360 N.E.2d 199 (Ind.App. 2 Dist. 1977), 2--373A64, Walters v. Kellam and Foley

Docket Nº:2--373A64.
Citation:360 N.E.2d 199, 172 Ind.App. 207
Party Name:Donald M. WALTERS and Jessie I. Walters, Appellants (Plaintiffs below), v. KELLAM & FOLEY et al., Appellees (Defendants below).
Case Date:February 17, 1977
Court:Court of Appeals of Indiana

Page 199

360 N.E.2d 199 (Ind.App. 2 Dist. 1977)

172 Ind.App. 207

Donald M. WALTERS and Jessie I. Walters, Appellants (Plaintiffs below),

v.

KELLAM & FOLEY et al., Appellees (Defendants below).

No. 2--373A64.

Court of Appeals of Indiana, Second District.

February 17, 1977

Rehearing Denied March 23, 1977.

Page 200

[Copyrighted Material Omitted]

Page 201

[Copyrighted Material Omitted]

Page 202

[172 Ind.App. 208] Charles S. Gleason, Gleason, Woods & Johnson, Indianapolis, for appellants.

Erle A. Kightlinger, Howard J. DeTrude, Jr., Donald Dawson, Kightlinger, Young, Gray & DeTrude, Indianapolis, for Modine Mfg. Co., and Fink & Kress.

Hugh Watson, Locke, Reynolds, Boyd & Weisell, for Kellam & Foley and Mussett, Nicholas & Stevenson, Inc.

John A. Young, John D. Cochran, Jr., Rocap, Rocap, Reese & Young, Indianapolis, for Burton Plumbing-Heating Co., Inc.

Jim A. O'Neal, James R. Fisher, Ice, Miller, Donadio & Ryan, Indianapolis, for Glenroy Const. Co., Inc.

SULLIVAN, Judge.

Donald Walters, a sheetmetal worker, was injured on May 28, 1969, while he was installing certain duct work above a heating and ventilating unit in a gymnasium building. He was positioned on top of the unit and, in the course of his work, dropped a tool, which fell into the unit, coming to rest on the bottom panel. To retrieve the tool, [172 Ind.App. 209] Walters lowered himself into the unit, placing his feet on the same bottom panel. The panel broke loose, and he fell some thirty feet to the concrete floor below. As a result, he sustained serious injuries.

Walters and his wife, Jessie (Walters) 1 filed suit for damages.

Walters appeals from a summary judgment in favor of Glenroy Construction Co., Inc. (Glenroy), the general construction contractor. Walters also appeals from judgments on the evidence in favor of the other defendant-appellees, Kellam & Foley, the architect; Mussett, Nicholas & Stevenson, Inc. (Mussett), the mechanical engineer; Burton Plumbing-Heating Co., Inc. (Burton), the mechanical contractor; Modine Manufacturing Co., (Modine), the heating and ventilating unit manufacturer; and Fink and Kress, the supplier of the Modine equipment.

Facts which are are important pertain to the manner in which Walters' work was conducted. Scaffolding was available in the immediate area where he worked. However, it was used by the sheetmetal workers on this job, not as a protective device to prevent or obstruct falls, nor as a stable work location, but as a ladder to reach the top of the unit. Because the work took place at a height exceeding thirty

Page 203

feet, statutory provisions requiring scaffolding or staging are relevant and are hereinafter discussed. (See footnote 2, infra). In addition, testimony revealed that Walters and at least one other sheetmetal worker on this job had previously stepped down into the unit onto the bottom panel in the course of accomplishing their work. Whether such conduct was the customary practice in the sheetmetal trade and the admissibility of such evidence were points of controversy during trial and are at issue here.

The contractual arrangements by which the various defendants undertook the project are as follows: The Fayette [172 Ind.App. 210] County School Corporation (Owner) and the Fayette County School Building Corporation contracted with architect, Kellam & Foley, to provide planning and architectural services for the development of a new high school complex. Kellam & Foley, in turn, subcontracted with Mussett for the engineering and design of the mechanical phases of the construction. The Owner contracted separately with Glenroy for general construction services and with Burton for mechanical construction services. Walters' employer, Brad Snodgrass, Inc. (third party defendant impleaded by Burton and severed from this litigation pursuant to a motion for separate trial), was engaged by Burton to install duct work and to assist in the installation of the Modine manufactured heating and ventilating units, supplied by Fink & Kress.

