Becker v. Kreilein

• Decision Date: 13 August 2001
• Docket Number: No. 19A01-0102-CV-49.,19A01-0102-CV-49.
• Citation: 754 N.E.2d 939
• Parties: Jack BECKER and Catherine Becker, Appellants-Plaintiffs, v. Keith KREILEIN and Cindy Kreilein and Steven Krueger, Appellees-Defendants.
• Court: Indiana Appellate Court

754 N.E.2d 939

Jack BECKER and Catherine Becker, Appellants-Plaintiffs, v. Keith KREILEIN and Cindy Kreilein and Steven Krueger, Appellees-Defendants.

No. 19A01-0102-CV-49.

Court of Appeals of Indiana.

August 13, 2001.

Rehearing denied September 27, 2001.

Mark K. Phillips, Phillips & Phillips, P.C., Boonville, IN, Attorney for Appellants.

R.D. Zink, Henderson, Daily, Withrow & DeVoe, John B. Drummy, Kightlinger & Gray, Indianapolis, IN, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Plaintiffs, Jack and Catherine Becker (hereinafter collectively referred to as "the Beckers"), appeal the trial court's grant of Appellees-Defendants', Keith and Cindy Kreilein (hereinafter collectively referred to as "the Kreileins"), second Motion for Summary Judgment. The Beckers also appeal the trial court's grant of Appellee-Defendant's, Steven Krueger¹ (Krueger), Second Motion for Summary Judgment.

We reverse.

ISSUE

The Beckers raise three issues on appeal, which we consolidate and restate as follows: whether the trial court erred in granting both the Kreileins' and Krueger's second motions for summary judgment.

FACTS AND PROCEDURAL HISTORY

At all relevant times to this matter, the Kreileins resided on Greene Street in Jasper, Indiana. The Beckers resided on Leopold Street, which is located on the opposite side of the block and several houses away from the Kreileins.

Prior to April 3, 1997, the Kreileins' sewer line had repeatedly backed up and overflowed into their basement. The Kreileins hired Krueger, a licensed plumber, to resolve this problem. Several attempts to clear the sewer line failed to resolve the problem, so a decision was made to replace the line.

The Kreileins contracted with Krueger to replace the sewer line, and a new line was installed on April 3, 1997. Krueger determined that it would be less expensive to install a new sewer line in a new location, rather than place a new line in the existing location, because the Kreileins' existing line ran underneath their driveway and garage.

On April 3, 1997, prior to installing a new sewer line for the Kreileins, Krueger disconnected the old sewer line from the Kreileins' home and from the main sewer which ran behind their property. Krueger left the old line in the ground without capping either end of the line because he believed it to be a "dead line" and the plumbing code did not require the capping of such lines. (Appendix of Appellants 13).

On May 11, 1997, Keith Kreilein noticed a wet area in his backyard and called Krueger. On May 12, 1997, Krueger inspected the line. Krueger called City of Jasper Utilities (Utilities) to inform them of the problem and to seek their assistance in testing the line. That same day, Utilities tested the line with a sewer jet and reported that there was nothing wrong. Krueger ran water through the line, but no additional water appeared.

When the wet area in the Kreileins' yard remained, Keith Kreilein called Utilities on May 16, 1997, and requested further investigation. On May 19, 1997, Utilities officials tested the Trujilos'² sewer line with dye. The dye soon appeared in the wet area of the Kreileins' yard, indicating that sewage from the Truijilos' house was draining directly into the Kreileins' yard. Keith immediately asked Utilities to correct the sewage leak. On June 2, 1997, Utilities returned to the Kreileins' house and remedied the problem.

In May 1997, Jasper experienced heavy rains. The heavy rainfall carried the sewage, which had percolated to the surface of the Kreileins' yard, down the city-owned right-of-way or alley. Eventually, the sewage ran onto the Beckers' property, which is three lots down from the Kreileins' property, at the bottom of a hill.

On December 5, 1997, the Beckers filed a Complaint against the City of Jasper and City of Jasper Utilities for property damage and personal injury, alleging that exposure to raw sewage contaminated their home and person. The Beckers' claims against the City of Jasper and City of Jasper Utilities were dismissed. Subsequently, on August 4, 1998, the Beckers filed an Amended Complaint naming the Kreileins and Krueger as defendants. The Amended Complaint maintained:

5. That due to the negligence of both the Kreileins and Krueger, Beckers [sic] house was condemned by the County Health Department as unhabitable. Further, Beckers have suffered life-threatening, permanent injury as a result of their exposure to the raw sewage.

6. That due to the negligence of both the Kreileins and Krueger, Beckers have suffered extreme mental anguish, have loss of income, have been foreclosed on their primary residence mortgage, loss of real property, loss of personal property and belongings, both present and future medical expenses, loss of consortium, pain and suffering, incurred legal fees and other unspecified damages.

