Hagerman Const., Inc. v. Copeland
| Citation | 697 N.E.2d 948 |
| Decision Date | 25 June 1998 |
| Docket Number | No. 18A04-9612-CV-519,18A04-9612-CV-519 |
| Parties | 1998 O.S.H.D. (CCH) P 31,656 HAGERMAN CONSTRUCTION, INC., Appellant-Defendant, v. Theresa COPELAND in her capacity as Administrator of the Estate of Anthony G. Copeland, Appellee-Plaintiff, Crown-Corr, Inc., Appellee-Defendant. |
| Court | Court of Appeals of Indiana |
Appellant-Defendant, Hagerman Construction, Inc. ("Hagerman"), appeals the jury's award of $4,750.000.00 to Teresa Copeland ("Copeland"), administratrix of the estate of her husband Anthony Copeland ("Anthony"), on her claim for Anthony's wrongful death. Hagerman also appeals the jury's finding that its subcontractor Crown-Corr, Inc. was not at fault. We affirm in part and remand in part.
Hagerman raises thirteen issues for our review which we restate as:
I. Whether the trial court properly excluded the deposition of Copeland's expert witness, who was unavailable for trial;
II. Whether the trial court properly admitted evidence of subsequent remedial measures by Hagerman;
III. Whether the trial court properly excluded evidence that Hagerman had not violated regulations of the Indiana Department of Labor/OSHA ("IOSHA"), and excluded evidence that Hagerman's subcontractor, John F. Beasley Construction Co. ("Beasley"), had violated IOSHA regulations;
IV. Whether the trial court properly excluded evidence of Anthony's blood alcohol content V. Whether the trial court properly admitted evidence of construction industry custom and practice regarding the meaning of contract terms;
VI. Whether the trial court properly excluded evidence of collateral source payments received by Copeland;
VII. Whether the trial court properly refused Hagerman's tendered jury instruction regarding judicial notice of prior orders;
VIII. Whether the trial court properly instructed the jury on the sudden emergency doctrine;
IX. Whether the trial court properly instructed the jury regarding responsibility for safety;
X. Whether the trial court properly instructed the jury regarding Crown-Corr's obligation to indemnify Hagerman;
XI. Whether the trial court properly denied Hagerman's motion for summary judgment on its cross-claim for indemnification from Crown-Corr;
XII. Whether the trial court properly denied Hagerman's motion for set-off, requesting a credit against the judgment in the amount of Copeland's settlement with Sater Electric, Inc.; and,
XIII. Whether the trial court properly refused to find the jury's damage award excessive.
The facts most favorable to the verdict show that in 1990, Ball State University contracted with Hagerman and Sater Electric Co. ("Sater") for the construction of a new basketball arena. Hagerman was a prime contractor responsible for general construction, and Sater was a prime contractor responsible for mechanical and electrical construction. On April 24, 1991, Anthony, an experienced ironworker employed by Beasley, a subcontractor of Hagerman, fell to his death through an unprotected opening in the precast concrete nearly forty-five feet above the ground. The opening was to allow for vertical heating and cooling ductwork to be installed by Sater. The precast concrete was manufactured by Concrete Technology, Inc. ("CTI"), also a subcontractor of Hagerman and was installed by Pre-Cast Services, Inc., a subcontractor of CTI. At the time of the accident, Crown-Corr was installing sheet metal siding in the vicinity of the opening.
The opening through which Anthony fell was one of many openings on the upper level of the arena which had gone unprotected for a considerable time. On March 29, 1991, Crown-Corr, preparing to begin its work, requested that Hagerman cover the openings before it would begin. Because Hagerman had told all its subcontractors to provide such safety measures themselves if they were concerned, it initially refused, but proceeded to cover the openings nonetheless. Although the evidence was conflicting regarding whether all the openings were ever covered, the opening into which Anthony fell was covered at some point prior to the accident. The evidence was also conflicting regarding who uncovered that particular opening and when. Before the accident, Sater was also in the vicinity doing minor electrical work and taking measurements in preparation of installing the vertical ductwork through the openings.