Walters and his wife brought suit alleging common law negligence against all defendants; strict tort liability against the manufacturer, Modine, and the supplier, Fink & Kress; and statutory negligence 2 against the contractors, Glenroy and Burton; the architect, Kellam & Foley, and the engineer, Mussett.

Prior to trial, the trial court granted Glenroy's motion for summary judgment pursuant to Ind. Rules of Procedure, Trial Rule 56. During the jury trial, after presentation of plaintiff's case, all remaining defendants moved for judgment on the evidence pursuant to Ind. Rules of Procedure, Trial [172 Ind.App. 211] Rule 50, and the trial court sustained all such motions. Walters asserts that these rulings are erroneous, and, in addition, challenges the exclusion of several offers of testimony from various witnesses. 3

We affirm the summary judgment for Glenroy and affirm the judgment on the evidence as to Kellam & Foley and as to Mussett. We reverse the judgments on the evidence as to all remaining defendants.

Our attention is directed first to the allegation that the trial court erred in granting summary judgment in favor of Glenroy, the construction contractor.

I.

SUMMARY JUDGMENT FOR GLENROY WAS NOT ERRONEOUSLY GRANTED

The question before us is whether there existed any genuine issue of material fact as to Glenroy.

In his complaint, Walters alleged negligence against Glenroy for failure (1) to

Page 204

supply or cause to be supplied a unit which would safely hold Walters' body weight; (2) to inspect and reject any faulty units, or alternatively, to warn of hidden dangers; and (3) to construct safety scaffolding, required by the Dangerous Occupation Act, supra.

Glenroy, in moving for summary judgment, asserted that no genuine issue of material fact existed because the school construction was done in accordance with three prime contracts: a construction contract with Glenroy; a mechanical contract with Burton; and an electrical contract with B & B Electric Company. Glenroy further asserted that each prime contractor was fully responsible for the conduct of the work to be performed under its individual contract with the Owner, and that therefore, Glenroy had no responsibility or authority with respect to the mechanical installation of the heating [172 Ind.App. 212] units or any work performed relative thereto. On the other hand, plaintiff had asserted in his complaint that Glenroy, being the 'general construction contractor,' was the 'supervising' or 'general' contractor. Plaintiff later argued in his brief in opposition to the summary judgment and in his appeal brief that although Glenroy was one of three prime contractors, Glenroy should be held liable because it was somehow co-operating with, acquiescing in, or mutually interested in the overall construction project and therefore had a right to control the conduct of the duct work installation.

The contract between Glenroy and the Owner is not of record, nor did either party to this motion for summary judgment attempt to make it a part of the record. Consequently, the duties assigned to Glenroy by the Owner were then and are now a matter of pure conjecture. However, Walters would urge that the contract between Burton, the mechanical contractor, and the Owner permits the inference that Glenroy had on-site inspection duties as well as the responsibility for overseeing all construction work. The Burton contract, however, contains no mention of Glenroy. Its terms are largely those of the American Institute of Architect's standard form contract. The overriding emphases go to the duties of that 'contractor,' i.e. Burton. The only references made to 'general contractor' must be construed in context with the substance and purpose of the Burton contract. In that light, the 'general contractor' references undoubtedly pertain to Burton itself and are interchangeable with the use of the term 'contractor' to describe Burton. This assessment is fortified by the fact that all references to 'general contractor' are pre-printed in the form contract. Furthermore, we do not view that a genuine issue of fact concerning liability flowing from a duty of control or supervision may be found to exist as drawn from a contract to which Glenroy was not a party. Nor can we draw from the Burton contract, factual inferences concerning the actual circumstances on the construction site. What the Burton contract[172 Ind.App. 213] evinces is that Burton, in any event, was an autonomous contractor charged with substantial responsibility and control over the mechanical work. In addition, there is nothing of record which would controvert the documentation that the contractual chain of authority for mechanical work flowed from Owner to Burton to Snodgrass, for whom Walters worked.

Trial Rule 56(E) demands:

'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' (Emphasis supplied) TR. 56(E).

Walters relied in large measure upon the allegation that Glenroy somehow asserted control or had a controlling interest by virtue of circumstances arising outside the contractual framework. Yet, he set forth no specific facts by way of affidavits, alternative documents or filings that would put into issue the otherwise undisputed fact that the worksite conduct of plaintiff's

Page 205

work proceeded under the authority of another self-governing prime contractor, Burton. 4

The Burton contract established...

