Mathias, J.
Barbara Hill, individually and as guardian of Charles Hill (“Charles”), incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill (“Macey”), a minor, by her next friend and mother, Tenise Hill-Cornelius (collectively “the Hills”) filed a complaint in Marion Superior Court against Erich Gephart (“Deputy Gephart”), the City of Indianapolis, and the Marion County Sheriff’s Department (collectively “Defendants”) alleging that Defendants were negligent when a Marion County Sheriff jail transport vehicle driven by Deputy Gephart struck and severely injured Charles. Defendants moved for summary judgment, arguing that Deputy Gephart was not negligent and that Charles was contributorily negligent which was the proximate cause of his own injuries. The trial court granted Defendants’ motion for summary judgment. The Hills now appeal and raise two issues, which we consolidate and restate as whether the trial court erred in granting Defendants’ motion for summary judgment.
We reverse and remand for proceedings consistent with this opinion.
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The Hills argue that the trial court erred in granting Defendants’ motion for summary judgment because Defendants’ affirmative defense that Charles was contributorily negligent should be decided by a trier of fact, not as a matter of law. The Hills concede that Charles violated Indiana Code section 9-21-17-14 when he walked on the right hand side of Fox Hill Drive….
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In its order, the trial court cited to Larkins v. Kohlmeyer for the proposition that it must be impossible to comply with a statute for the violation to be excused. 98 N.E.2d 896, 900 (Ind. 1951). On the basis that it was not impossible for Charles to comply with the statute by instead walking along the left hand side of the road, the trial court granted summary judgment in favor of Defendants.
However, our supreme court in Davison v. Williams established that proof of the violation of a safety regulation creates a rebuttable presumption of negligence. 242 N.E.2d 101, 105 (Ind. 1968). Our supreme court concluded, “As for the question of what will constitute proof sufficient to rebut the presumption of negligence raised by violation of safety regulation, we believe the best test to follow is:
Where a person has disobeyed a statute he may excuse or justify the violation in a civil action for negligence by sustaining the burden of showing that he did what might be reasonably expected by a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.
Id.
While Davison involved the duty of a driver who violated a motor vehicle statute, we see no reason not to extend this holding to motor vehicle statues that impose duties on pedestrians as well. The rights and duties of pedestrians and motorists to use highways are reciprocal and should be exercised by each so as not to injure the other, and motorist owes pedestrians walking along a highway duty to exercise reasonable care to avoid injury. American Carloading Corp. v. Gary Trust & Sav. Bank, 25 N.E.2d 777, 781 (Ind. 1940).
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Because the purpose of Indiana Code section 9-21-17-14 is to promote safety, it is counterintuitive to bar the Hills’s claim without allowing Charles to explain why he was walking on the right side instead of the left side of the road. It is up to the jury to determine whether that act was reasonable or if Charles contributed to his injuries. For all of these reasons, a genuine issue of material fact exists as to whether Charles was contributorily negligent, and the trial court erred by disposing the Hills’ claim on summary judgment. We therefore reverse and remand with instructions for the trial court to hold a jury trial on the matter.
Reversed and remanded for proceedings consistent with this opinion.
Kirsch, J., concurs. Brown, J., dissents with opinion.
Brown, Judge, dissenting.
I respectfully dissent from the majority’s conclusion that a genuine issue of material fact exists as to whether Charles was contributorily negligent and its decision to reverse and remand on the trial court’s entry of summary judgment in favor of the Defendants. Charles walked along Fox Hill Drive in a manner which violated Ind. Code § 9-21-17-14, and there is nothing in the designated evidence to demonstrate he “desired to comply with the law,” which is required in order to rebut the presumption of negligence. See Davison v. Williams, 251 Ind. 448, 457, 242 N.E.2d 101, 105 (1968). Indeed, the designated evidence shows that Charles, in failing to comply with the statute enacted for his safety, did not contravene the statute in a manner which might reasonably be expected of a person of ordinary prudence, but instead walked along the wrong side of the road clad in dark clothing and talking on his cell phone. Under these circumstances, I cannot say that the Hills have rebutted the presumption of negligence, and accordingly I would affirm the trial court’s grant of summary judgment in favor of the Defendants.