(Appendix of Appellants 18).

On September 10, 1999, the Kreileins filed a Motion for Summary Judgment. On October 14, 1999, Krueger also filed a Motion for Summary Judgment. On April 13, 2000, a hearing was held on both the Kreileins' Motion for Summary Judgment and Krueger's Motion for Summary Judgment. On May 24, 2000, the trial court filed its Findings of Fact and Conclusions of Law. The trial court granted in part and denied in part the motions for summary judgment. The trial court found that the following genuine issues of material fact existed:

1. Whether Kruger [sic] was negligent in failing to cap the "dead line".

2. If Kruger's [sic] failure to cap the "dead line" was negligent on Kruger's [sic] part, whether such negligence was the proximate cause for the Plaintiffs [sic] damages, if any.

3. If Kruger's [sic] failure to cap the "dead line" was negligent, whether the Kreileins participated in such a decision so as to make them liable as well.

(Appendix of Appellants 16).

On July 28, 2000, the Kreileins filed their second Motion for Summary Judgment. On August 23, 2000, Krueger filed his Second Motion for Summary Judgment. On December 18, 2000, the trial court issued two separate Findings of Fact and Conclusions of Law, one granting the Kreileins' second Motion for Summary Judgment and the other granting Krueger's Second Motion for Summary Judgment.

In its Findings of Fact and Conclusions of Law granting the Kreileins' second Motion for Summary Judgment, the trial court held, in pertinent part, as follows:

FINDINGS OF FACT

* * *

10. As a result, they [the Beckers] later filed claims against the Kreileins and Mr. Krueger, alleging that the Kreileins were negligent in conducting sewer repairs, that the Kreileins failed to warn the Beckers of the sewage, and that the Kreileins failed to determine whether they shared a sewer line with any neighbors prior to hiring Mr. Krueger.

11. Neither Jack Becker nor Cathy Becker was present during any of the sewer repairs.

12. Neither of the Beckers has [sic] any personal knowledge as to any conversations nor any arrangements relating to the sewer work between Krueger and the Kreileins.

13. Mr. and Mrs. Kreilein had no involvement in any decision to leave the old sewer line uncapped.

14. The Kreileins were never consulted as to any decision, nor did they offer any input regarding whether to leave the old sewer line uncapped, and there was simply no discussion on the matter.

CONCLUSIONS OF LAW

There are no genuine issues of material fact which would preclude judgment for the Kreileins on the Plaintiffs' Complaint; specifically, the Court finds as follows:

* * *

2. As a matter of law, the Kreileins had no independent duty to investigate whether they shared a sewer line with anyone because they possessed no knowledge which might have put them on notice of such a fact.

3. As a matter of law, Mr. Krueger's accidental disconnection of a neighbor's sewer line, in and of itself, does not subject the Kreileins to liability because Krueger operated as an independent contractor and a principal is generally not liable for the torts of an independent contractor.

4. No exception to the independent contractor doctrine applies in this case, including the nuisance exception to the independent contractor doctrine, because sewer repair work does not normally cause a nuisance in the ordinary course of performing such work.

5. As a matter of law, the Kreileins are not liable for any alleged decision to leave the old sewer line uncapped, if such a decision constituted negligence, because they had no involvement in such a decision, and the option of leaving the line uncapped or capping it was never discussed.

(Appellee Kreilein's Appendix 78-81).

In its Findings of Fact and Conclusions of Law granting Krueger's Second Motion for Summary Judgment, the trial court held, in pertinent part, as follows:

2. The Beckers in their claims for personal injury have suffered no direct physical impact as a result of any work performed by Kruger [sic] for the Kreileins.

3. That Kruger's [sic] only contract for performance of work in this matter was with the Kreileins. That Kruger [sic] had no contractual or business relationship with the Beckers.

4. That in performing his sewer repair work for the Kreileins, Kruger [sic] assumed and undertook no specific duty for the benefit of the Beckers.

CONCLUSIONS OF LAW

There are no genuine issues of material fact which would preclude judgment for Kruger [sic] and against the Plaintiff as follows:

1. Plaintiff's theory against all defendants, including Kruger [sic], is a claim in negligence only.

2. Plaintiffs have recently raised allegations of nuisance which have not been pled. However, even if raised by pleading, there is no basis upon which to maintain a claim of nuisance.

3. Nuisance, and any claim that might flow therefrom, is not an issue in this litigation, and any claim for nuisance does not state a claim upon which relief can be granted.

4. Any duty or obligation to perform work in a proper and workmanlike fashion by Kruger [sic] was a duty that

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