Edward HURST, Individually and as Next Friend of Michael Hurst, Edward Hurst and Kathryn Butler, as Co-Special Administrators of the Estate of Linda Hurst, Deceased, and Edward Hurst, as Father of Edward Hurst, Jr., Deceased, and Thomas Hurst, Deceased, Appellants (Plaintiffs Below), v. The BOARD OF COMMISSIONERS OF the COUNTY OF PULASKI and Pulaski County, Indiana, Appellee (Defendant Below).
No. 3-882A219
Court of Appeals of Indiana, Third District
March 16, 1983
Rehearing Denied April 18, 1983
HOFFMAN, Presiding Judge.
In general, evidence that the accused committed a crime separate and distinct from the one charged is irrelevant and therefore inadmissible to prove that the accused committed the instant crime. The evidence is admissible, however, if it tends to prove intent, motive, purpose, identification or common scheme or plan. Downer v. State, (1982) Ind., 429 N.E.2d 953. To be admissible, the State must prove that the crimes are substantially similar so that they support an inference that the same person committed both crimes. The two incidents must be so unusual and distinctive as to constitute the perpetrator‘s “signature.” Parker v. State, (1981) Ind., 425 N.E.2d 628; Williams v. State, (1981) Ind., 417 N.E.2d 328.
McGinty positively identified Appellant as the perpetrator of the crimes against him. Moreover, Appellant admitted to the police that McGuire was supposed to follow behind the car he and McGinty were in to provide a “getaway” vehicle. Appellant also admitted that he and McGuire decided to work together to rob Cardwell. The State argues that the following factors were common to both crimes: Appellant was the person who shot McGinty and also was seen around Cardwell just prior to Cardwell being shot; the same gun was used to shoot McGinty as was used to shoot Cardwell; the bullets used in both instances were the same type of odd, flat-shaped bullets called “wod cutters“; and both victims were shot in the left-front side of the chest between the 6th and 7th ribs. Appellant twice told McGinty to move his left arm, appearing to purposely pick the left chest area to shoot McGinty. Of course, shooting Cardwell in precisely the same area one week earlier had proven fatal. We find that these crimes were sufficiently similar to constitute Appellant‘s criminal “signature.” Accordingly, we hold that the trial court properly admitted into evidence proof of the McGinty shooting as this proof tended to establish the identity, motive, and common scheme and plan of the perpetrators involved in the Cardwell murder.
The trial court is in all things affirmed.
GIVAN, C.J., and HUNTER, DeBRULER and PRENTICE, JJ., concur.
Thomas W. Ward, Knox, for appellants.
Frank E. Tolbert, Miller, Tolbert, Wildman, Muehlhausen & Muehlhausen, P.C., Logansport, for appellee.
On October 1, 1977, appellant Hurst was involved in a two-car accident at the intersection of County Roads 700 North and 300 West in Pulaski County. Hurst was driving along County Road 300 West when he stopped for a stop sign at the intersection.
Hurst brought suit against the Pulaski County Board of Commissioners (Board) alleging three theories of recovery. First, he contends that the Board has a duty to remove weeds and growth from along county rights-of-way pursuant to
On appeal Hurst raises four issues:
- whether
Ind.Code § 8-17-14-1 places a duty upon the county to remove weeds and natural growth from along county roadways for the benefit of motorists; - whether the trial court erred in granting the Board‘s motion for summary judgment on the factual issue as to whether the weeds had been cut by the county;
- whether the Board has a common-law duty to remove weeds and natural growth from along county roadways to prevent the obstruction of a motorist‘s view; and
- whether the trial court erred in reopening the Board‘s motion for summary judgment which had been denied and having a hearing on the reopened motion without proper notice to appellant.
When reviewing a grant or denial of summary judgment, this Court must determine: 1) whether there existed any genuine issue of material fact; and 2) whether the trial court correctly applied the law. Perry v. Northern Ind. Pub. Serv. Co. (1982), Ind. App., 433 N.E.2d 44; Wallace v. Indiana Ins. Co. (1981), Ind.App., 428 N.E.2d 1361. The movant has the burden of establishing that no genuine issue of material fact exists and all doubts shall be resolved against him. F.W. Means & Co. v. Carstens (1981), Ind. App., 428 N.E.2d 251; Smith v. P. & B. Corp. (1979), Ind. App., 386 N.E.2d 1232.
