Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 1 of 5

OPINION ON REHEARING

ATTORNEYS FOR APPELLANT

Jason D. May

Law Office of Jason D. May, LLC

Indianapolis, Indiana

Samuel D. Krahulik

The Hastings Law Firm

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Pamela G. Schneeman

Assistant Corporation Counsel

Office of Corporation Counsel

Indianapolis, Indiana

Kevin C. Schiferl

Anthony W. Overholt

Alexander P. Will

Darren A. Craig

Frost Brown Todd LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Barbara Hill, individually and as 

guardian of Charles Hill, 

incapacitated, and as next friend 

of Alexandra Hill, a minor, and 

Macey Hill, a minor, by her next 

friend and mother, Tenise HillCornelius,

Appellant-Plaintiffs,

v.

Erich E. Gephart, City of 

Indianapolis, and Marion 

County Sheriff’s Department,

Appellee-Defendants

July 20, 2016

Court of Appeals Case No.

49A02-1509-CT-1288

Appeal from the Marion Superior 

Court

The Honorable James A. Joven, 

Judge

Trial Court Cause No.

49D13-1204-CT-16235
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 2 of 5

Mathias, Judge.

[1] Appellees Erich E. Gephart, City of Indianapolis, and the Marion County 

Sheriff’s Department (collectively “the Appellees”) petition for rehearing of our 

court’s May 6, 2016 decision, in which we reversed and remanded the trial 

court’s grant of summary judgment in favor of Appellants. Appellees argue that 

no admissible evidence establishes that vegetation prevented Hill from walking 

along the correct side of the roadway and that Hill failed to rebut the 

presumption of negligence raised by his failure to comply with Indiana Code 

section 9-21-17-14. We issue this opinion on rehearing to fully consider 

Appellees’ argument that some of Plaintiff’s designated evidence, such as Bill 

Senefeld’s1 (“Investigator Senefeld”) affidavit and photographs, are 

inadmissible.

[2] Appellee-Defendants filed a motion to strike the Marion County Sheriff’s Office 

Accident Review Board finding and Investigator Senefeld’s affidavit and 

accompanying photographs in the trial court, arguing that they were

inadmissible. However, the trial court granted summary judgment in favor of 

appellee-defendants without ruling on its motion to strike inadmissible 

evidence. When a trial court does not specifically rule on a motion to strike 

affidavits, but grants summary judgment, the motion is impliedly overruled. 

Palmer v. State, 363 N.E.2d 1245, 1248 (Ind. Ct. App. 1977). Therefore, 

 

1 We strike our classification of Investigator Senefeld as an “expert,” as neither party nor the trial court 

designated him as such.
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 3 of 5

Investigator Senefeld’s affidavit and photos were properly designated and 

within our purview to consider on appeal. 

[3] Appellees also argue that Investigator Senefeld never testified that the 

photographs were “true and accurate representations of a scene personally

viewed by that witness.” Specifically, Appellees contend that because

Investigator Senefeld did not visit and photograph the accident scene until three 

and a half years later that he did not have personal knowledge, and thus the 

photos are irrelevant and prejudicial. The trial court has broad discretion in

ruling on the admissibility of evidence. Guzik v. Town of St. John, 875 N.E.2d

258, 265 (Ind. Ct. App. 2007).

[4] “Evidence is relevant if: (a) it has any tendency to make a fact more or less 

probable than it would be without the evidence; and (b) the fact is of 

consequence in determining the action.” Ind. Evidence Rule 401. This often 

includes facts that merely fill in helpful background information for the jury, 

even though they may only be tangentially related to the issues presented. State 

Farm Mut. Auto. Ins. Co. v. Earl, 33 N.E.3d 337, 341 (Ind. 2015). Investigator 

Senefeld did not visit or photograph the accident scene the evening the accident 

occurred. However, he did have personal knowledge of his visit to the accident 

scene as described in his affidavit, along with the photos that he took on May 

27, 2015. These photographs depict the area where the accident occurred, and 

Investigator Senefeld’s affidavit describes the area as he saw it during his 

investigation. This evidence at the very least provides background information 
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 4 of 5

that would be helpful to a jury and thus is relevant under Indiana Evidence 

Rule 401. 

[5] Further, in concluding that genuine issues of material fact precluded the entry 

of summary judgment, we also relied significantly on Charles’s deposition 

testimony which stated:

Q: Now, earlier you told me that you would walk or that you 

knew to walk to face traffic when you were walking. If you were 

walking back to your parents’ house, you would be going from 

the east to go to the west, correct?

A: Yeah. We walked on the opposite side of the street. When 

we went back, it was the same side.

Q: Why did you take the same side?

A: Because a tree was down in the road.

***

Q: I want to ask about this. So that tree that was down was an 

impediment or something that was blocking the way you and 

Macy wanted to walk?

A: Yeah. 

Appellant’s App. pp. 55; 57.
Court of Appeals of Indiana | Opinion on Rehearing 49A02-1509-CT-1288 | July 20, 2016 Page 5 of 5

[6] Although Appellees argue that a tree is not vegetation, a tree is actually 

vegetation.2 In addition, Charles testified that the usual path he would have

taken to walk back home was blocked. For purposes of clarification, this 

obstruction was a tree in the road. We emphasize the more important fact in 

this situation is that the blockage caused Charles and Macey to take a different 

route, not necessarily whether the blockage was caused by a tree or any other 

type of vegetation. Therefore, Charles’s testimony creates a genuine issue of 

material fact as to whether he was contributorily negligent in walking on the 

right side of the road instead of the left side as Indiana Code section 9-21-17-14 

requires. Again, it is Charles’s burden at trial to rebut the presumption that he 

was contributorily negligent and acted reasonably in violating the statute. 

[7] Because Investigator Senefeld’s declaration and photos were admissible and we 

relied on Charles’s testimony to conclude that a genuine issue of material fact 

existed as to his contributory negligence, we grant Appellee’s motion for rehearing for the limited purpose of clarification and affirm our May 6, 2016 

opinion in all other respects. 

Kirsch, J., concurs. 

Brown, J., would grant rehearing for the purpose of affirming the trial court, in

accordance with her dissent expressed in the May 6, 2016 opinion. 

 

2 Vegetation is defined as plants in general; or plants that cover a particular area. See http://www.merriamwebster.com/dictionary/vegetation. A tree is defined as a usually tall plant that has a thick, wooden stem, 

and many large branches. See http://www.merriam-webster.com/dictionary/tree.