Commissioner, Indiana State Highway Dept. v. Collins, No. 2-378A90

Docket NºNo. 2-378A90
Citation413 N.E.2d 982
Case DateDecember 29, 1980
CourtCourt of Appeals of Indiana

Page 982

413 N.E.2d 982
COMMISSIONER, INDIANA STATE HIGHWAY DEPARTMENT, Appellant
(Defendant Below),
v.
Omar COLLINS, Appellee (Plaintiff Below).
No. 2-378A90.
Court of Appeals of Indiana, Second District.
Dec. 29, 1980.

Page 983

Theodore L. Sendak, Atty. Gen., Thomas D. Strodtman, Asst. Atty. Gen., G. Richard Potter, Deputy Atty. Gen., Indianapolis, for appellant.

Patrick J. Bennett, Richards, Bennett & Bravard, Indianapolis, for appellee.

SHIELDS, Judge.

ON PETITION FOR REHEARING

Omar Collins (Collins) petitions for rehearing claiming that this court's Memorandum Decision handed down October 9, 1979 (Sullivan, J., dissenting) was erroneous in that it did not require a demonstration of prejudice in reversing a summary judgment entered before the ten day waiting period required by Ind. Rules of Procedure, Trial Rule 56(C) had expired.

Rehearing Granted.

Page 984

We agree with Collins, grant rehearing, vacate our prior opinion, and affirm in part and reverse in part.

FACTS

We restate the facts from our prior opinion:

On July 4, 1974, Collins and other members of his motorcycle drill team met in Indianapolis for a ride to Lebanon. As Collins's group proceeded up a ramp to Interstate 65, Collins lost control of his motorcycle, which slid from under him throwing him to the pavement.

This action was commenced in August of 1975 and an answer in denial was filed by the State. Collins then filed interrogatories on May 5, 1976 and an amended complaint and request for admissions on June 11, 1976. The State responded to the request for admissions on June 25, 1976, but as of July 8, 1976 when Collins filed for a summary judgment the interrogatories had not been answered, nor had the State filed an answer to the amended complaint.

The State's Response to Request for Admissions included the following:

"3. The plaintiff fell due the slick surface of said approach ramp.

4. That the defendant (State) had caused an epoxy sealant to be placed on the surface of the roadway of the said exit ramp which caused the extreme slickness of the said ramp.

5. That the proper engineering procedures were not followed in applying such epoxy sealant to the said ramp.

6. Defendant (State) admits the actual statement made by Halleck ... Said statement is made as follows: 'Well, it appears that possibly in the application of the material, enough sand was not introduced to the epoxy. Of course, this is the first rain that we've had since it was applied, so the combination of events probably caused the accident." (emphasis supplied)

On July 14, 1976, six days after the motion was filed, the trial court granted summary judgment for Collins on the issue of liability without a hearing. On August 23, 1976 the State answered the interrogatories.

A trial was conducted solely on the issue of damages and from a jury verdict of $55,000 the State appealed.

HARMLESS ERROR DOCTRINE APPLIED TO T.R. 56(C)

In our prior opinion we found the trial court committed reversible error in granting a summary judgment only six days after Collins had made the motion on the basis that the ten day notice requirement included in T.R. 56(C) had been violated.

Our concern was that the State's ability to raise a material issue of fact was prematurely cut off. We are now convinced that Judge Sullivan's dissent expressed the correct view, that is, that the appellant must show he was prejudiced by the trial court's error. Here, the State has not done so.

A basic precept of our trial rules is that "the court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Ind. Rules of Procedure, Trial Rule 61.

The burden of showing prejudice rests upon the appellant, in this case the State. Meeker v. Robinson, (1977) Ind.App., 370 N.E.2d 392; Richardson v. Brown, (1977) Ind.App., 362 N.E.2d 197. As Meeker reminds us, a court of review should not indulge in presumptions of prejudice to sustain allegations of error.

