MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 04 2018, 7:55 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES Roger B. Finderson Michael B. Langford Finderson Law LLC R Jay Taylor, Jr. Fort Wayne, Indiana Scopelitis, Garvin, Light, Hanson & Feary, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Arnold Shepherd and December 4, 2018 Carolyn Shepherd, Court of Appeals Case No. Appellants-Plaintiffs, 18A-CT-1233 Appeal from the Kosciusko v. Superior Court The Honorable David Cates, Judge Robert J. Carpenter and Trial Court Cause No. KLLM, Inc., 43D01-1609-CT-56 Appellees-Defendants.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 1 of 24 Case Summary and Issue [1] Following an accident involving a forklift and a semi-tractor trailer, the forklift
operator, Arnold Shepherd, filed suit against the driver of the semi-tractor
trailer, Robert J. Carpenter, and Carpenter’s employer, KLLM, Inc.
(collectively, “Defendants”). The trial court awarded summary judgment in
favor of the Defendants. On appeal, Shephard argues the trial court
erroneously granted summary judgment because genuine issues of material fact
remain. Concluding the Defendants are entitled to judgment as a matter of law,
we affirm.
Facts and Procedural History [2] In the fall of 2014, Shepard was employed as a forklift driver by a processing
plant owned by Creighton Brothers, LLC, d/b/a Crystal Lake, LLC (“Crystal
Lake”), in Warsaw, Indiana. Shepard’s primary responsibilities included
loading and unloading products from trailers arriving at Crystal Lake.
[3] Crystal Lake’s loading dock includes a safety system that secures trailers in
place while being loaded and unloaded. To secure a trailer, dock workers
activate a metal arm which raises from the ground level below the dock bay to
the space between the body of a trailer and a safety bar extending from the rear
of the trailer. Once properly secured, a trailer cannot pull away from the
loading dock.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 2 of 24 [4] This safety system also includes two sets of red and green lights. The first set of
lights is positioned on the interior of the dock and notifies dock workers when
the trailer is secured while the second set of lights is positioned on the exterior
of the dock to notify drivers. The two sets of lights work in tandem and cannot
be the same color at the same time; therefore, if the driver’s light is green, the
dock’s light is red, and if the driver’s light is red, the dock’s light is green. For
the dock workers, a green light reflects that it is safe to load or unload the
trailer. For the drivers, a green light means it is safe to pull away with a trailer.
[5] On October 23, 2014, Carpenter arrived at the Crystal Lake facility and backed
his KLLM tractor trailer unit into a loading area. Carpenter set his air-brakes,
exited the semi, and walked back toward the dock. Shepherd and his co-
worker, Michael Williams, were waiting at the dock to load the trailer.
Shepherd, whose view of the lighting system was obstructed by Williams, drove
his forklift into the open trailer. Unbeknownst to Shepherd, however,
Carpenter had reentered the semi, and at the moment the front wheels of
Shepherd’s forklift came into contact with the trailer, Carpenter pulled the
trailer forward. Shepherd’s forklift fell three feet to the ground between the
dock bay and the rear of the trailer. His leg was broken in the fall.
[6] On September 6, 2016, Shepherd and his wife, Carolyn, filed a complaint
against the Defendants alleging negligence and seeking damages for personal
injuries and loss of consortium. Defendants filed a motion for summary
judgment on February 28, 2018. Shepherd filed his response and designated
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 3 of 24 evidence on March 30. After a hearing, the trial court granted the Defendants’
motion for summary judgment. Shepherd now appeals.
Discussion and Decision I. Standard of Review [7] Summary judgment is a tool which allows a trial court to dispose of cases where
only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The
moving party has the initial burden to show the absence of any genuine issue of
material fact as to a determinative issue. Id. As opposed to the federal standard
which permits the moving party to merely show the party carrying the burden
of proof lacks evidence on a necessary element, Indiana law requires the
moving party to “affirmatively negate an opponent’s claim.” Id. (quotation
omitted). The burden then shifts to the non-moving party to come forward with
contrary evidence showing an issue to be determined by the trier of fact. Id.
