Czarnecki v. Hagenow

• Citation: 477 N.E.2d 964
• Decision Date: 23 May 1985
• Docket Number: No. 3-484A104,3-484A104
• Parties: Rodney CZARNECKI, Plaintiff-Appellant, v. Jens HAGENOW, et al., Defendants-Appellees.
• Court: Court of Appeals of Indiana

Page 964

477 N.E.2d 964 Rodney CZARNECKI, Plaintiff-Appellant,
v.
Jens HAGENOW, et al., Defendants-Appellees. No. 3-484A104. Court of Appeals of Indiana,
Third District. May 23, 1985.

Page 965

Hugo E. Martz, Valparaiso, for plaintiff-appellant.

Leon R. Kaminski, Mark A. Lienhoop, La Porte, for defendants-appellees.

GARRARD, Judge.

In 1975 Rodney Czarnecki, who was sixteen, was working as a farm hand for Richard Swanson. He had worked on farms since he had been in the seventh or eighth grade.

On September 1, 1975 Rodney, as part of his employment, attempted to unhook a hay chopper from the tractor that had been used to pull the chopper. In doing so he failed to detach a rope that ran from the chopper through the window of the tractor cab and was tied in the cab. The rope was used so that the chopper mechanism which permitted the chopper to be shifted from a field, or operating position, to a highway, or transport position, could be operated without leaving the tractor.

Richard Swanson had borrowed the tractor in question from his brother, David Swanson. He had borrowed the chopper from his neighbor, Jens Hagenow, the defendant in this case.

When Czarnecki attempted to drive the tractor away from the chopper the attached rope snapped and shattered the glass in the window of the tractor cab. Flying glass fragments blinded Czarnecki in his left eye.

The attached rope would have been visible to someone standing between the tractor and chopper and would have been noticed by Czarnecki if he had looked over his right shoulder before attempting to drive the tractor away from the chopper.

Subsequently this suit was commenced against Jens Hagenow, as the owner of the chopper. ¹ After discovery depositions were taken Hagenow moved for summary judgment. The trial court found that Czarnecki's injury was not foreseeable by Hagenow and entered summary judgment. This appeal followed.

Two questions are raised to support the assertion that summary judgment was improper. Czarnecki contends that foreseeability is a question of fact precluding disposition by summary judgment. He also asserts a genuine factual issue existed concerning his allegation that Hagenow or one of his employees negligently tied the chopper rope to the tractor cab's window bracket. We commence with the latter question.

It is undisputed that Hagenow did not tie the rope to the tractor. He was absent, probably milking cows, when someone from Swanson's came to pick up the hay chopper. He had no business relationship with either Czarnecki or Czarnecki's employer, David Swanson. Swanson had telephoned the day before asking if he might borrow the hay chopper and Hagenow had given permission.

Czarnecki's brief asserts that the mere allegation of his complaint to the

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effect that Hagenow or one of his employees negligently attached the rope to the Swanson tractor is sufficient to defeat summary judgment. This, of course, is not true. Indiana Rules of Procedure, Trial Rule 56(E); Cunningham v. Associates Capital Services Corp. (1981), Ind.App., 421 N.E.2d 681.

At oral argument counsel additionally asserted that the deposition of Hagenow's employee at the time, Todd Shireman, was sufficient to establish a genuine issue concerning whether Shireman tied the rope to the tractor.

That testimony was as follows:

"Q. Now, in talking to those various people, have you ever found out who hooked up the tractor and chopper?

A. That seems to be the mystery of the whole thing; no.

Q. Well, has it been narrowed down at all?

A. Not that I know of.

Q. Did you hook it up?

A. No.

Q. You don't know who it might have been?

A. It could have been any one of us that worked there.

Q. You know it wasn't you, is that right?

A. It's something I don't remember, as far as no [sic], I don't believe I did.

Q. But it's possible you did? ²

A. It's possible."

Record at 11, 12.

On cross examination the following then occurred:

"Q. Mr. Shireman, when you arrived the evening of September 1, 1975, at the Hagenow farm, I'm going to ask you first, as far as the equipment involved in the accident, can you tell me whose hay chopper it was?

A. Jens'.

Q. You mean Mr. Hagenow's?

A. Yes.

Q. And I'm going to ask you whose tractor was involved?

A. Dave Swanson's.

Q. Had you ever, prior to September 1, 1975, hooked Mr. Hagenow's hay chopper to Dave Swanson's tractor? ³

A. No, I did not."

Record at 18.

This evidence was insufficient to raise a genuine issue of fact. It is, admittedly, the only evidence to establish Czarnecki's allegation that Hagenow or one of his employees tied the rope to the tractor.

A jury finding to that effect would be fatally defective as based upon mere conjecture. See Letson v. Lowmaster (1976), 168 Ind.App. 159, 341 N.E.2d 785. As our Supreme Court held in Gaboury v. Ireland Road Grace Brethren Church (1983), Ind., 446 N.E.2d 1310, 1313, in order to be "genuine" within the contemplation of Trial Rule 56 there must be sufficient evidence supporting the claimed factual dispute "to require a jury or judge to resolve the parties' differing versions of the truth at trial."

Of further significance, in the same case the court ruled that,

"... contradictory testimony contained in an affidavit of the nonmovant may not...