443 N.E.2d 1212 (Ind.App. 1 Dist. 1983), 1-881A250, Plan-Tec, Inc. v. Wiggins

Docket Nº1-881A250.
Citation443 N.E.2d 1212
Party NamePLAN-TEC, INC., Defendant-Appellant, v. Ivan WIGGINS and Janice Wiggins, Plaintiffs-Appellees, The Blakley Corporation, Defendant-Appellee, Taylor Brothers Construction Company, Third-Party Defendant-Appellee, Terstep Company, Inc., Third-Party Defendant-Appellee.
Case DateJanuary 11, 1983
CourtCourt of Appeals of Indiana

Page 1212

443 N.E.2d 1212 (Ind.App. 1 Dist. 1983)

PLAN-TEC, INC., Defendant-Appellant,

v.

Ivan WIGGINS and Janice Wiggins, Plaintiffs-Appellees,

The Blakley Corporation, Defendant-Appellee,

Taylor Brothers Construction Company, Third-Party Defendant-Appellee,

Terstep Company, Inc., Third-Party Defendant-Appellee.

No. 1-881A250.

Court of Appeals of Indiana, First District.

January 11, 1983

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James E. Bourne, Richard T. Mullineaux, Orbison O'Connor MacGregor & Mattox, New Albany, for defendant-appellant.

Roger L. Pardieck, David W. Paugh, Montgomery, Elsner & Pardieck, Seymour, for appellees Ivan Wiggins and Janice Wiggins.

Ernest W. Smith, Fox & Smith, Jeffersonville, for appellee The Blakley Corp.

R. Gregory Neely, John A. Cody, Jr., Cody & Cody, New Albany, for appellee Terstep Co., Inc.

RATLIFF, Judge.

STATEMENT OF THE CASE

Defendant Plan-Tec, Inc. appeals from a jury verdict in the Clark Circuit Court awarding plaintiffs Ivan and Janice Wiggins damages for employment-related injuries sustained by Ivan and denying Plan-Tec's crossclaim against the Blakley Corporation and its third-party complaint against the Terstep Company, Inc. 1 We affirm.

FACTS

This case arises from a construction-related injury suffered by the plaintiff Ivan Wiggins and his wife's consequent loss of consortium. Wiggins was employed as a journeyman carpenter by Terstep Company, Inc. Terstep was, in turn, one of a number of subcontractors engaged in providing services for the North Clark Community Hospital project in Charlestown, Indiana. The hospital project was not undertaken according to the traditional general contractor/subcontractor model. Rather, Plan-Tec assumed the role of construction manager and, acting as the hospital's agent, negotiated contracts between the owners and the contractors. As the construction manager, Plan-Tec coordinated the project from inception to completion and was paid a flat fee therefor. The Charlestown job was Plan-Tec's first job as a construction manager.

On the day of the accident Wiggins was to change expansion joints on the exterior skin of the building in order to suit the architect's modifications. Plan-Tec informed the Blakley Corporation of the need to change the expansion joints. Blakley discussed this with both its subcontractors for exterior work, one of which was Terstep. 2 Both said this was not work within the contemplation of their contracts. Plan-Tec then assumed the responsibility for the work order and had it performed by Terstep.

Wiggins and a co-worker, Frank Bratcher, were assigned to complete the job of changing the expansion joints. Both men went to the roof to check the outrigging and counterweighting of the suspended scaffold from which they would be working. While the outrigging was generally counterweighted

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by punching holes in the precast concrete roof and anchoring the scaffold to the building via steel cables run through the holes in the roof, in this case the outrigging was counterweighted by five-gallon buckets of hardened concrete. Bratcher informed Wiggins that the roofers were working in that area and it was, therefore, not possible to drive holes into the roof. He also stated that the buckets had been used before.

After testing the scaffold at ground level, the two men raised the scaffold to the sixth floor where they were to work. As Bratcher went to Wiggins's end of the scaffold to demonstrate the work to be performed, the structure broke loose and fell to the ground below.

Wiggins initiated this action against Plan-Tec, Blakley, Taylor, and Terstep and was awarded $700,000.00 in damages against Plan-Tec for its failure to ensure proper safety on the job. Janice Wiggins was awarded $50,000.00 for loss of consortium. Plan-Tec's third-party claim against Terstep for indemnity was also denied. From this action Plan-Tec now appeals.

ISSUES

Appellant presents fourteen issues for review. Combined and rephrased, the issues are as follows:

1. Did the trial court err in upholding the jury's verdict?

2. Did the trial court err in not granting Plan-Tec's motion for judgment on the evidence at the close of all the evidence?