Although this contrary evidence may consist of as little as a non-movant’s
designation of a self-serving affidavit, summary judgment may not be defeated
by an affidavit which creates only an issue of law—the non-movant must
establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d
436, 441-42 (Ind. 2015).
[8] On appeal, we review summary judgment with the same standard employed by
the trial court: relying only on the evidence designated by the parties and
construing all facts and reasonable inferences in favor of the non-moving party,
we will affirm the grant of summary judgment “if the designated evidentiary Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 4 of 24 matter shows that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C);
City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). “A fact is
‘material’ if its resolution would affect the outcome of the case, and an issue is
‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of
the truth . . . or if the undisputed material facts support conflicting reasonable
inferences.” Celebration Worship Ctr., Inc. v. Tucker, 35 N.E.3d 251, 253 (Ind.
2015) (citation omitted).
[9] Notably, the non-moving party has the burden of persuading us that the trial
court’s ruling was erroneous. Hughley, 15 N.E.3d at 1003. Mindful of
Indiana’s onerous and distinctive summary judgment standard aimed at
protecting a party’s day in court, however, we must carefully assess the trial
court’s decision. Id.
II. Summary Judgment [10] Shepherd argues the trial court erroneously granted summary judgment in favor
of the Defendants. Specifically, Shepherd claims that in response to the
Defendants’ motion for summary judgment, he designated several genuine
issues of material fact, which must be resolved at a later trial. The Defendants
argue, not unexpectedly, that no genuine issues of material fact remain.
A. Admissible Evidence [11] As an initial matter, Shepherd contends the Defendants improperly relied on
the affidavit of Williams, whom Shepherd alleges is an “unavailable, unique
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 5 of 24 witness prohibited from consideration for summary judgment[.]” Amended
Brief of Appellants at 25. Because Shepherd did not file a motion to strike or
otherwise object to Williams’ affidavit in the trial court, he has waived this issue
for our review.
[12] In support of their motion for summary judgment, the Defendants designated
the affidavit of Williams, Shepherd’s co-worker and the only eyewitness to the
accident. Williams’ affidavit provides, in relevant part:
On October 23, 2014, I was working on the Crystal Lake freight dock with [Shepherd], another dockhand. We were the only two dockhands in that dock area at the time. I was standing by the dock door as [Shepherd] prepared to enter a trailer on a forklift. As he approached, I noticed the interior warning light was red, indicating the dock lock was not activated and that it was not safe to enter the trailer because the trailer could move. I immediately activated the lock button to engage the dock lock; however, [Shepherd’s] forklift was already entering the trailer.
At the exact moment [Shepherd] began to enter the trailer on the forklift, the trailer began to move forward. The movement could not have occurred if the dock lock was engaged. The trailer’s forward movement caused the forklift to fall between the dock wall and rear of the trailer. [Shepherd] was injured in the fall.
In my experience working with the dock locks at Crystal Lake, [Shepherd] should not have entered the trailer while the interior door lock light was red, indicating the lock was not engaged and the trailer could move. In my experience, the truck driver could not have moved if the lock was engaged, but would have believed it was safe to do if the lock was not engaged because the exterior light would have displayed green.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 6 of 24 Based on my experience and training, [Shepherd] caused his own injury. The truck driver could not have known that [Shepherd] was entering the trailer and would have believed that it was safe to pull away from the dock because he would have seen the exterior green light indicating it was safe to do so.
I informed Warehouse Manager Kevin McSherry and Plant Manager Jeff Johnson about what I saw that day. Mr. Johnson instructed me to forget what I observed.
Appellant’s Appendix, Volume II at 74-75.