This harmless error doctrine has been applied in Indiana to the exact situation before us, i. e., summary judgment entered prior to the end of the ten day period required by T.R. 56(C). Smith v. Young, (1974) 160 Ind.App. 83, 310 N.E.2d 84. Federal cases have also applied the doctrine. Township of Benton v. County of Berrien, (6th Cir. 1978) 570 F.2d 114; Ikerd v. Lapworth, (7th Cir. 1970) 435 F.2d 197; Foster v. New York Central System, (7th Cir. 1968) 402 F.2d 312; Fender v. General

Page 985

Electric Company, (4th Cir. 1967) 380 F.2d 150. See also Crown Aluminum Industries v. Wabash Co., (1977) Ind.App., 369 N.E.2d 945; Lynch v. Keck, (1970) 147 Ind.App. 570, 263 N.E.2d 176. This proposition was clearly stated in Township of Benton :

"(T)he failure to comply with the ten day requirement in Rule 56(c) is subject to the harmless error rule, requiring a showing of prejudice to the party against whom summary judgment was granted in order to warrant reversal. Thacker v. Whitehead, 548 F.2d 634, 636 (6th Cir. 1977); Oppenheimer v. Morton Hotel Corp., 324 F.2d 766, 768 (6th Cir. 1963)." (emphasis supplied)

570 F.2d at 119.

This position is further summarized in 6 Moore's Federal Practice (2nd ed. 1976) P 56.14(1):

"Even where a formal motion is made, the trial court may not ignore the requirement that the motion be served at least 10 days before hearing, but the defect is waivable and subject to the harmless error rule." (Footnotes omitted.) (Emphasis supplied.)

In the present case, the State has not asserted in any way how it was prejudiced by the trial court's premature ruling. There is nothing in the record or in the State's brief indicating that in the remaining four days the State would have presented any further information to the trial court. Without such an assertion, we cannot say that the State has demonstrated it was in any way prejudiced by the trial court's failure to comply with the 10 day requirement.

The language in Ikerd hits the mark:

"Knoblett points to nothing in the record which shows that he attempted to present any counteraffidavit or other material for the court's consideration during the ten day period or that he at that time called the court's attention to its oversight in disposing of the motion one day earlier than Rule 56(c) provides .... Knoblett makes no claim of any specific resulting prejudice, and under the circumstances we are unable to perceive how any prejudice resulted from this wholly insignificant technical oversight, much less such prejudice as would support a reversal."

435 F.2d at 203.

PROPRIETY OF GRANTING SUMMARY JUDGMENT

Having granted rehearing we turn to the merits of this case 1 and affirm the trial court in part and reverse in...

To continue reading

Request your trial
2 practice notes
  • Campbell v. City of Mishawaka, No. 3-1179A321
    • United States
    • Indiana Court of Appeals of Indiana
    • June 24, 1981
    ...law that the appellant has the burden of showing prejudice from the error. Com'r, Ind. State Highway Dept. v. Collins (1980), Ind.App., 413 N.E.2d 982. Campbell has not met this burden. As to instructions, no reversible error exists where the jury has not been misled and an examination of t......
  • Otte v. Tessman, Nos. 1081S272
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...and written opinion so that this issue might be resolved. Commissioner, Indiana State Highway Department v. Collins, (1980) Ind.App., 413 N.E.2d 982 comes to us from the Second District Court of Appeals as Cause No. 2-378 A 90. This action was originally heard in Marion Superior Court, Room......
2 cases
  • Campbell v. City of Mishawaka, No. 3-1179A321
    • United States
    • Indiana Court of Appeals of Indiana
    • June 24, 1981
    ...law that the appellant has the burden of showing prejudice from the error. Com'r, Ind. State Highway Dept. v. Collins (1980), Ind.App., 413 N.E.2d 982. Campbell has not met this burden. As to instructions, no reversible error exists where the jury has not been misled and an examination of t......
  • Otte v. Tessman, Nos. 1081S272
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...and written opinion so that this issue might be resolved. Commissioner, Indiana State Highway Department v. Collins, (1980) Ind.App., 413 N.E.2d 982 comes to us from the Second District Court of Appeals as Cause No. 2-378 A 90. This action was originally heard in Marion Superior Court, Room......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT