Harper v. Guarantee Auto Stores

• Decision Date: 09 February 1989
• Docket Number: No. 41A01-8712-CV-306,41A01-8712-CV-306
• Parties: David H. HARPER, Appellant (Plaintiff Below), v. GUARANTEE AUTO STORES, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1258

533 N.E.2d 1258

David H. HARPER, Appellant (Plaintiff Below), v. GUARANTEE AUTO STORES, Appellee (Defendant Below).

No. 41A01-8712-CV-306.

Court of Appeals of Indiana,

First District.

Feb. 9, 1989.

Tommy L. Strunk, Indianapolis, for appellant.

Peter G. Tamulonis, Donald L. Dawson, John B. Drummy, Robert J. Nice, Kightlinger & Gray, Indianapolis, for appellee.

ROBERTSON, Judge.

David H. Harper appeals a summary judgment entered in favor of defendant, Guarantee Auto Stores (Guarantee). ¹ We reverse because we find genuine issues of material fact.

The facts which the trial court had before it in ruling on the summary judgment show that an employee of Guarantee installed a tire on co-defendant Barbara Hacker's automobile and in so doing removed Hacker's spare tire and transferred it and a jack to the wheel well of Hacker's 1983 Chevette Hatchback Scooter. The wheel well is located in the passenger compartment of that automobile. Approximately three months later, Hacker, driving the Chevette, struck a utility pole head-on. Harper alleges the force of the impact caused the tire and jack to become projectiles and strike Harper who was a passenger in the automobile. He maintains Guarantee's negligent failure to properly secure the tire and jack proximately caused his injuries.

Guarantee argued that its negligence merely created a condition which could not be a proximate cause of Harper's injuries unless Hacker's subsequent intervening conduct was reasonably foreseeable, and the trial court agreed. The court concluded Guarantee could not as a matter of law reasonably foresee that Hacker would run off the road and strike a tree; therefore, Hacker's conduct was an intervening cause which relieved Guarantee of liability.

Our analysis proceeds from the premise that summary judgment is rarely appropriate in negligence actions. ² Ember v. B.F.D., Inc. (1986), Ind.App., 490 N.E.2d 764, 768. Inasmuch as the issue of foreseeability concerns matters of policy often addressed in the analysis of the duty element, we will consider Guarantee's duty, if any, first.

I.

The duty to exercise care for the safety of another arises as a matter of law out of some relationship existing between the parties, and it is the province of the court to determine whether such relation gives rise to a duty. However, factual questions may be interwoven with the determination of the existence of a relation, rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder. Clyde E. Williams & Associates, Inc. v. Boatman (1978), 176 Ind.App. 430, 375 N.E.2d 1138, 1144, trans. denied; see also, Ember, supra.

Contrary to Guarantee's assertions, Indiana law does not preclude liability in tort for personal injury merely because privity is absent. See, Essex v. Ryan (1983), Ind.App., 446 N.E.2d 368. Rather, the law recognizes a party may gratuitously or by contractual undertaking to render services, place himself in such a position that the law will impose upon him a duty to perform his undertaking in a manner which will not jeopardize the safety of others, including third persons. See, e.g. Flint & Walling Mfg. Co. v. Beckett (1906), 167 Ind. 491, 79 N.E. 503; Boatman, supra; Ember, supra.

This court adopted Sec. 324A of the Restatement (Second) of Torts in Baker v. Midland-Ross Corp. (1987), Ind.App., 508 N.E.2d 32. ³ To establish liability under Sec. 324A, Harper must demonstrate that Guarantee engaged in an undertaking to render services, and, either: (1) that the risk of harm to Harper increased due to Guarantee's failure to exercise reasonable care; (2) that Guarantee undertook to perform a duty owed by Hacker to Harper; or, (3) that the harm suffered by Harper was a consequence of Hacker's reliance on services rendered by Guarantee. In addition, Harper must show that Guarantee should have recognized the careful execution of its undertaking was necessary for the protection of Harper. Other jurisdictions view this latter criterion as the traditional requirement of foreseeability. See, e.g. Glick v. Olde Town Lancaster, Inc. (1987), 369 Pa.Super. 419, 535 A.2d 621, allocatur denied 548 A.2d 255.

The uncontradicted evidence shows Hacker entered into a contract with Guarantee for the purchase and installation of a tire. Hacker's spare tire was on the car when she delivered the car to Guarantee. Hacker left the garage while Guarantee mounted the tire, returning later to pick up the car and pay for the service. Guarantee's employee acknowledged he placed both the tire and the jack in the wheel well after the spare tire had been removed. He does not recall whether he secured the tire or jack.