[13] In ruling on a motion for summary judgment, a trial court may only consider
material deemed appropriate by Indiana Trial Rule 56(E). Duncan v. Duncan,
764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied. That rule provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
The affidavit requirements of Trial Rule 56(E) are mandatory and a court
considering a summary judgment motion should disregard inadmissible
information contained in supporting or opposing affidavits. Id. The party
offering the affidavit into evidence bears the burden of establishing its
admissibility. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 7 of 24 [14] However, it is well settled that arguments not presented to the trial court on
summary judgment are waived on appeal. King v. Ebrens, 804 N.E.2d 821, 826
(Ind. Ct. App. 2004). “A complaining party has a duty to direct the trial court’s
attention to a defective affidavit, and failure to raise an objection constitutes
waiver.” Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990). Because
Shepherd did not file a motion to strike or otherwise object to Williams’
affidavit in the trial court, we cannot conclude that the trial court erred in
considering Williams’ affidavit.1
B. Negligence [15] Shepherd’s underlying claims sound in negligence, a tort that requires (1) a duty
owed by the defendant to the plaintiff; (2) a breach of that duty by allowing
conduct to fall below the applicable standard of care; and (3) compensable
injury to the plaintiff proximately caused by the defendant’s breach of duty.
E.g., Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). Duty is generally a
question of law to be determined by the court while breach and proximate cause
1 Furthermore, under the doctrine of invited error, a party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct. Smith v. McLeod Distrib., Inc., 744 N.E.2d 459, 466 (Ind. Ct. App. 2000). At the summary judgment hearing, Shepherd’s counsel stated: I would also point out, Your Honor, with Mr. Williams since he’s not around, though the affidavit is fully appropriate in a summary judgment setting, unless he’s deceased, which I have no knowledge of one way or the other, that affidavit is not admissible at trial. We have tried, as I said, to take his deposition to clarify what Mr. Williams might have to say. But as it is, here at this level, I don’t think we need to rely on Mr. Williams one way or the other in order to obtain the position that Mr. Carpenter breached duty. Transcript, Volume 2 at 13. Therefore, not only did Shepherd fail to object to the affidavit, he admitted the affidavit was “fully appropriate in a summary judgment setting[.]” Id. In so doing, Shepherd invited any error and he cannot now complain thereof.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 8 of 24 generally present questions of fact which must be determined by a factfinder.
E.g., Megenity v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017). “[S]ummary
judgment is generally inappropriate in negligence cases because issues of
contributory negligence, causation, and reasonable care are more appropriately
left for the trier of fact.” Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind.
Ct. App. 2004) (citations omitted), trans. denied. Nonetheless, summary
judgment is appropriate when the undisputed material evidence negates one
element of a negligence claim. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind.
2004).
[16] It is uncontested that Carpenter owed Shepherd a duty to operate his semi-
tractor trailer in a reasonable manner. Although the breadth of that duty is left
unexplored by the parties, under Indiana tort law, except when a specific duty is
declared by statute or common law, “the duty of care is well established—that
which is reasonable under the circumstances.” Estate of Heck ex rel. Heck v.
Stoffer, 786 N.E.2d 265, 270 (Ind. 2003). The Defendants’ motion for summary
judgment argued solely that Shepherd has failed to demonstrate a breach of
duty, Appellant’s App., Vol. II at 47, and, in response, Shepherd designated
“six primary disputed facts[.]” Appellant’s Amended Brief at 7.
1. Was the Interior Dock Light Green?
[17] First, Shepherd argues circumstantial evidence creates a genuine issue of
material fact regarding the color of the lighting system at the time of the
accident. In their motion for summary judgment, the Defendants alleged:
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 9 of 24 Every witness—all of whom are Shepherd’s co-workers—confirm that Shepherd attempted to drive his forklift onto the KLLM trailer even though Shepherd had a red light. By definition, according to the witnesses, this red light means that: (1) the trailer was not locked into the dock through the docking engagement system and (2) Carpenter, the truck driver, had a green light, which means he could drive forward. It is further undisputed that the green light / red light and docking system were fully functional and operational at the time of this incident.
Appellant’s App., Vol. II at 47-48.
[18] Indeed, Williams’ affidavit provides:
As [Shepherd] approached, I noticed the interior warning light was red, indicating the dock lock was not activated and that it was not safe to enter the trailer because the trailer could move. I immediately activated the lock button to engage the dock lock; however, [Shepherd’s] forklift was already entering the trailer.
