Gaboury v. Ireland Road Grace Brethren, Inc.

441 N.E.2d 227, 1982 Ind. App. LEXIS 1450
CourtIndiana Court of Appeals
DecidedOctober 26, 1982
Docket3-1081A278
StatusPublished
Cited by5 cases

This text of 441 N.E.2d 227 (Gaboury v. Ireland Road Grace Brethren, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaboury v. Ireland Road Grace Brethren, Inc., 441 N.E.2d 227, 1982 Ind. App. LEXIS 1450 (Ind. Ct. App. 1982).

Opinions

STATON, Judge.

At approximately 1:00 o’clock A.M. Daniel Gaboury was riding a Kawasaki 350 motorcycle home via Glenlake Drive in South Bend, Indiana. He intended to turn onto Coral Drive, but he missed the turn. One hundred fifty feet after Coral Drive, Glenlake Drive terminates into the driveway of the Ireland Road Grace Brethren Church. Gaboury decided to turn around in the driveway of the church. He did not know that ten feet up the driveway a cable was stretched across it. He was injured when he struck the cable.

Gaboury sued Ireland Road Grace Brethren, Inc. and the City of South Bend to recover for his injuries and damages. They filed motions for summary judgment, and the trial court granted both summary judgments.

On appeal, Gaboury contends that the trial court erred when it granted the summary judgments.

We reverse.

The purpose underlying the summary judgment procedure is to terminate those causes of action which have no factual dispute and which may be determined as a matter of law. This procedure is an aid in eliminating undue burdens upon litigants [229]*229and exposing spurious causes. However, the summary judgment procedure must be applied with extreme caution so that a party’s right to the fair determination of a genuine issue is not jeopardized; mere improbability of recovery by the plaintiff does not justify summary judgment for a defendant. Bassett v. Glock (1977), 174 Ind.App. 439, 368 N.E.2d 18, 20-21.

The summary judgment procedure is an application of the law to the facts when no factual dispute exists. The party seeking the summary judgment, therefore has the burden to establish that there is no genuine issue as to any material fact. Any doubt as to a fact, or an inference to be drawn therefrom, is resolved in favor of the party opposing the motion for summary judgment. Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, 1184.

A fact is material if its resolution is decisive of either the action or a relevant secondary issue. Lee v. Weston (1980), Ind.App., 402 N.E.2d 23, 24. The factual issue is genuine if it can not be foreclosed by reference to undisputed facts. That is, a factual issue is genuine if those matters properly considered under Ind.Rules of Procedure, Trial Rule 56 evidence a factual dispute requiring the trier of fact to resolve the opposing parties’ differing versions. Stuteville v. Downing (1979), Ind.App., 391 N.E.2d 629, 631.

Although TR. 56 permits the introduction of affidavits, depositions, admissions, interrogatories and testimony to aid the court in the resolution of the motion for summary judgment, the procedure involved is not a summary trial. Bassett v. Glock, supra. In determining whether there is a genuine issue of material fact, the court considers those facts set forth in the opposing party’s affidavits as true, and liberally construes the products of discovery in favor of the opposing party. And finally, all pleadings, evidence, and inferences therefrom are viewed in the light most favorable to the opposing party. Poxon v. General Motors Acceptance Corp., supra. In reviewing a grant of summary judgment, this Court uses the same standard applicable to the trial court. Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App., 384 N.E.2d 1084, 1090. (Trans, denied) We must reverse the grant of a summary judgment motion if the record discloses an unresolved issue of material fact or an incorrect application of the laws to those facts. Id.

I.

South Bend

Gaboury argues that the City of South Bend negligently placed the lighting of the street. He argues that the City had the duty to sufficiently light the end of the street so that he could have determined where the street terminated and the church driveway began. He stated the following in his affidavit in opposition to summary judgment:

“4. That because of the lighting and the fact that the cable was in no way highlighted, the plaintiff never saw the cable prior to the accident and was never aware that the [sic] had entered the property of the Ireland Road Grace Brethren, Inc.”
“6. That the plaintiff knew that a parking lot of a church was at the end of the road; however, he could not ascertain where the end of the road was located.”

Gaboury testified in his deposition as follows:

“Q. And you were going to go into a parking lot and turn around, right?
“A. [Gaboury] Yes.
“Q. So if there was a parking lot there, it must have meant the road came to an end?
“A. Yes.
“Q. And could you see that parking lot before you got to it?
“A. I’m not sure. There’s a driveway there. I saw the driveway.
“Q. You headed for the driveway, didn’t you?
“A. Yes.
[230]*230“Q. I mean you intended to go into that parking lot to turn around?
“A. Uh-huh.”
“Q. Well, in other words, what I’m trying to ascertain is whether you, in your own mind, are confident with the fact that you did know how that particular intersection was set up and the fact that there was a dead end at Glenlake at that point.
“A. Not really, no. I wasn’t.
“Q. You didn’t know that?
“A. Well, I — I don’t know. I guess I knew there was a driveway there. I didn’t know there was a cable there is what I’m trying to say.
“Q. Well, I’m not asking you about the cable. I’m asking you about the layout of the street.

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Related

Beresford v. Starkey
563 N.E.2d 116 (Indiana Court of Appeals, 1990)
Gaboury v. Ireland Road Grace Brethren, Inc.
446 N.E.2d 1310 (Indiana Supreme Court, 1983)
Gaboury v. Ireland Road Grace Brethren, Inc.
441 N.E.2d 227 (Indiana Court of Appeals, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
441 N.E.2d 227, 1982 Ind. App. LEXIS 1450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaboury-v-ireland-road-grace-brethren-inc-indctapp-1982.