Deuitch v. Fleming

• Decision Date: 30 April 2001
• Docket Number: No. 30A01-0006-CV-211.,30A01-0006-CV-211.
• Citation: 746 N.E.2d 993
• Parties: Stanley DEUITCH and Bryan Deuitch, as personal representatives for the Estate of Juanita Deuitch, deceased, Appellants-Plaintiffs, v. John FLEMING and Diana Fleming, Appellees-Defendants.
• Court: Indiana Appellate Court

746 N.E.2d 993

Stanley DEUITCH and Bryan Deuitch, as personal representatives for the Estate of Juanita Deuitch, deceased, Appellants-Plaintiffs, v. John FLEMING and Diana Fleming, Appellees-Defendants.

No. 30A01-0006-CV-211.

Court of Appeals of Indiana.

April 30, 2001.

Rehearing Denied June 20, 2001.

Robert G. Barker, J. Chris Reininga, Barker & Reininga, Indianapolis, IN, Attorneys for Appellants.

Joseph M. Dietz, Meils Thompson & Dietz, Indianapolis, IN, Attorney for Appellees.

OPINION

BROOK, Judge

Case Summary

Appellants-plaintiffs Stanley Deuitch ("Stanley") and Bryan Deuitch ("Bryan") (collectively, "the Deuitches"), as personal representatives for the estate of Juanita Deuitch ("Juanita"), appeal the trial court's grant of summary judgment in favor of appellees-defendants John Fleming ("John") and Diana Fleming ("Diana") (collectively, "the Flemings").¹ We reverse and remand.

Issue

The Deuitches raise several issues for review, one of which is dispositive: whether the trial court erred in granting summary judgment in favor of the Flemings.

Facts and Procedural History

The facts most favorable to the Deuitches as the non-moving party indicate that John and his father built the Flemings' home in 1983 and installed the gas furnace, water heater, and range. In 1993, a House of Service employee disassembled and reassembled the furnace while installing central air conditioning in the Flemings' home. Except for one other occasion in 1986 when House of Service cleaned and serviced the furnace, John performed all maintenance on the furnace; he is neither an expert in nor licensed in HVAC maintenance. John cleaned and visually inspected the furnace every other year. He would remove the outside cover, "take a brush and brush soot from the—loose from the heat exchanger and vacuum it out, just kind of visually inspect in there with a flashlight and make sure everything looks like it's in pretty good shape and clean." John cleaned and inspected the furnace prior to the heating season of 1997-1998 or perhaps the year before.

On Friday, January 30, 1998, Juanita arrived at the Flemings' home to watch their two children while the Flemings spent the weekend in Chicago. When the Flemings returned home on Sunday evening, February 1, they found Juanita and their children unconscious. All three were hospitalized, but Juanita never regained consciousness and died of carbon monoxide poisoning twenty days later. The Flemings turned off the gas and called the gas company. Indiana Gas Company representative Dennis Arnold ("Arnold") arrived at the Flemings' home at approximately 7:20 p.m., vented the residence, and left on another call. When he returned at 10:00 p.m., Arnold turned on the gas for testing. Using a gas measurement instrument, Arnold measured the level of carbon monoxide in the Flemings' home at thirty-three parts per million ("ppm"). Arnold measured eighty-nine ppm at the furnace, but could not "pinpoint" the source of the carbon monoxide.²

On May 13, 1999, the Deuitches filed suit against the Flemings, alleging negligence and, alternatively, res ipsa loquitur.³ Specifically, the Deuitches alleged that John had "negligently built, or caused to be built, [the Flemings' home] in such a manner which would allow carbon monoxide to accumulate in the Residence"; that John had "negligently installed, or caused to be installed, carbon monoxide producing appliances at the Residence in such a manner that carbon monoxide accumulated in the Residence"; and that the Flemings had "negligently vented, or caused to be vented, carbon monoxide from their appliances directly into the attic of the Residence." The Flemings filed their answer on May 26, 1999.

On November 1, 1999, the Flemings filed a motion for summary judgment.⁴ In their supporting brief, the Flemings asserted that "no facts exist that would establish that Juanita Deuitch's death was proximately caused, or caused in fact, by any breach of any duty owed to her by [the Flemings]"; that the Deuitches could not identify the "specific defect or problem with any such appliance, ventilation system, or the structure of the home, in general, nor [could] they show that [the Flemings] possessed any knowledge of any such defective condition"; and that res ipsa loquitur did not apply as a matter of law.

