On rehearing, judges find investigator’s photos admissible

The Indiana Court of Appeals granted rehearing to a case involving a lawsuit brought by a man injured by a sheriff deputy’s vehicle while he walked along the side of the road. The divided court held certain evidence, including an investigator’s affidavit and photos, are admissible at trial.

In May, the Court of Appeals ruled 2-1 that Charles Hill may pursue his negligence claim against the city of Indianapolis and other defendants as a result of the accident. In November 2011, Hill and his daughter Macey were walking home from a nearby park in Indianapolis when he was hit by the vehicle. There are no sidewalks on the road the two were walking along, and they walked with their backs to traffic because they were on the side their home was located.

The trial court granted summary judgment to the defendants, but the majority on the Court of Appeals held that Hill’s contributory negligence was an issue to be decided by a trier of fact and not as a matter of law.

The judges granted rehearing to clarify the original decision. Judges Paul Mathias and James Kirsch concluded that Hill’s designated evidence of investigator Bill Senefeld’s affidavit and photographs are admissible at the trial. The city defendants argued they are inadmissible and the trial court granted summary judgment without ruling on the motion to strike evidence. The defendants claimed that because Senefeld didn’t visit and photograph the accident scene until nearly four years later, the photos are irrelevant and prejudicial.

“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,” Mathias wrote. “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 that would be helpful to a jury and thus is relevant under Indiana Evidence Rule 401.”

The majority also clarified that the obstruction in the road Hill testified about was a tree.

Judge Elaine Brown dissented, just as she did in the original opinion, because she would affirm the trial court.

The case is Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill, a minor, et al. v. Erich E. Gephart, et al., 49A02-1509-CT-1288.