Id. at 74.
[19] The accident was also captured on the facility’s video system. Two supervisors
who reviewed the video confirmed the interior dock light was red at the time
Shepherd’s forklift entered the trailer. Jeffery Johnson, Crystal Lake’s plant
manager, stated during his deposition:
[Johnson]: The light [sic] my opinion of the video was that the light was red inside the building.
[Question]: Okay, and you say that because you can see the light on the right side activated?
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 10 of 24 [Johnson]: Yes, sir.
[Question]: Is that right? Okay. It’s black and white. Therefore, you can’t pick out the colors.
[Johnson]: The videos are in color.
[Question]: Oh, they are?
[Johnson]: But, they cannot, because of the distance and because of the lighting in that room, it appears to be black and white.
[Question]: I understand now. Okay, but the fact that it’s on the right side, and that’s the one that’s activated, tells you he had the right, the red light?
[Johnson]: Yes, sir.
Appellant’s App., Vol. III at 128.
[20] Kevin McSherry, Crystal Lake’s shipping and transportation manager, agreed
with Johnson’s assessment of the video during his own deposition:
[Question]: Based on your investigation, do you believe that Mr. Shepherd had the green light to enter the trailer when he did?
[McSherry]: When he went across the plate, I don’t believe he did.
[Question]: Why do you reach that opinion?
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 11 of 24 [McSherry]: Because, in the video, it shows differently.
Id. at 40.
[21] Finally, Carpenter stated the exterior dock light was green in his interview with
police following the accident. The resulting accident report states, in relevant
part:
Robert Carpenter stated he looked and observed that he had the green light to proceed to pull away from the dock. Robert Carpenter began to pull forward and then he heard a loud crashing sound.
Id. at 89. Therefore, Williams and Carpenter, the only eyewitnesses to the
lighting system at the time of the accident testified that the interior dock light
was red, and the exterior dock light was green, respectively. The fact that the
interior dock light was red was also confirmed by the two witnesses who
reviewed the video of the accident.
[22] Shepherd himself was unable to state whether he had a red or a green light at
the time he entered the trailer because Williams was blocking his view.
Shepherd emphasizes, however, that this is distinguishable from an admission
that the light was red, because:
It is possible to deny the light was red based on the way the dock lock system worked, . . . specifically, the dock lock was activated and fully engaged in the upward “locked” position, while the crookedness of the trailer caused it to avoid being actually held fast to the dock, allowing the trailer to be pulled away from the dock.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 12 of 24 Amended Br. of Appellants at 13.
[23] In support of this argument that the “dock lock was activated and fully engaged
in the upward ‘locked’ position,” id., Shepherd points to McSherry’s deposition
testimony. McSherry arrived at the scene within a minute of the accident.
During his deposition, McSherry identified a photograph which depicted the
dock lock mechanism in the locked position and stated that the photograph
accurately depicted the post-accident scene that he had observed. Appellant’s
App., Vol. III at 25.
[Question]: If Mr. Shepherd had a red light, would the trailer have been locked?
[McSherry]: No.
[Question]: If he had a green light, does that tell you the trailer would have been locked?
[McSherry]: It tells me that the lock would be in the up position.
[Question]: But, it can’t tell you whether it’s actually latched onto the bumper?
[McSherry]: Right.
[Question]: What do you think happened here?
[McSherry]: It’s my opinion that the lock was in the up position, but was not, due to the trailer being so crooked, was not actually hooked because as you see, the lock in
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 13 of 24 [Defendant’s Exhibit 13], there’s not a lot of room for leeway there, and if that hook goes underneath the bumper, the bumper could slide right off.
Id. at 41-42.
[24] Thus, on one hand, McSherry’s opinion was “that the lock was in the up
position,” while on the other hand, based upon his review of the video,
McSherry stated the interior dock light was red at the time Shepherd drove his
forklift into the trailer. Id. It is uncontested by the parties, and established by
McSherry’s own testimony, that “[w]hen the lock is in the up position, the
[interior dock] light is green.” Id. at 41. Therefore, to the extent McSherry
offers his opinion regarding the position of the lock at the time of the accident,
his deposition testimony is internally inconsistent. And, generally, a witness’s
inconsistent testimony cannot create a genuine issue of material fact. Miller v.
Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001) (finding no issue of material fact
where witness was inconsistent).
[25] In any event, the evidence presents a rather simple explanation for this apparent
inconsistency. As Williams’ affidavit explains, he immediately activated the
locking mechanism after noticing Shepherd was approaching the trailer under a
red light, but it was too late to prevent the trailer from pulling forward. This is
the only evidence in the record describing how and when the dock lock was
activated and why it did not secure to the trailer. Because of Williams’ actions,
the interior dock light would have been red at the time Shepherd entered the
trailer and the lock would also have been in the locked position, i.e., the dock
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 14 of 24 light was green, as McSherry arrived on the scene of the accident moments
later.
[26] Here, the Defendants designated several pieces of direct evidence that the
interior dock light was red at the time Shephard entered the trailer. Shepherd,
in response, designated evidence that the locking mechanism was in the
upward, locked position after the accident. Although negligence may be proved
by circumstantial evidence, see Richter v. Klink Trucking, Inc., 599 N.E.2d 223,
227 (Ind. Ct. App. 1992) (noting negligence may be proved by direct or
circumstantial evidence), trans. denied, Shepherd’s circumstantial evidence fails
to contradict the evidence advanced by the Defendants, and in fact, fits logically
within the Defendants’ theory of events. By failing to present a differing
version of the facts for the trier of fact to resolve, Shepherd has failed to
demonstrate a genuine question of material fact. See, e.g., Tucher v. Brothers Auto
Salvage Yard, Inc., 564 N.E.2d 560, 563 (Ind. Ct. App. 1991), trans. denied.
Accordingly, we conclude Shepherd failed in his burden of persuading us that
the trial court’s ruling was erroneous as it pertains to the color of the interior
dock light at the time of the accident. Hughley, 15 N.E.3d at 1003.
2. Was the Trailer Crooked?
[27] Arguing the color of the interior dock light is not “the only material fact” upon
which summary judgment hinges, Shepherd proceeds to the question of
whether Carpenter parked his trailer “extremely crooked.” Amended Br. of
Appellants at 16. Specifically, Shepherd argues this fact is material “in that if it
was so ‘extremely crooked’ as to prevent the dock lock from holding the trailer, Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 15 of 24 then it combines with the other disputed facts to demonstrate Carpenter’s
failure to exercise reasonable care toward Shepherd.” Id. at 16-17.
[28] In support of his argument, Shepherd points to McSherry’s deposition
testimony that Williams repeatedly stated “the trailer was crooked” following
the accident,2 and reemphasizes McSherry’s “opinion that the lock was in the
up position, but was not, due to the trailer being so crooked, was not actually
hooked[.]” Appellant’s App., Vol. III at 42.
[29] Notably, Shepherd’s own deposition testimony contradicts his theory that the
trailer was crooked. Shepherd stated:
[Question]: Do you know why [Carpenter] moved?
[Shepherd]: He said he was crooked and realigned, but everything inside lined up perfectly for him.
[Question]: That does happen though right? Sometimes tractor trailer drivers do get crooked and out of line and sometimes they will move forward and readjust.
[Shepherd]: He’s the only one I have ever had that has ever come all the way against the dock and then pull up like that. I have had some come about half way to
2 The Defendants argue Williams’ out-of-court statements are inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is generally inadmissible. Ind. Evidence Rule 802. However, on the facts presented, Williams’ statements would be admissible at a later trial as an excited utterance. Ind. Evidence Rule 803(2) (“A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”). Thus, the trial court appropriately considered the statements on summary judgment.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 16 of 24 the dock and see they’re not straight and they would pull up and realign, but not come up all the way against the dock.
[Question]: But he was clearly not locked in. Is that right?
[Shepherd]: Apparently not.
