Hamilton v. Roger Sherman Architects Group, Inc.

Decision Date30 January 1991
Docket NumberNo. 73A01-9006-CV-259,73A01-9006-CV-259
Citation565 N.E.2d 1136
CourtIndiana Appellate Court
PartiesProd.Liab.Rep. (CCH) P 12,875 Maura HAMILTON and Clyde Hamilton, Plaintiffs-Appellants, v. ROGER SHERMAN ARCHITECTS GROUP, INC., and JD & M Building Co., Inc., Defendants-Appellees.

Douglas G. Wagner, Brazill & Bennett, Indianapolis, for plaintiffs-appellants.

Peter G. Tamulonis, John B. Drummy, James W. Roehrdanz, Kightlinger & Gray, Indianapolis, Stephen L. Vaughan, Todd J. Kaiser, Lock, Reynolds, Boyd & Weisell, Indianapolis, for defendants-appellees.

BAKER, Judge.

This case illustrates that not all products liability actions require the resolution of intellectually difficult issues and propositions. Plaintiff-appellant Maura Hamilton 1 was injured when she was walking under a bar countertop and stood up too soon, bumping her head. She brought suit against the architect that designed the bar, defendant-appellee Roger Sherman Architects Group, Inc. (Sherman), and the contractor that built the bar, defendant-appellee JD & M Building Co., Inc. (JD & M). Judge Charles O'Connor granted summary judgment to Sherman on both Hamilton's negligence and strict liability claims, and granted JD & M's motion to dismiss. Hamilton now appeals, raising several questions for our review. The dispositive issue, however, is whether the bar was defective or dangerous.


Hamilton worked as a bartender for Norman's, a restaurant/bar in Indianapolis's Union Station. Norman's opened in April 1986, and Hamilton began her employment a few weeks before the facility actually opened for business. Norman's accoutrements included a large wooden bar, designed by Sherman and installed by JD & M. The bar was oval shaped and had a "pass-under" entrance/exit. To enter or exit the area behind the bar, employees had to duck under the bar's countertop and take a few steps in a crouched position. The underside of the countertop was approximately 40 inches above the floor and the entrance/exit was roughly three feet wide. Prior to opening day, Maura received reminders to be careful when using the entrance/exit.

Over the next several months, Hamilton passed under the bar literally thousands of times. On at least a dozen occasions, she bumped the countertop, though her deposition testimony reveals she was aware of the danger of standing up too soon and always tried to be careful. Hamilton also trained three or four new bartenders, and advised them to be careful in using the bar's entrance/exit. In September 1986, Hamilton was entering the area behind the bar and stood up before she cleared the edge of the countertop. As a result, she fell and sustained injuries. This suit followed.


Judge O'Connor granted summary judgment to Sherman. When reviewing a ruling on a motion for summary judgment, we apply the same standards as the trial court, reviewing the pleadings, depositions, answers to interrogatories, admissions, and any affidavits in the light most favorable to the non-moving party. Moore v. Sitzmark Corp., et al. (1990), Ind.App., 555 N.E.2d 1305. The parties here do not dispute the condition of the bar, which is the only material factual question in the case. In such a situation, our task is to determine whether the trial court correctly applied the law to the undisputed facts. State ex rel. Bd. of Dental Examiners v. Judd (1990), Ind.App., 554 N.E.2d 829.

Judge O'Connor also granted JD & M's motion to dismiss under Ind.Trial Rule 12(B)(6). It is apparent from his final order, however, that he went beyond the pleadings in reviewing the motion. Therefore, under Ind.Trial Rule 12(B)(8), we will review the grant of the motion to dismiss as a grant of summary judgment under Ind.Trial Rule 56, applying the principles we have already mentioned. Bronson v. Bronson (1983), Ind.App., 448 N.E.2d 1231.


Hamilton's strict liability claims against Sherman and JD & M are governed by the Indiana Product Liability Act (the Act), IND.CODE 33-1-1.5-1 et seq. An action brought under the Act contains several elements essential to a plaintiff's claim. The central element here, though, is the basic requirement that a product must be in a "defective condition unreasonably dangerous" for a manufacturer or seller to be liable for a plaintiff's injuries. IND.CODE 33-1-1.5-3. 2A product is in a defective condition ... if, at the time it is conveyed by the seller to another party, it is in a condition:

(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and

(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.

