What is “contributory negligence” relating to “Tar-snake” on the highway?
In the Brackemyre case, the motorcycle rider argued that he had “had no issues negotiating the roadway until his motorcycle encountered the ‘tar-snake,’ regardless of his speed or direction of travel.” Brackemyre also argued that the designated evidence, including the publications which he had requested be judicially noticed, showed that the sealant used in the roadway “is dangerous to the motoring public, especially to motorcycle operators, and the State knew the same.” The publications provided, generally, that “tar snakes” create traction issues for motorcyclists and that Indiana state officials had been informed of motorcyclists’ complaints regarding the matter. Nonetheless, that State of Indiana filed a motion for summary judgement claiming that Brackemyre was contributory at-fault for causing the collision. It should be noted that contributory negligence on the part of a plaintiff provides a complete defense to liability for the defendants and other government actors who fall within the scope of the Indiana Torts Claim Act.
In response to a motion for summary judgment filed by the State of Indiana, Brackemyre designated evidence which he claimed established that he had ridden motorcycles for 50 years prior to the incident and that, before the incident, he had seen the motorcycle in front of him “slide” and “fish-tail” due to what he believed to be “tar snakes” on the roadway, prompting Brackemyre to try to “avoid wrecking on the asphalt” by moving his motorcycle off of the roadway. Brackemyre also claims that his designated evidence established that he had been “in control of the motorcycle when it left the roadway.” Brackemyre’s designated evidence also indicated that “[t]ar snakes are oil on the road. It was hot and sunny that day. Those tar snakes, the sun had softened them up, and that basically turns to oil[.]” Construing all factual inferences in favor of Brackemyre, the Indiana Court of Appeals concluded that Brackemyre’s designated evidence was sufficient to create a genuine issue of material fact on the question of whether he had been contributorily negligent when the incident occurred.