[Question]: Because he would not have been able to move forward if he was locked in?
[Shepherd]: Sure.
[Question]: And if he was locked in there would have been a green light for you?
[Shepherd]: Yes.
Appellant’s App., Vol. II at 222-23.
[30] Even allowing for all reasonable inferences in Shepherd’s favor, as we must, we
still cannot conclude Shepherd has demonstrated a genuine issue of material
fact. As discussed above, Shepherd has failed to produce evidence that the
dock lock was activated before Shepherd entered the trailer. Williams’ affidavit
explains that he activated the dock lock after Shephard was approaching the
trailer but that he was too late to prevent the trailer from pulling forward.
Further evidence reveals the interior dock light was red as Shepherd entered the
trailer and therefore, by definition, the dock lock could not have been activated.
In the absence of such evidence, Shepherd has failed to demonstrate
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 17 of 24 Carpenter’s crooked parking prevented the dock lock from holding the trailer in
place. Therefore, the trial court properly granted summary judgment as to this
issue.
3. Should Carpenter Have Pulled Forward?
[31] Third, Shepherd argues that regardless of the color of the dock light, Carpenter
should not have backed all the way up to the dock before attempting to pull
forward from the dock to correct his alignment. Once again Shepherd
designates McSherry’s testimony in support of this argument:
[Question]: How often does it happen in a day that a truck driver doesn’t get lined up evenly and has to sort of move back out and move back in?
[McSherry]: Actually, it’s pretty rare, but I don’t, in a day, I don’t, we probably wouldn’t have one in a day at that dock. It might be one a month, or one . . .
[Question]: In that particular dock?
[McSherry]: Yeah. Well, in those four dock doors.
[Question]: All right, so a dozen times a year that happens?
[McSherry]: I think that’d be an extreme, yeah.
[Question]: Well, I don’t want to be extreme. I want to try to be [sic] I understand it. I’m asking you to give me your best judgement [sic], fourteen years of being
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 18 of 24 around this dock, and so what’s your best judgment?
[McSherry]: Maybe eight times a year.
***
[Question]: Is it more common or less common for a driver to see he is going in crooked, stop, and try to correct it before he’s gotten all the way to the dock itself?
[McSherry]: Oh, it’s very common to correct yourself.
[Question]: So, if you see yourself going in a little bit wackajawed and crooked, you’ll stop it before you even get to the dock, straighten it out, and then go back?
[McSherry]: Yeah.
[Question]: Should you be able to see whether or not you’re going in crooked well before you ever get to the dock?
[Question]: And then, indeed if you go in crooked and get all the way to the dock, and the dock workers go to work doing the things that you’ve trained them to do, they could put that locking arm up, and not secure that trailer?
[McSherry]: That’s right.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 19 of 24 Appellant’s App., Vol. III at 58-59; 75-76.
[32] It appears Shepherd’s argument is that, because efforts to realign trailers after
they have backed all the way up to the dock only occur approximately eight
times per year, it is foreseeable that dock workers could mistakenly enter
crookedly-parked trailers before they are realigned. However, the evidence
establishes the red and green light safety system is used to prevent exactly that.
And, once again, because the uncontroverted evidence establishes the interior
dock light was red at the time Shepherd entered the trailer, we conclude
Shepherd has failed to demonstrate a genuine issue of material fact.
4. Could Carpenter See the Exterior Dock Light?
[33] Fourth, Shepherd alleges Carpenter could not have seen whether the exterior
dock light was green because of “his crooked parking[.]” Amended Br. of
Appellants at 18. Shepherd again points to McSherry’s testimony:
[Question]: Is there any way based on where he is in this cab that he could possibly have seen Mr. Shepherd’s forklift move into the trailer?
[Question]: Why is that?
[McSherry]: The mirrors on the truck look down the side of the trailer, and [Shepherd] was going into the center of the trailer, and he wouldn’t have seen that. He was so crooked, I question whether he could even see the light on the wall of . . .
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 20 of 24 [Question]: But, you don’t know one way or the other. Right?
[McSherry]: I do not know.