Hurst argues that the trial court misconstrued
In support of his argument appellant refers us to
This Court respectfully suggests that the Seventh Circuit Court of Appeals erred in its application of basic tort law principles. In order for a person to be liable for another‘s injury due to his acts, he must owe that person some duty of care. Regardless of causation liability arises out of duty. Edler, Receiver v. Rutledge, Admx. (1940), 217 Ind. 459, 27 N.E.2d 358; Crouch v. Hall (1980), Ind. App., 406 N.E.2d 303.
Under
Further support for this construction may be found in the code.
Further, the statutory period prescribed in
Appellant next contends that summary judgment was improper on the factual issue of whether the county had cut the weeds. A resolution of this issue is unnecessary in terms of the duty owed appellant under the statute since he was not owed any duty. However, a discussion of this question is relevant to any common-law duty the county may have to clear growth from along the roadway for the benefit of motorists.
In its memorandum of opinion the trial court set out its support for summary judgment on factual grounds as follows:
“[T]he Court does believe that the statute 8-17-14-1 does place a duty upon the Commissioners and specifies how that duty may be met. The Court is convinced that the only evidence relating to the County‘s performance of its mowing obligation clearly shows that the road was mowed and that the County fulfilled its duty.”
Record at 440.
The evidence upon which the trial court‘s decision is based consists of testimony, in the form of two affidavits, of Arthur Snider, Highway Superintendent of Pulaski County. In these affidavits Snider states that the weeds along County Roads 300 West and 700 North were mowed during the statutory period. However, Snider also makes the further statement:
“The intersection of CR 300 W & 700 N was mowed once in 1977. I do not know when it was mowed that year.... I can‘t really say for sure if 300 W and 700 N were mowed in 1977. There would be no way of telling. We did not keep a chart or record of which roads had been mowed that year. I think 300 W was probably mowed that year, because it is the first black top road going all the way north from highway 14. I never knew or seen a chart or record of what roads had been cut or mowed in this year, prior years or later years.”
Record at 125A-126.
Statements in an affidavit must be based upon personal knowledge in order to be admissible. Coghill v. Badger (1982), Ind.App., 430 N.E.2d 405; Whitaker v. St. Joseph‘s Hospital (1981), Ind.App., 415 N.E.2d 737; Podgorny v. Great Central Ins. Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640. The court should disregard inadmissible statements when determining whether to grant or deny a summary judgment. Cunningham v. Associates Cap. Ser. Corp. (1981), Ind.App., 421 N.E.2d 681; Pathman Const. Co., etc. v. Drum-Co Engin. (1980), Ind.App., 402 N.E.2d 1.
In his affidavit Snider first states that he knows the weeds at issue were cut; he then goes on to admit he has no way of personally knowing whether the weeds were cut. Allowing such testimony to serve as the basis for summary judgment would contravene the purpose of
At the hearing appellant also forwarded the theory that the county had a common-law duty to remove obstructing growth from along roadways for the benefit of motorists. He contends the county failed to perform this duty and consequently maintained an inherently dangerous intersection causing the accident and his injury. The trial court did not agree and granted summary judgment for the Board on this issue also.
One of the bases for the court‘s grant of summary judgment was its determination that
Many Indiana cases discuss the state‘s duty to maintain its highway system. The state has the burden of constructing, maintaining, and repairing its highways so they are reasonably safe for use by motorists. State v. Ingram (1981), Ind., 427 N.E.2d 444; State v. Bouras (1981), Ind. App., 423 N.E.2d 741; State v. Thompson (1979), Ind.App., 385 N.E.2d 198; Indiana State Highway Com‘n v. Clark (1978), Ind. App., 371 N.E.2d 1323; Elliott, Admx. v. State (1976), 168 Ind. App. 210, 342 N.E.2d 674. These cases have established the state‘s liability for a variety of reasons including: faulty construction, design, or maintenance of curved sections of roadway; insufficient drainage of water from roadside ditches; and insufficient maintenance of intersections. Likewise counties and municipalities have the same duty of care over their roads within their jurisdiction and control. City of Indianapolis v. Swanson (1982), Ind.App., 436 N.E.2d 1179; Yater v. Keil et al. (1976), 170 Ind.App. 135, 351 N.E.2d 920; Bd. of Comm‘rs v. Briggs (1975), 167 Ind.App. 96, 337 N.E.2d 852; Davis v. Bd. of Commr‘s Monroe Co. (1971), 149 Ind.App. 451, 273 N.E.2d 551.
