Beitzel v. Orton
| Decision Date | 19 February 1992 |
| Docket Number | Nos. 18069,18070,s. 18069 |
| Citation | 121 Idaho 709,827 P.2d 1160 |
| Parties | Robert BEITZEL, Plaintiff-Respondent, v. City of Coeur d'Alene, General Telephone Company of the Northwest, Inc., and Coeur d'Alene Asphalt, Defendants, and Sheldon V. ORTON and Nancy Orton, individually and as Trustees for Orton Utilities Construction, Inc., Defendants-Appellants. Robert BEITZEL, Plaintiff-Respondent, v. CITY OF COEUR d'ALENE and General Telephone Company of the Northwest, Inc., Defendants-Appellants, and Sheldon V. ORTON and Nancy Orton, individually and as Trustees for Orton Utilities Construction, Inc., and Coeur d'Alene Asphalt, Defendants-Respondents. CITY OF COEUR d'ALENE and General Telephone Company of the Northwest, Inc., Crossclaimants-Appellants, v. Sheldon V. ORTON and Nancy Orton, individually and as Trustees for Orton Utilities Construction, Inc. and Coeur d'Alene Asphalt, Crossdefendants-Respondents. Coeur d'Alene, Oct. 1991 Term |
| Court | Idaho Supreme Court |
Eismann Law Office, Coeur d'Alene, for defendant-respondent Orton. Samuel D. Eismann, argued.
Charles W. Hosack, Coeur d'Alene, for defendants-appellants City of Coeur d'Alene and General Tel. Co.
Howard & Owens, Coeur d'Alene, for plaintiff-respondent Beitzel. Kenneth B. Howard, Jr., argued.
Quane, Smith, Howard & Hull, Coeur d'Alene, for defendant-respondent Coeur d'Alene Asphalt. Mark A. Lyons, argued.
This is a personal injury case that also involves the right to indemnification. We affirm the judgment in favor of the injured party and rule that two of the parties held liable for the injuries are entitled to be indemnified by the other two parties.
THE BACKGROUND AND PRIOR PROCEEDINGS.
At approximately 12:30 a.m. on a Monday morning, Robert Beitzel was injured when he drove his motorcycle into an unmarked, unbarricaded three-inch deep trench on a public street in Coeur d'Alene. The trench was part of a project to install underground telephone lines for General Telephone Company of the Northwest, Inc. (GTNW). The City of Coeur d'Alene (the city) issued a permit to GTNW for the purpose of laying conduit containing the lines. GTNW contracted with Orton Utilities Construction, Inc. (Orton) to install the lines and with Coeur d'Alene Asphalt (CDAA) to replace the asphalt. In its contract with GTNW, Orton agreed to indemnify GTNW for any liability due to personal injury to any person resulting from the work, unless the injury was caused solely by the negligence of GTNW.
The procedure for installation of the conduit consisted of Orton removing the asphalt, digging a trench several feet deep and several feet wide, placing the conduit at the bottom of the trench, and backfilling the trench to surface level with gravel. Orton was responsible for providing flaggers, signs, cones, signals, and barricades at the site. Once Orton completed its installation and backfilling for a distance of 400 feet, CDAA removed three inches of backfill and laid an asphalt strip to restore the original pavement surface. CDAA was responsible for signalling and barricading the site during its portion of the project. The city and GTNW each had an inspector to inspect the work on the project.
Beitzel sued the city, GTNW, Orton, and CDAA. The city tendered its defense to GTNW, which accepted the tender. GTNW tendered the defense of the city and GTNW to Orton, which rejected the tender. The city and GTNW cross-claimed against Orton and CDAA, seeking indemnification from Orton under the contract and from CDAA under common law principles.
Following the trial, the jury returned a special verdict awarding Beitzel $300,000.00. The jury found that there was no negligence of Beitzel that was a proximate cause of his injuries and that the other parties contributed to the cause of the accident in the following percentages:
The city 35%
GTNW 30%
Orton 25%
CDAA 10%
The trial court entered judgment in favor of Beitzel against the city, GTNW, Orton, and CDAA, jointly and severally. The trial court also entered a judgment for indemnification in favor of the city and GTNW against Orton and CDAA, jointly and severally, for any portion of the judgment in favor of Beitzel satisfied by either the city or GTNW.
The city, GTNW, Orton, and CDAA moved for judgment not withstanding the verdict (j.n.o.v.) and for a new trial pursuant to I.R.C.P. 59(a)(5), (6), and (7), and, in the alternative, for a remittitur of damages. Orton and CDAA moved to alter or amend the judgment for indemnification.
The trial court denied the motions for j.n.o.v., for a new trial, and for a remittitur of damages. The trial court granted the motions to amend the judgment for indemnification, finding that the city and GTNW were not entitled to indemnification from Orton and CDAA.
The city, GTNW, and Orton appealed from the judgment in favor of Beitzel. The city and GTNW appealed from the trial court's denial of indemnification from Orton and CDAA.
THE TRIAL COURT CORRECTLY DENIED THE MOTIONS FOR J.N.O.V.
The city, GTNW, and Orton assert that the trial court should have granted their motions for j.n.o.v., because there was insufficient evidence for the jury to apportion the degrees of negligence as it did. We disagree.
In reviewing the trial court's denial of the motions for j.n.o.v., we must review the record of the trial and draw all inferences from the evidence in a light most favorable to Beitzel to determine if there was substantial evidence to justify submitting the case to the jury. Quick v. Crane, 111 Idaho 759, 764, 727 P.2d 1187, 1192 (1986).
The trial court instructed the jury that each of the four parties sued by Beitzel had some duty to protect those who used the street where the accident occurred. The city had a nondelegable duty to place and maintain traffic control devices necessary to regulate, warn or guide traffic in the construction area. GTNW had this same duty. Orton had the duty to leave its work in a safe condition for the public or to provide appropriate warning devices if the area could not be left in a safe condition. CDAA had this same duty.
The trial court also instructed the jury that in determining any negligence of the city or GTNW that was a proximate cause of Beitzel's injuries, the jury was allowed to consider only whether the city or GTNW failed to discover or remedy any defect in the street or any inadequacy in warning of a defect.
At trial, there was substantial evidence to support the following:
1. On the Thursday before Beitzel's accident, CDAA removed three inches of backfill from the portion of the street that Orton had excavated and refilled. CDAA placed some small traffic control cones beside the excavation. CDAA left the scene without paving the excavation with asphalt. There was no further work on the portion of the street that had been excavated before Beitzel's accident early on Monday morning.
2. Late on Thursday afternoon, Orton's superintendent and GTNW's inspector placed a lighted barricade and some larger traffic control cones at the excavation left unpaved by CDAA.
3. Orton's superintendent was at the site of the excavation for a half day on the Friday before Beitzel's accident. The superintendent testified that the condition of the excavation had not changed since the afternoon before and that the barricade and cones were in the same position. The superintendent did not return to the site of the excavation until Monday morning after Beitzel's accident.
4. GTNW's inspector did not work on the Friday, Saturday, or Sunday preceding Beitzel's accident.
5. The city had assigned an inspector to the project. According to the city's policy, this inspector was not expected to make regular trips to the site of the excavation to check on GTNW, Orton, or CDAA. The inspector's responsibility was to respond if there were a complaint, or if GTNW encountered a change in the plans and were going to proceed in a different work pattern.
6. The lighted barricade was not in place at the excavation when Beitzel's accident occurred early on Monday morning.
This evidence and the inferences from it that are most favorable to Beitzel justified the trial court in submitting to the jury the apportionment of the negligence that proximately caused Beitzel's injuries. It was then the jury's function to determine from all the evidence the degree of negligence of each of the parties.
The trial court correctly denied the motions for j.n.o.v.
THE TRIAL COURT WAS CORRECT IN DENYING THE MOTIONS BASED ON ALLEGED ERRORS OF LAW IN THE JURY INSTRUCTIONS.
The city and GTNW assert that the trial court should have granted their motion for a new trial pursuant to I.R.C.P. 59(a)(7), because the trial court gave the jury erroneous instructions. We disagree.
The city and GTNW contend that the trial court failed to explain to the jury the nature of the nondelegable duty imposed on the city and GTNW for defects caused by Orton and CDAA. In their view, this caused the jury to accumulate the negligence of CDAA and Orton in apportioning negligence to GTNW and the city.
The instructions at issue provided:
1. In determining whether the city and GTNW were negligent in a way that was a proximate cause of Beitzel's injuries, the jury was allowed to consider only whether or not the city and GTNW failed to discover or remedy any defect in the roadway or any inadequacy in warning of any defect caused by Orton or CDAA.
2. The city remained liable for Beitzel's injuries caused by the failure of GTNW, Orton, or CDAA to exercise reasonable care or to take reasonably necessary precautions to place and maintain traffic control devices necessary to regulate, warn, or guide traffic in construction areas.
3. GTNW remained liable for Beitzel's injuries caused by the failure of Orton or CDAA to exercise reasonable care or to take reasonably necessary precautions to place and maintain traffic control devices necessary to regulate, warn, or guide traffic in construction...
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