Bogard v. Mac's Restaurant, Inc., 54A01-8805-CV-160

• Decision Date: 30 November 1988
• Docket Number: No. 54A01-8805-CV-160,54A01-8805-CV-160
• Citation: 530 N.E.2d 776
• Court: Indiana Appellate Court
• Parties: James R. BOGARD, Mary Lou Bogard, Appellants (Plaintiffs Below), v. MAC'S RESTAURANT, INC., Appellee (Defendant Below).

Page 776

530 N.E.2d 776

James R. BOGARD, Mary Lou Bogard, Appellants (Plaintiffs Below), v. MAC'S RESTAURANT, INC., Appellee (Defendant Below).

No. 54A01-8805-CV-160.

Court of Appeals of Indiana First District.

Nov. 30, 1988.

Rehearing Denied Jan. 4, 1989.

George G. Ponton, Frankfort, Lawrence McTurnan, McTurnan Meyer & Cadwell, Indianapolis, for appellants.

Cory Brundage and Bette J. Dodd, Ice, Miller, Donadio & Ryan, Indianapolis, James E. Ayres, Crawfordsville, for appellee.

ROBERTSON, Judge.

James R. and Mary Lou Bogard appeal a grant of summary judgment in favor of Mac's Restaurant, Inc. (Mac's).

We affirm.

James Bogard (Bogard) sustained a shattered hip when he fell from a ladder he had positioned against the Mac's Restaurant building in Frankfort, Indiana. Bogard worked for Crum Construction in general maintenance and had been sent by Crum in response to a call by Mac's to repair a furnace/air conditioning unit located on the roof of the restaurant. Bogard brought this action against Mac's alleging Mac's furnished him with the ladder he used to ascend to the roof, knowing that the ladder was rotten and unreasonably dangerous. He alleged Mac's negligence in failing to warn him of the ladder's dangerous condition, failing to provide him with a safe place to work, or failing to furnish him with a safe ladder was the proximate cause of his injuries.

As the trial court noted, the primary issue involved in the case at this stage of the proceedings is one of duty. Bogard derives his argument that Mac's owed him the duty to use reasonable care from three sources: the common law duty a landowner owes invitees who come upon his property; certain nondelegable common law duties owed by an employer of an independent contractor to the contractor's employees; and, the duty owed by the supplier of chattels to third persons, annuciated in the Restatement (Second) of Torts Sec. 388, Sec. 392 (1965). We agree with the trial court that, based upon the uncontradicted facts elicited through discovery, Mac's has shown it owed Bogard no duty arising from any of the relationships argued by Bogard, and it is entitled to summary judgment as a matter of law. ¹

A motion for summary judgment shall be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C). The movant bears the burden of proving the nonexistence of a genuine issue of material fact. If there is any doubt as to the existence of a material factual issue, the motion should be resolved in favor of the party opposing the motion. Nevertheless, the non-moving party must come forward with probative evidence to controvert a showing by the movant that no triable issue of fact exists for adjudication. T.R. 56(E); Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 54.

The parties agree that Bogard was an invitee as that term has been defined by Indiana law. Generally, a landowner has a common law duty to exercise care to keep his property in a reasonably safe condition for his invitees, including employees of independent contractors. Wingett, id. at 54. This duty involves warning an invitee of latent or concealed defects in the property not likely to be discovered by an invitee. Louisville Cement Co. v. Mumaw (1983), Ind.App., 448 N.E.2d 1219, 1221; Wingett, supra. The basis of the landowner's liability for failing to render the premises reasonably safe for the invitee is the landowner's superior knowledge of the dangers on the premises. Wingett, supra.

The trial court found "no showing ... that anyone on behalf of the defendant had ... knowledge superior to the plaintiff," and neither do we. The facts adduced through discovery showed that the ladder used by Bogard the day of his fall had been stored at the restaurant on a more or less permanent basis. While a dispute exists over to whom the ladder belonged, the witnesses all agree that this particular ladder had been at the restaurant for a considerable period of time. The evidence showed that Crum employees used the ladder frequently for maintenance chores at the restaurant because it was simply more convenient to use than the ladders stored on and in Crum's trucks. Bogard himself used the ladder on a regular basis, as often as twice a week, had used that ladder at least twenty times, and knew the ladder's condition; it "was the ladder they used all the time." Mac's employees also used the ladders stored at the various Mac's locations to change filters in the roof-top air conditioning units. Crum employee Wills testified in his deposition that the ladder in question was too short and that the Mac's manager at the Frankfort location complained about it being too short in front of him on one occasion. (R. 480). The evidence also showed that if repair work needed to be done on the ladders at the restaurants, Crum's employees did the work, and that ladders were often nailed together on the spot by Crum employees.

There is no evidence to indicate that anyone at Mac's had actual or constructive knowledge of the rotten condition alleged by Bogard to be the latent peril proximately causing his injury. To the contrary, the evidence is uncontradicted that Crum employees did the repair and maintenance work at the restaurants and on the ladders stored at the restaurants, and that Bogard in particular worked most frequently at the Frankfort restaurant because he lived in the area. There is no showing when the ladder had last been used or observed by an employee of Mac's, and no evidence indicating that employees or agents of Mac's had ever inspected the ladder in question or had reason to discover the ladder's rotted condition. Bogard's fall occurred in mid-December, 1982. Inasmuch as Crum Construction employees had complete control over the manner and means of performing the furnace/air conditioning repair, were the primary users of the ladder, and were ultimately responsible for the ladder's maintenance, we must agree with the trial court that Bogard has not demonstrated a genuine issue of fact on the existence of Mac's knowledge, superior or otherwise of the alleged latent defect. Therefore, Mac's had no duty to warn Bogard of the ladder's allegedly defective condition. ² See, Wingett, supra.

Bogard also apparently predicates his theory of duty upon certain exceptions to the general rule that an owner of property is not liable for the torts of the one he hires to perform work as an independent contractor. See, e.g. Cummings v. Hoosier Marine Properties, Inc. (1977), 173 Ind.App. 372, 363 N.E.2d 1266, 1277, trans. denied; Hale v. Peabody Coal Co. (1976), 168 Ind.App. 336, 343 N.E.2d 316. Bogard maintains Mac's had a nondelegable duty, even though Crum was an independent contractor, because (1) the contract between Mac's and Crum required the use of an intrinsically dangerous instrumentality, (2) Mac's was charged by law or contract with a specific duty, and (3) the act required to be performed by Crum would probably cause injury to others unless due precaution was taken to avoid harm.

With respect to the first exception relied upon by Bogard, the evidence showed only that Crum had an oral agreement with Mac's to provide general...