When Anthony fell through the opening, he first landed face down on a concrete beam fifteen to eighteen feet below. There was testimony that although he appeared to be severely injured, Anthony stood up, tried to move along the beam, then crouched down before slipping off and falling the rest of the way to the ground. Anthony was twenty-nine years of age and was survived by a wife and two young sons.
On August 3, 1992, Copeland filed her complaint for wrongful death against Hagerman, CTI and Pre-Cast Services, Inc. Hagerman filed a cross-claim for indemnity against CTI and CTI filed a cross-claim against Pre-Cast Services, Inc. Summary judgment was later granted in favor of CTI and Pre-Cast Services, Inc. and both were dismissed from the suit. Crown-Corr and Sater were named nonparties and then joined in the suit. Hagerman initiated a third-party action against Beasley, which was severed for later trial. Sater and Crown-Corr both filed motions for summary judgment which the trial court denied. Hagerman also filed a cross-claim for indemnification against Crown-Corr. Copeland settled with and dismissed Sater prior to trial, and Sater was designated a nonparty.
Following a four day trial, the jury found that Hagerman was one hundred percent at fault for Anthony's death, assigned no fault to either Sater or Crown-Corr, and found for Crown-Corr on Hagerman's cross-claim for indemnification. The jury awarded Copeland $4,750,000.00 in damages. Hagerman's motion to correct errors was denied as was Hagerman's motion for set-off of the amount of Sater's settlement with Copeland. Hagerman now appeals the trial court's entry of judgment.
Hagerman argues that the trial court erred in excluding from evidence the deposition of Copeland's expert witness, Quentin Hasse ("Hasse"), who was not present to testify. Hagerman contends that the deposition was admissible under either Ind.Trial Rule 32(A)(3) or Ind.Evidence Rule 804(b)(1). The trial court excluded the deposition "based upon [Evid.R. 403], as far as unfair prejudice, the matter would lead [sic] to confuse the jury in my opinion, and I'm not sure that Crown did have a similar motive at the time of cross examination." (R. 6759).
The admission or exclusion of a deposition is within the sound discretion of the trial court. LKI Holdings, Inc. v. Tyner, 658 N.E.2d 111, 116 (Ind.Ct.App.1995), trans. denied. We will reverse the trial court only if we determine that an abuse of discretion occurred. Kellems v. State, 651 N.E.2d 326, 328 (Ind.Ct.App.1995). Indiana Trial Rule 32 governs the use of depositions at trial: "At the trial ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were present and testifying, may be used against any party who was present or represented at the taking of the deposition ..." 2 T.R. 32(A). Both Copeland and Crown-Corr were represented by counsel during the taking of Hasse's deposition. Thus, the deposition was admissible under T.R. 32(A).
Hasse's deposition is hearsay if offered for the truth of the assertions contained therein. Nevertheless,
[t]estimony given as a witness ... in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination [is not excluded by the hearsay rule if the declarant is unavailable as a witness].
Evid.R. 804(b)(1). The trial court found that Crown-Corr did not have a similar motive to cross examine Hasse, apparently in response to Crown-Corr's argument that Hasse's deposition was a discovery deposition, not a trial deposition. The Indiana Rules of Trial Procedure do not recognize such a distinction. 3 Our review of the Hasse deposition, admitted pursuant to Hagerman's offer to prove, indicates that Crown-Corr extensively cross-examined the deponent. Although Crown-Corr may have anticipated that Hasse would testify at trial and be subject to further cross-examination, we do not discern that its motive during the taking of Hasse's deposition was any different. The questioning focused on which party was responsible for the opening through which Anthony fell: Hagerman, Sater, or Crown-Corr. We conclude that the deposition was admissible under Evid.R. 804(b)(1).
The trial court, however, excluded the deposition because it found that there was a danger of unfair prejudice or confusion of the jury. Statements that are admissible under one rule may be excluded by another. Evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Evid.R. 403. Although we are inclined to agree that the proffered deposition was confusing, we choose not to speculate on the reasoning behind the trial court's ruling. Even if there was error, "[a]ny error in the admission of evidence is harmless if the same or similar...
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