IND.CODE 33-1-1.5-2.5(a). A situation is unreasonably dangerous when "the use of a product exposes the user or consumer to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer who purchases it with the ordinary knowledge about the product's characteristics common to the community of consumers." IND.CODE 33-1-1.5-2.

Hamilton's claim is nothing more than a complaint that the 40 inch high countertop under which she had to crouch was defective solely by virtue of its 40 inch height. She alleges no defect beyond the height of the object. We are frankly stunned that anyone could assert that a stationary wooden object, with no sharp, jagged, or slippery surfaces or protuberances, or other flaws, is defective merely because one must crouch under it to get from point "A" to point "B", and hold as a matter of law that the condition of the bar was not such that it posed a risk of physical harm not contemplated by reasonable persons among the bar's expected users. 3

Neither can we see any unreasonable danger, as the Act defines that phrase, in the bar. No reasonable juror could find the risk of standing up too soon and receiving injuries was beyond the risk contemplated by the "ordinary consumer" of the bar: as a matter of common observation and experience, people in the food/beverage service industry do tasks involving lifting, balancing, bending, crouching, stooping, and carrying. Each of these tasks carries normal risks, and bumping one's head while attempting to stand up too soon in a low area is exactly one of those normal and contemplated risks within the community of consumers' "ordinary knowledge about the product's characteristics." The march of human progress toward greater material well-being and additional creature comforts has not yet reached the point at which we are prepared to say it is unreasonably dangerous for a person to have to crouch down to walk under a countertop. As Hamilton herself admits, "[t]he bar exit was only dangerous when the user miscalculated the distance he had walked while bent over and stood up to [sic] soon." Appellant's Reply Brief at 4.

It follows from all we have said that Judge O'Connor properly resolved Hamilton's strict liability claims in favor of Sherman and JD & M.

A. Architect

Hamilton's complaint alleged Sherman failed to exercise reasonable care in designing the bar. Because there was no privity of contract between Sherman and Hamilton, Hamilton must demonstrate she comes within the rule of Hiatt v. Brown (1981), Ind.App., 422 N.E.2d 736 to recover for any alleged negligence on Sherman's part. Hiatt requires the architect's design to be so negligent "as to create a condition imminently dangerous to third persons" for a plaintiff to recover. Id. at 740 (citations omitted). The rationale for the rule is stated in Citizens Gas & Coke Utility v. American Econ. Ins. Co. (1985), Ind., 486 N.E.2d 998, and Snider v. Bob Heinlin Concrete Const. Co. (1987), Ind.App., 506 N.E.2d 77, trans. denied. Snider provides the following definitions:

"INHERENTLY DANGEROUS. Danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances."

"IMMINENT. Near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous."

"IMMINENTLY DANGEROUS ARTICLE. One that is reasonably certain to place life or limb in peril."

Id. at 82 (quoting Blacks Law Dictionary 884-85, 921 [rev. 4th ed. 1968]. There is nothing inherently or imminently dangerous about the bar's countertop: the only precaution required to prevent injury is that a person using the entrance/exit look before standing upright. The normal use of one's senses as one moves through space is not a "special precaution" which renders one's environs inherently dangerous. Rather, "[t]he term 'inherently dangerous' is more properly applied to activities which are, by their nature, always dangerous, i.e., blasting or wild animals." National Steel Erection v. Hinkle (1989), Ind.App., 541 N.E.2d 288, 292, reh'g. granted and clarified on other grounds, 553 N.E.2d 1252, trans. denied. A stationary countertop is not, by its nature, always dangerous. 4 Neither is it an article which is reasonably certain to imperil life or limb.

Sherman's design did not create a condition of imminent danger to third persons, and the trial court properly granted summary judgment to Sherman on Hamilton's claim of negligent design.

B. Contractor

A similar analysis applies to Hamilton's negligence claim against JD & M. Generally, independent contractors are not liable for injuries to third persons after acceptance of their work by the owner. Citizens Gas & Coke Utility, supra; National Steel Erection, supra. Liability to third persons will continue after acceptance, however, in two circumstances. First, if "the work is so negligently defective as to be imminently dangerous to third persons," an injured third party may recover from the contractor. Citizens Gas & Coke Utility, supra, at 1000. See also ...

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