The Board argues that the county has no duty to remove vegetation from along its roadways. It points to the absence of any statutory provision or case law creating such a duty. However, this Court notes that prior to the above-cited cases there was no duty to perform any of the specific actions complained of in those cases.
In the extant case the court had before it the testimony of Hurst who stated his view was obstructed by weeds along the side of the road. Also before the court was the testimony of Sheriff Riley who stated that the weeds would not obstruct the view of a motorist. This testimony clearly presents a factual question to be determined by a jury. Further, the issue of whether part of the county‘s duty of maintaining reasonably safe roads includes mowing weeds along the road is a question upon which reasonable minds might differ and therefore properly a matter for a jury. Indiana State Highway Com‘n v. Clark, supra; Yater v. Keil, supra; Elliott v. State, supra. Also, a jury should be allowed to determine whether the county knew or should have known that the weeds were a problem, a prerequisite to liability. Bd. of Comm‘rs v. Briggs, supra. Therefore, the trial court improperly granted summary judgment on the issue of the county‘s common-law duty to remove weeds from along the county roads.
In light of the Court‘s decision on the foregoing issues, a resolution of appellant‘s final issue is rendered unnecessary. For the reasons stated above the decision of the trial court is reversed and remanded for a new trial consistent with this opinion.
Reversed and remanded.
GARRARD and STATON, JJ., concur in result with opinion.
GARRARD, Judge, concurring in result.
I agree that
STATON, Judge, concurring in result.
I concur in result but for different reasons than Judge Garrard. First, I do not think that it is accurate to conclude, as Judge Hoffman does in his opinion, that “In the Johnson case the Seventh Circuit Court of Appeals held a similar statute imposed such a duty on railroads for the benefit of surrounding landowners.” What the Seventh Circuit actually held in Johnson was that even if the duty created by the statute was so limited, the instruction given at trial removed any argument regarding the possibility of such limitation. Its actual holding was as follows:
“Finally B & O objects to an instruction that a violation of Indiana‘s weed-cutting statute, Burns’ Ind.Stats. Annot. -Code Ed. 8-3-7-1 [55-3512] (1973), constitutes evidence of negligence. The statute requires the cutting and destruction of ‘noxious weeds’ growing on railroad property between July 1 to July 20 of each year. We find no harm in the instruction. While the statute may well have been primarily aimed at the spread of weeds and brush to contiguous land, the instruction required a finding not only that B & O had violated the statute but also that such violation appreciably contributed to Johnson‘s injuries. This removed any possible objection to the court‘s action in this regard.” (My emphasis.)
Johnson v. Baltimore & O.R. Co. (7th Cir. 1976), 528 F.2d 1313, at 1316.
Secondly, Judge Hoffman‘s conclusion that ”
“The statute, as originally enacted in 1891, specifically covered the cutting of hedge or other live fences. In 1891 visibility concerns were primarily focused upon the visibility of horses. In 1921 the statute was extended to cover ‘other obstructions’ and in 1933 ‘other natural growth.’ No changes were made concerning the height requirement. In addition, I.C. 32-10-5-1 limits partition fences to ‘a height of not to exceed five feet‘. A fence of two feet or less would defeat the purpose of a fence. Therefore, to accept plaintiff‘s meaning would require elimination of live fences if they obstructed the view. If this were the legislative intent, they would have so stated. The language, used in its ordinary sense and consistent with other sections, indicates nothing more than a duty to cut any offending growth to five feet. The statute does not impose a duty to cut below five feet if necessary to open the view.”
If we follow Judge Young‘s analysis of the statute, there is no need to find a comparable statute for county highways as suggested by Judge Hoffman in his opinion.
I agree that whether the county has a common law duty to reasonably maintain safe roads for motorists is a question of law and not a question of fact for the jury. Walters v. Kellam & Foley (1977), 172 Ind. App. 207, 360 N.E.2d 199, 205. As Judge Sullivan points out in Walters:
“If a duty exists as a matter of law, it is generally within the province of the jury to determine whether under the precise facts of the case, the defendant‘s conduct measured up to the legal standard of care required by the relationship.”