On December 22, 1999, the Deuitches responded to the Flemings' summary judgment motion. The Deuitches designated, inter alia, two pages of a furnace manual that the Flemings had submitted in response to a discovery request, as well as the affidavit of Carl Denman ("Denman"), a consulting mechanical engineer retained by the Deuitches who had conducted a "forensic investigation" of the furnace at their request.

The Flemings replied on January 6, 2000, and filed a motion to strike several of the Deuitches' designated evidentiary materials, including the furnace manual, for lack of verification, certification, or authentication. The Flemings also filed a motion to strike/motion in limine with respect to Denman's affidavit and requested a Daubert⁵ hearing to evaluate the "scientific foundational principles" underlying the opinions expressed in the affidavit. In their response to the Flemings' motions, the Deuitches claimed that Denman's affidavit testimony was "simply a matter of observation by a person with specialized knowledge, not the application of a scientific principle," and thus Daubert did not apply. After a hearing, the trial court summarily granted the Flemings' motions to strike and motion for summary judgment on May 9, 2000.

Discussion and Decision

"The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law." Paint Shuttle, Inc. v. Continental Cas. Co., 733 N.E.2d 513, 518 (Ind.Ct.App.2000), trans. denied. When reviewing a grant of summary judgment, we apply the same standard as the trial court. See id. Summary judgment should be granted only if the designated evidentiary material⁶ establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See id.

On appellate review, we construe the pleadings, affidavits, and designated materials in a light most favorable to the non-movant. Where there are material disputed facts, or if undisputed facts give rise to conflicting reasonable inferences that affect the outcome, they must be resolved in favor of the non-movant. We give careful scrutiny to assure that the losing party is not improperly prevented from having its day in court.

Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 104 (Ind.1997) (citations omitted).

"Summary judgment is rarely appropriate in negligence cases because `[i]ssues of negligence, contributory negligence, causation and reasonable care are more appropriately left for the determination by a trier of fact.'" Ousley v. Board of Comm'rs of Fulton County, 734 N.E.2d 290, 293 (Ind.Ct.App.2000),trans. denied. More importantly, "[u]nder Indiana's standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence." Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118, 123 (Ind.1994). "Merely alleging that the plaintiff has failed to produce evidence on each element [of a cause of action] is insufficient to entitle the defendant to summary judgment under Indiana law." Id.

"To recover upon a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of care which the defendant breached proximately causing injury." Ousley, 734 N.E.2d at 293. In the instant case, both parties acknowledge that Juanita was an invitee of the Flemings, who had a duty to exercise reasonable care for her protection while she was on their premises. See Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991)

. Thus, the Flemings were liable for Juanita's injuries caused by a condition on their property, but only if they (a) knew or by the exercise of reasonable care would have discovered the condition, and should have realized that it involved an unreasonable risk of harm to Juanita; (b) should have expected that she would not have discovered or realized the danger, or would fail to protect herself against it; and (c) failed to exercise reasonable care to protect her against the danger. See id. at 640. "Before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger." Carmichael v. Kroger Co., 654 N.E.2d 1188, 1191 (Ind.Ct. App.1995),

trans. denied.

In their motion for summary judgment, the Flemings asserted,

In the present case, no facts exist that would establish that Juanita Deuitch's death was proximately caused, or caused in fact, by any breach of duty owed to her by [the Flemings]. All that is known and/or alleged by [the Deuitches] is that Juanita Deuitch died of carbon monoxide poisoning. Although [the Deuitches] speculate and allege that her death may have been caused by improper installation of various appliances and venting in the home and/or improper construction of the home itself, they have not pinpointed any single source of the carbon monoxide, nor have [the Deuitches] pinpointed how or why such carbon monoxide would be emitted into the home. In fact, [the Deuitches] have not pointed to any pre-existing conditions which would even tend to establish a defect on the property. The undisputed facts are that the [Flemings'] home had not experienced any carbon monoxide problems since the date that the furnace, water heater, and gas range were installed into the home. Simply put, the [Deuitches], by their own Complaint, only assume that the carbon monoxide emissions must have come from appliances in the home, and also only assume that Juanita Deuitch died due to negligence, in some respect, of the [Flemings]. At

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