Brown dissented and would affirm the trial court. She noted Hill was in violation of I.C. 9-21-17-14, which requires that pedestrians walk “only on the left side of the roadway.” She wrote that because Hill also wore dark clothing at night and talked on his cell phone, no material fact exists as to his contributory negligence.