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53 practice notes
  • 413 N.E.2d 1054 (Ind.App. 1 Dist. 1980), 2-580A151, Campbell v. Eli Lilly and Co.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 de Dezembro de 1980
    ...Lumber Co. v. Zinn, (1980) Ind.App., 406 N.E.2d 310; Lee v. Weston, supra; Walters v. Kellam & Foley, (1977) 172 Ind.App. 205, 360 N.E.2d 199, trans. den. Indiana Rules of Procedure, Trial Rule 56(E) provides in part: "When a motion for summary judgment is made and supported as pro......
  • 436 N.E.2d 1138 (Ind.App. 3 Dist. 1982), 3-781A181, Jones v. City of Logansport
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 de Junho de 1982
    ...must determine as a matter of law if a legal relationship exists from which a duty of care arises. Walters v. Kellam & Foley (1977), 172 Ind.App. 207, 360 N.E.2d 199, 205 (trans. denied ). Williams could have a duty of care imposed upon it either (a) by contract or (b) by voluntarily as......
  • 590 N.E.2d 1067 (Ind.App. 3 Dist. 1992), 56A03-9009-CV-418, Northern Indiana Public Service Co. v. East Chicago Sanitary Dist.
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 de Janeiro de 1992
    ...to assume responsibility for the safety of persons lawfully on the construction site." Walters v. Kellam & Foley (1977), 172 Ind.App. 207, 360 N.E.2d 199, 207. We find that Engineer was not a prime contractor as it is defined by the statute and therefore no statutory duties relativ......
  • 696 N.E.2d 442 (Ind.App. 1998), 08A02-9709-CV-604, Creasy v. Rusk
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 de Junho de 1998
    ...depending upon the nature of the duty owed and the surrounding circumstances." Walters v. Kellam & Foley (1977) 2d Dist., 172 Ind.App. 207, 360 N.E.2d 199, 214. In short, the duty is that of reasonable care under the circumstances. That duty never changes. It always exists although......
  • Free signup to view additional results
52 cases
  • 413 N.E.2d 1054 (Ind.App. 1 Dist. 1980), 2-580A151, Campbell v. Eli Lilly and Co.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 de Dezembro de 1980
    ...Lumber Co. v. Zinn, (1980) Ind.App., 406 N.E.2d 310; Lee v. Weston, supra; Walters v. Kellam & Foley, (1977) 172 Ind.App. 205, 360 N.E.2d 199, trans. den. Indiana Rules of Procedure, Trial Rule 56(E) provides in part: "When a motion for summary judgment is made and supported as pro......
  • 436 N.E.2d 1138 (Ind.App. 3 Dist. 1982), 3-781A181, Jones v. City of Logansport
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 de Junho de 1982
    ...must determine as a matter of law if a legal relationship exists from which a duty of care arises. Walters v. Kellam & Foley (1977), 172 Ind.App. 207, 360 N.E.2d 199, 205 (trans. denied ). Williams could have a duty of care imposed upon it either (a) by contract or (b) by voluntarily as......
  • 590 N.E.2d 1067 (Ind.App. 3 Dist. 1992), 56A03-9009-CV-418, Northern Indiana Public Service Co. v. East Chicago Sanitary Dist.
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 de Janeiro de 1992
    ...to assume responsibility for the safety of persons lawfully on the construction site." Walters v. Kellam & Foley (1977), 172 Ind.App. 207, 360 N.E.2d 199, 207. We find that Engineer was not a prime contractor as it is defined by the statute and therefore no statutory duties relativ......
  • 696 N.E.2d 442 (Ind.App. 1998), 08A02-9709-CV-604, Creasy v. Rusk
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 de Junho de 1998
    ...depending upon the nature of the duty owed and the surrounding circumstances." Walters v. Kellam & Foley (1977) 2d Dist., 172 Ind.App. 207, 360 N.E.2d 199, 214. In short, the duty is that of reasonable care under the circumstances. That duty never changes. It always exists although......
  • Free signup to view additional results
1 books & journal articles
  • Who pays the price of computer software failure?
    • United States
    • Rutgers Computer & Technology Law Journal Vol. 24 Nbr. 2, June 1998
    • 22 de Junho de 1998
    ...may be held liable for negligence if he constructs an unsafe structure and someone is injured). But cf. Walters v. Kellam & Foley, 360 N.E.2d 199, 210 (Ind. App. 1977) (declining to find that an architect or engineer had a legal duty to an employee that was injured while stepping onto a......