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FOR PUBLICATION

ATTORNEY FOR APPELLANTS: JOHN R. HELM Schreckengast, Helm & Cueller Indianapolis, Indiana

ATTORNEY FOR APPELLEE INDIANAPOLIS POWER & LIGHT COMPANY: PHILIP LINNEMEIER Indianapolis, Indiana ATTORNEY FOR APPELLEES MARION COUNTY COMMISSIONERS and MARION COUNTY: LAKSHMI HASANADKA Office of Corporation Counsel Indianapolis, Indiana ATTORNEYS FOR APPELLEE INDIANA BELL TELEPHONE COMPANY, INC.: WAYNE C. TURNER KENNETH J. MUNSON CARL A. HAYES McTurnan & Turner Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SUSAN J. CARTER, Personal Representative of the Estate of Adam C. Jacobs, and SUSAN J. CARTER, Individually, ) ) ) ) Appellants-Plaintiffs, ) ) vs. ) ) INDIANAPOLIS POWER & LIGHT COMPANY, ) MARION COUNTY COMMISSIONERS, ) COUNTY OF MARION, STATE OF INDIANA, )

No. 49A02-0502-CV-90

HONDA MOTOR COMPANY, AMERICAN ) HONDA MOTOR COMPANY, INC., HONDA OF ) AMERICA MANUFACTURING, INC., ) INDIANA BELL TELEPHONE COMPANY, INC.,) AMERITECH and AMERITECH INDIANA, ) ) Appellees-Defendants. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Cale J. Bradford, Judge Cause No. 49D01-0107-CT-1157

November 10, 2005

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary Susan J. Carter, individually and as personal representative of the estate of her son, Adam C. Jacobs, 1 appeals the trial court's grant of summary judgment in favor of Indianapolis Power & Light Company ("IPL"), Indiana Bell Telephone Company, Inc. ("Indiana Bell") 2 (collectively, "the Utilities"), Marion County Commissioners, and County of Marion, State of Indiana (collectively, "the County"). We affirm. Issues Carter presents six issues, which we consolidate and restate as follows:

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For the sake of convenience, we refer to Carter in the singular throughout this opinion. Indiana Bell is also known as Ameritech and Ameritech Indiana.

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I.

Whether Carter has waived review of her contention that the trial court improperly granted the Utilities' motion to strike certain portions of her designated evidence; Whether the trial court erred in granting summary judgment in favor of the Utilities; and Whether the trial court erred in granting summary judgment in favor of the County. Facts and Procedural History 3

II.

III.

The relevant facts most favorable to Carter, the non-moving party, indicate that on the afternoon of June 18, 1999, seventeen-year-old Jacobs and his seventeen-year-old friend, David Messer, made the acquaintance of seventeen-year-old waitress Sarah Mitchell at a pizza restaurant in Indianapolis. Jacobs and Messer returned to the restaurant when Mitchell's shift ended at midnight, and the trio went to Messer's home. At approximately 2:30 a.m., Mitchell drove Jacobs and Messer toward a restaurant on Emerson Avenue in her Honda Accord. Mitchell drove north on Franklin Road and turned west on Edgewood Avenue, a straight two-lane thoroughfare with a speed limit of forty miles per hour. Jacobs was in the front seat, and Messer was in the back seat. None of the teens wore seatbelts. Jacobs suggested that they "jump the hills" on Edgewood Avenue, which he had done at least twenty times before. Appellant's App. at 143, 159.4 Mitchell accelerated to approximately sixty miles per hour and jumped several hills. She then accelerated to
We heard oral argument in this case on October 11, 2005. We thank counsel for their helpful presentations. In his deposition, Messer acknowledged that "some of those times" Jacobs was driving the car. Appellant's App. at 159. In her deposition, Carter stated that Jacobs did not have a driver's license, did not drive, and had not driven on Edgewood Avenue that she was "aware of[.]" Id. at 423. We note, however, that Messer testified that Jacobs lived with him during the year prior to the accident. Id. at 135.
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approximately eighty miles per hour before jumping "the big hill" near the intersection of Edgewood and Emerson Avenues. Id. at 143. Messer fastened his seatbelt. The car crested the hill, went airborne for a considerable distance, and landed in the middle of the road. Mitchell lost control of the car and oversteered to the right. The car sideswiped an Indiana Bell utility pole and spun clockwise several times. The car then slammed broadside into an IPL utility pole and caught fire. Messer escaped from the wreckage but was unable to rescue the unconscious Mitchell and Jacobs, both of whom died. 5 Carter reached a settlement with Mitchell's representative. On June 19, 2001, Carter filed an amended wrongful death complaint against the Utilities, the County, and several Honda defendants. 6 Carter alleged, inter alia, that the Utilities had "negligently placed, installed, and maintained" the utility poles.7 The Indiana Bell pole (also known as "pole 65") was originally installed in 1978 and was replaced in June 1998 after being struck by an unknown vehicle. Id. at 553, 588. The center of pole 65 was located approximately fifteen inches south of the northern boundary of Edgewood Avenue's twenty-five-foot right-of-way as indicated by the Index of Roads (1822-1879) in the Marion County Surveyor's Office. Id.

An autopsy revealed traces of cocaine and THC in Mitchell's body. There is no evidence that Jacobs or Messer knew that Mitchell had ingested these substances or that Mitchell's driving was impaired as a result thereof. The trial court granted summary judgment in favor of the Honda defendants in 2003. Carter did not appeal that ruling. In his deposition, Messer testified that the poles were located "[a] foot at the most" from the edge of the roadway. Appellant's App. at 453. In an affidavit designated by Carter in response to the Utilities' summary judgment motion, civil engineer Roger Park stated that in June 2002 he "determined that the utility poles [in that area] were between thirty inches and forty three inches from the edge of the roadway[.]" Id. at 640.
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at 203. 8 The IPL pole (also known as "pole 66") was installed in August 1998, and its center was located approximately four inches to the north of the right-of-way, i.e., on private property. Id. at 345, 203. Carter also alleged that the County had "negligently maintained, constructed, designed, and signed the section of roadway upon which the aforementioned accident occurred." Id. at 106. On September 3, 2004, the Utilities and the County filed two separate motions for summary judgment. The Utilities asserted that they were entitled to summary judgment on the issues of duty, breach, and proximate cause. The County asserted that it was entitled to summary judgment on the issues of duty, proximate cause, contributory negligence, and assumption of risk. On December 3, 2004, Carter filed a brief in opposition and designated evidence in support thereof. On December 28, 2004, the Utilities filed a motion to strike certain evidence designated by Carter. On January 3, 2005, Carter filed a response thereto. After a hearing on that date, the trial court granted the Utilities' motion to strike in part and denied it in part. The next day, the trial court held a hearing on the motions for summary judgment. On January 7, 2005, the trial court granted both motions. Carter now appeals.
Carter relies on the Official Thoroughfare Plan for Marion County in asserting that Edgewood Avenue's right-of-way is fifty feet. Appellant's Br. at 16. The trial court disregarded that document pursuant to the Utilities' motion to strike. Carter also asserts that Indiana Code Section 8-20-1-15 "declares that county highway right-of-way may not be less than twenty (20) feet on each side of the centerline." Id. The Utilities point out that the statute applies to the design of new roads. See Ind. Code

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