Appellant’s App., Vol. III at 82.
[34] It appears that Shepherd intended for McSherry’s testimony to provide an
opinion as a lay witness. Indiana Evidence Rule 701 provides:
If the witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.
An opinion under this rule is rationally based, for purposes of this rule, if a
reasonable person normally could form the opinion from the perceived facts.
Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 769 (Ind. Ct. App. 2003). An
opinion is helpful, for purposes of the rule, if the testimony gives substance to
facts, which were difficult to articulate. Id.
[35] Here, McSherry did not provide an opinion as a lay witness; rather, McSherry
simply “question[ed] whether [Carpenter] could even see the light on the
wall[.]” Appellant’s App., Vol. III at 82. It is well established that “guesses,
supposition and conjecture are not sufficient to create a genuine issue of
material fact to defeat summary judgment.” Midwestern Indem. Co. v. Sys.
Builders, Inc., 801 N.E.2d 661, 666 (Ind. Ct. App. 2004), trans. denied. Put
simply, McSherry’s questioning of Carpenter’s line of vision is insufficient to
create a genuine issue of material fact.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 21 of 24 5. Was the Dock Lock Was Engaged?
[36] For his fifth issue, Shepherd simply rehashes his argument regarding
Carpenter’s crooked parking, alleging the dock lock could have been engaged
without latching onto the trailer to prevent it from moving forward and
Shepherd would have therefore had a green light. Although the record
establishes the possibility of this scenario, the uncontroverted evidence reveals
the dock lock was not engaged as Shepherd entered the trailer. As discussed
above, the interior dock light was red and Williams “immediately activated the
lock button to engage the dock lock; however, [Shepherd’s] forklift was already
entering the trailer.” Appellant’s App., Vol. II at 74. Thus, the evidence
demonstrates it was the trailer pulling forward, not the trailer’s alignment, that
prevented the dock lock from actively engaging.
6. Could Carpenter Have Felt Shepherd’s Forklift?
[37] Finally, Shepherd alleges Carpenter knew, or should have known, that he was
operating his forklift in the trailer. While Shepherd’s deposition testimony
conceded that Carpenter could not have seen him using the semi’s side mirrors,
Shepherd nevertheless argues Carpenter would have “felt the weight of the fork
lift . . . [t]he weight going onto the trailer.” Id. at 195.
[38] First, as explained above, opinion testimony by lay witnesses is limited to
opinions rationally based on the witness’s own personal observation,
knowledge, and experience. Ind. Evid. R. 701(a); Ackles v. Hartford Underwriters
Ins. Corp., 699 N.E.2d 740, 743 (Ind. Ct. App. 1998), trans. denied. There is no
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 22 of 24 evidence Shepherd has ever driven a semi and there is similarly no evidence
that Shepherd has ever been in the cab of a semi. Thus, Shepherd’s speculation
as to what Carpenter would have or should have felt in the cab is insufficient to
create a genuine issue of material fact. Midwestern Indem. Co., 801 N.E.2d at
666.
[39] In any event, Shepherd stated the trailer “went down a little” as his front wheels
came into it, but that there was no “shaking or disturbance of the trailer at
all[,]” and Shepherd had no idea if his entry had any effect on the trailer nearer
the semi. Appellant’s App, Vol. II at 233. Moreover, the evidence establishes
an almost simultaneous series of events where Shepherd drove onto the trailer
just seconds before Carpenter pulled forward. On this evidence, no reasonable
jury could conclude Carpenter should have known there was a forklift in the
trailer—or could have known a forklift was in the trailer in time to prevent an
accident such as this. Accordingly, Shepherd has again failed to demonstrate a
genuine issue of material fact precluding summary judgment.
Conclusion [40] The uncontroverted evidence demonstrates that Shepherd entered the trailer
under a red light. For this and other reasons more thoroughly explained above,
the Defendants are entitled to judgment as a matter of law and we therefore
affirm the trial court’s grant of summary judgment.
[41] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 23 of 24 Baker, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1233 | December 4, 2018 Page 24 of 24