3. Did the trial court err in giving Terstep's instruction number 10B?

4. Did the trial court err in denying Plan-Tec's motion for continuance?

5. Did the trial court err in giving Wigginses' instructions numbered 2 and 9?

6. Did the trial court err in refusing to give Plan-Tec's tendered instruction number 9?

7. Did the trial court err in refusing to give Plan-Tec's tendered instruction number 5?

8. Did the trial court err in allowing certain testimony of Anthony Rago in contravention of Plan-Tec's motion in limine?

9. Did the trial court err in refusing to permit Plan-Tec relief from Wigginses' motion in limine?

10. Did the trial court err in excluding certain deposition testimony of James Vest?

11. Did the trial court err in permitting Nicholas Hatfield to testify regarding Terstep's inability to negotiate the terms of the general conditions of the contract?

DISCUSSION AND DECISION

Issue One

The trial court did not err in upholding the jury's verdict.

Central to Plan-Tec's argument on appeal is its contention that Plan-Tec owed no duty to Wiggins as a matter of law. Since no duty existed, argues Plan-Tec, the award by the jury was contrary to law and the trial court, therefore, erred in upholding the jury's verdict. Wigginses argue that a duty arose from the contract itself or, in the alternative, that Plan-Tec gratuitously assumed the duty of care for the employees of Terstep and that a breach of such duty gave rise to actionable negligence. We agree with the Wigginses' latter contention.

In reviewing an allegation that a jury verdict is contrary to law, the verdict will be set aside only where it is against the evidence, where there is a total lack of evidence, or where it is contrary to uncontradicted evidence. Sutton v. Roth, Wehrly, Heiny, Inc., (1981) Ind.App., 418 N.E.2d 229, 232, trans. denied. This court will not reweigh evidence or resolve the credibility of witnesses. Riverside Insurance Co. v. Pedigo, (1982) Ind.App., 430 N.E.2d 796, 803. Rather, our inquiry is limited to determining whether the verdict is sustained by substantial evidence of probative value. Id. Further, this court will indulge every reasonable presumption in favor of the correctness of the jury's verdict. Illinois Central Gulf Railroad Co. v. Parks, (1979) Ind.App., 390 N.E.2d 1073, 1074, trans. denied.

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Where the evidence is susceptible to reasonably differing interpretations, the jury's verdict will not be disturbed.

In bringing a negligence action the burden of proving negligence is upon the plaintiff. Hi-Speed Auto Wash, Inc. v. Simeri, (1976) 169 Ind.App. 116, 119, 346 N.E.2d 607, 608. In order to prevail upon an allegation of negligence, the plaintiff's evidence must be sufficient to demonstrate the existence of all the requisite elements of the cause of action. Koroniotis v. LaPorte Transit, Inc., (1979) Ind.App., 397 N.E.2d 656, 659. One of those elements is a duty owed to the plaintiff by the defendant. Bowling v. Holdeman, (1980) Ind.App., 413 N.E.2d 1010, 1014; Koroniotis. Absent such a duty there can be no actionable negligence.

A duty of care, the breach of which will support a negligence action, may arise contractually. See Perry v. Northern Indiana Public Service Co., (1982) Ind.App., 433 N.E.2d 44, 47-48, trans. denied; Cummings v. Hoosier Marine Properties, Inc., (1977) 173 Ind.App. 372, 382-83, 363 N.E.2d 1266, 1273, trans. denied (1978); Jones v. Indianapolis Power & Light Co., (1973) 158 Ind.App. 676, 690, 304 N.E.2d 337, 346, trans. denied (1974). The extent of the duty owed, if any, is a matter of contractual interpretation. In determining whether a duty exists, this court will give effect to the intent of the parties as reflected by the language of the document. English Coal Co., Inc. v. Durcholz, (1981) Ind.App., 422 N.E.2d 302, 308, trans. denied. Where the contract affirmatively evinces an intent on the part of the parties to charge one party with a duty of care, actionable negligence may be predicated upon the contractual duty.

In the instant case, the general conditions of the contract unequivocally state that the contractors are to have the responsibility for project safety and the safety of their employees. 3 Wigginses do not dispute this. Rather, they argue that in negotiating certain contracts, Plan-Tec contractually accepted the duty to maintain safety on the project. We cannot agree.

Initially, the project was to have had a utility contractor who would do general work and also be responsible for safety considerations. 4 Taylor Brothers originally budgeted for the safety aspects of the job. However, these were written out of Taylor Brothers' contract. In fact, no contractor was ever designated as the utility contractor. Wigginses assert that the utility contractor's job was written into Plan-Tec's contract by virtue of the inclusion in Plan-Tec's contract of certain aspects of the utility contractor's job. 5 While Plan-Tec agreed to perform certain aspects of the utility contractor's job which were necessary to the completion of the project, it does not necessarily follow that Plan-Tec, therefore, agreed to perform all aspects of the utility contractor's job. Clearly, certain functions, such as temporary heat, drinking water,

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and toilet facilities were necessary to enable the workers to bring the project to a successful conclusion. Plan-Tec, therefore, contractually accepted...

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