Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Christopher R. Blackburn

David A. Singleton

Blackburn & Green

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES

J. Blake Hike

Michael C. Ross

Carson Boxberger LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kimberly Flueckiger and 

Mark Flueckiger,

Appellants-Petitioners,

v.

Maurice Englehardt, 

The City of Bluffton, and 

Indiana Department of 

Transportation d/b/a INDOT,

Appellees-Respondents.

December 22, 2017

Court of Appeals Case No.

90A02-1707-CT-1520

Appeal from the Wells Circuit 

Court

The Honorable Kenton W. 

Kiracofe, Judge

Trial Court Cause No.

90C01-1507-CT-10

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 90A02-1707-CT-1520 | December 22, 2017 Page 2 of 7

Case Summary and Issue

[1] Kimberly and Mark Flueckiger (the “Flueckigers”) appeal the trial court’s entry 

of summary judgment in favor of the City of Bluffton. The Flueckigers raise 

one issue for our review: whether the trial court erred in entering summary 

judgment in favor of the City of Bluffton. Concluding the trial court did not err, 

we affirm.

Facts and Procedural History 

[2] Indiana State Road 1 is a thoroughfare that passes through Bluffton, Indiana. 

In Bluffton, State Road 1 has three lanes, a northbound lane, a southbound 

lane, and a center lane. The northbound and southbound lanes are eleven feet 

wide and the center lane is thirteen feet wide. As the road progresses through 

Bluffton, it intersects with Townley Street, which travels east and west. Near 

this intersection, the City of Bluffton placed a two and one-half foot wide

triangular “A-Frame” sign (“Sign”) to warn drivers of a sinkhole that developed

near a street drain. The City of Bluffton placed the Sign in the northbound lane 

and against the curb to alert drivers to navigate around the sinkhole.

[3] On June 17, 2014, a warm and sunny day, Maurice Englehardt traveled north 

on State Road 1 into Bluffton. Englehardt had driven on State Road 1 on prior 

occasions, and, on this occasion observed the Sign as he approached from two 

blocks away. Englehardt testified the Sign was located in the middle of the 

northbound lane on this occasion. There was no traffic in front of Englehardt 
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and he was traveling approximately 25 miles per hour as he approached the

Sign. Despite his prior knowledge of the Sign, Englehardt diverted his eyes 

from the road when he was about fifty feet away from the Sign in order to 

reposition a towel he was sitting on. As he looked back up at the road, he 

simultaneously began to merge into the center lane of State Road 1 to bypass 

the Sign and reached down with his right hand to reposition the towel. Then, 

for reasons he cannot recall, Englehardt’s vehicle entered into the southbound 

lane and struck Kimberly Flueckiger’s vehicle.

[4] On July 17, 2015, the Flueckigers filed a complaint against Englehardt and the 

City of Bluffton alleging their negligence caused the accident and the 

Flueckigers’ subsequent injuries. On February 3, 2017, the City of Bluffton 

filed its motion for summary judgment; the Flueckigers’ responded with their 

motion in opposition on May 1, 2017. On June 13, 2017, the trial court entered 

summary judgment in favor of the City of Bluffton determining the City of 

Bluffton’s placement of the Sign did not proximately cause the accident. The 

Flueckigers’ now appeal. Additional facts will be added as necessary.

Discussion and Decision 

[5] Our standard of review for an appeal from a motion for summary judgment is 

well-settled:

When reviewing a grant or denial of a motion for summary 

judgment our well-settled standard of review is the same as it is 

for the trial court: whether there is a genuine issue of material 

fact, and whether the moving party is entitled to judgment as a 
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matter of law. The party moving for summary judgment has the 

burden of making a prima facie showing that there is no genuine 

issue of material fact and that the moving party is entitled to 

judgment as a matter of law. Once these two requirements are 

met by the moving party, the burden then shifts to the nonmoving party to show the existence of a genuine issue by setting 

forth specifically designated facts. Any doubt as to any facts or 

inferences to be drawn therefrom must be resolved in favor of the 

non-moving party. Summary judgment should be granted only if 

the evidence sanctioned by Indiana Trial Rule 56(C) shows there 

is no genuine issue of material fact and that the moving party 

deserves judgment as a matter of law.

Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016) 

(internal quotations omitted).

[6] In order to recover under a theory of negligence, a party is required to establish 

the following: 1) the defendant owed the plaintiffs a duty of care; 2) the 

defendant breached that duty by failing to conform his conduct to the requisite 

standard of care; and 3) the breach was the proximate cause of the plaintiffs’

injuries. Id. The Flueckigers’ theory is the City of Bluffton was negligent in its 

placement of the Sign, and that negligence proximately caused their injuries. 

[7] An act is the proximate cause of another’s injury when the injury is a natural 

and probable consequence of a negligent act which, in the totality of the 

circumstances, could have been reasonably foreseen or anticipated. Straley v. 

Kimberly, 687 N.E.2d 360, 364 (Ind. Ct. App. 1997), trans. denied. To be 

considered the proximate cause of another’s injury, “the negligent act must 

have set in motion a chain of circumstances which in natural and continuous 
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sequence lead to the resulting injury.” Id. But, the intervention of an 

independent, superseding negligent act will relieve the original negligent actor 

of legal liability if that act could not have been reasonably foreseen. Id. 

Although the issue of proximate cause is often determined by the trier of fact, 

where it is clear the injury was not foreseeable under the circumstances and that 

imposing liability upon the original negligent actor would not be justified, the 

determination of proximate cause may be made as a matter of law. Carter v. 

Indianapolis Power & Light Co., 837 N.E.2d 509, 521 (Ind. Ct. App. 2005), trans. 

denied.

[8] In support of their argument that the placement of the Sign was the proximate 

cause of their injuries, the Flueckigers contend it was foreseeable Englehardt 

would swerve to avoid an object placed in the roadway by the City of Bluffton, 

lose control of his car, and crash into another motorist. However, the 

Flueckigers’ analysis ignores the pertinent facts of this specific case. See 

Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. App. 1996) (noting the analysis 

of the foreseeability element of proximate cause focuses on the facts of the 

actual occurrence), trans. denied. The facts most favorable to the Flueckigers 

reveal that June 17, 2014, was a sunny and warm day with no hostile driving 

conditions to confront. State Road 1 is a three-lane road consisting of a 

northbound lane, a southbound lane, and a center lane. As Englehardt 

approached the intersection of State Road 1 and Townley Street, he observed 

the Sign from about two blocks away. Englehardt was also familiar with the 

Sign, having passed it before. However, he testified it was in the middle of the 
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lane that day, rather than adjacent to the curb as it had been before. Englehardt 

had no traffic in front of him and was traveling about 25 miles per hour. As he 

approached the Sign, he diverted his eyes from the road to reposition a towel he 

was sitting on. At the same time, he began to merge to the center lane to bypass 

the Sign. He was about fifty feet away from the Sign when he began to merge. 

Englehardt cannot recall what happened next, but his car collided with 

Flueckiger’s car which was traveling in the southbound lane of State Road 1.

[9] No matter which set of facts regarding the placement of the Sign is accurate, the 

Flueckigers’ injuries are not a foreseeable consequence of the City of Bluffton’s 

actions. Englehardt could have safety maneuvered around the Sign by using 

the center lane and avoided the collision by exercising reasonable care. Thus, 

bypassing the Sign did not require entry into the southbound lane. The City of 

Bluffton was not bound to anticipate a motorist, with prior knowledge of the 

Sign, would observe the Sign from two blocks away and disregard the danger it

posed by attempting to reposition a towel while simultaneously merging into 

the center lane, lose control of his vehicle, and crash into a motorist in the 

southbound lane. The City of Bluffton’s placement of the Sign did not 

proximately cause the Flueckigers’ injuries.

[10] Because the undisputed facts fail to demonstrate the City of Bluffton 

proximately cause the Flueckigers’ injuries, we affirm the trial court’s entry of 

summary judgment in favor of the City of Bluffton.
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Conclusion

[11] We conclude the trial court did not err in granting the City of Bluffton’s motion 

for summary judgment. Accordingly, we affirm.

[12] Affirmed.

Riley, J., and Pyle, J., concur.