Harper presented evidence of an affirmative act sufficient to create an inference that Guarantee undertook to provide a service which if done with reasonable care would have prevented Harper's injuries, and evidence of two of the three factors listed above. Regardless of whether Guarantee was acting pursuant to the contract, Guarantee's employee set out to assist Hacker by placing the tire and jack in her car. This evidence raises a factual question on the issue of whether Guarantee undertook such a service. Cf. Eichler v. Plitt Theatres, Inc. (1988), 167 Ill.App.3d 685, 118 Ill.Dec. 503, 521 N.E.2d 1196, cert. denied (Company retained to perform snow blowing and snow removal also removed ice although it had no contractual duty to do so, precluding summary judgment.) Similarly, the evidence disclosed that the manufacturer of Hacker's vehicle equipped the wheel well with mechanisms for securing the tire and jack. If Guarantee placed the tire and jack in the wheel well without properly securing them, one could infer Guarantee augmented the risk to Hacker's passengers by creating a new risk, one envisioned by the manufacturer and ordinarily eliminated. See, Restatement, comment c, illustration 1. Harper also showed that Guarantee entered into a contract to perform services within its field of expertise. Some courts have held that by demonstrating such a contract exists, reliance on the undertaking is deemed to exist as a matter of law. See, e.g. Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill.2d 378, 98 Ill.Dec. 1, 493 N.E.2d 1022; Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596. ⁴

The question remaining is whether Guarantee's employee should have recognized that care in storing the jack and tire was necessary for the protection of passengers such as Harper. On this point the evidence offered does not preclude a difference of opinion by reasonable persons.

It is common knowledge that tires and jacks are heavy objects which if swung or propelled by force against a person can cause injury or death. It is also common knowledge that a heavy object stored in a cavity will be held in place by gravity unless acted upon by some external force. The impact of two automobiles or an automobile with a stationary object, in everyday experience, generates such a force and causes the movement of bodies or objects toward the point of impact.

Guarantee's employee worked on Hacker's Chevette. It is reasonable to infer he knew it was a hatchback, knew that the wheel well was in the passenger compartment, and observed or from his experience should have known that the wheel well was equipped with devices for securing the spare and jack. Guarantee's employee also had actual experience with the carpet and plastic wheel well cover and the manner in which they were secured. One might reasonably infer from the weight of the covering that it would be insufficient of itself to prevent the movement of the tire or jack if sent in motion by an external force. In short, a reasonable jury could conclude that proper storage of the spare and tire was necessary for the protection of Harper.

The facts offered, when considered in the light most favorable to Harper, are sufficient to demonstrate the existence of a relationship between Harper and Guarantee such as to impose a duty to use care toward Harper. Consequently, Guarantee was not entitled to summary judgment on the element of duty.

II.

Guarantee next argues that as a matter of law its negligence was not the proximate cause of Harper's injuries. The heart of its argument is the assertion that its negligence merely created a condition which could not be the cause of Harper's injuries unless Hacker's subsequent intervening conduct was foreseeable. Guarantee cites a series of cases for the proposition that an automobile accident which produces injury as a result of a condition created by a defendant's negligence is not reasonably foreseeable.

In determining whether a cause of injury is actionable, the test is to be found not in the number of intervening events, but in the character of the original act and its natural and probable consequences. See, Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847, 852. A negligent act or omission is a proximate cause of injury if injury is a natural and probable consequence which in light of the circumstances should reasonably have been foreseen or anticipated, regardless of whether the earlier negligence concurs with other proximate causes of injury, id., or another act of negligence intervenes. See, Havert v. Caldwell (1983), Ind., 452 N.E.2d 154. Consequently, when an independent agency does intervene between the defendant's negligence and the injury, the legal effect of the intervening agency is not determined by characterizing a defendant's actions as merely creating a condition, but depends instead upon whether, under the circumstances, the agency might reasonably have been expected to intervene in such a way as to produce an injury similar to the one actually caused. ⁵ Mansfield v. Shippers Dispatch, Inc. (1980), Ind.App., 399 N.E.2d 423, 426, trans. denied; Havert, 452 N.E.2d at 158-159; City of Bloomington v. Kuruzovich (1987), Ind.App., 517 N.E.2d 408, 415.

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