Hapner v. State

Decision Date06 October 1998
Docket NumberNo. 02A05-9712-CV-511,C-T,02A05-9712-CV-511
Citation699 N.E.2d 1200
PartiesJohn D. HAPNER, 1 Appellant-Plaintiff, v. STATE of Indiana, Indiana Department of Transportation, S.E. Johnson Companies, Inc., andech Corporation, Inc., Appellees-Defendants.
CourtIndiana Appellate Court
OPINION

KIRSCH, Judge.

This appeal arises out of a motor vehicle accident in which John D. Hapner struck two horizontal rails of a guardrail that contained no protective end covering. Hapner appeals the trial court's granting of summary judgment in favor of C-Tech Corporation, Inc. (C-Tech), and the trial court's granting of judgment on the pleadings in favor of the State of Indiana and the Indiana Department of Transportation (collectively "IDOT"). In addition, S.E. Johnson Companies, Inc. (S.E.Johnson) appeals the trial court's granting of summary judgment in favor of Hapner. The issues presented are:

I. Whether C-Tech, a subcontractor on a highway construction project, owed Hapner a duty of care.

II. Whether Hapner was contributorily negligent as a matter of law.

III. Whether IDOT, which was dismissed from the litigation through a judgment on the pleadings, may be named as a nonparty under Indiana's Comparative Fault Act.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 17, 1993, Hapner was driving his automobile on Washington Center Road in Allen County. He started to turn left onto State Road 3 when he momentarily turned his head to speak to his two children in the back seat. As he did so, his automobile veered slightly to the left and into the median of State Road 3. Hapner was unable to steer his automobile back onto the roadway and was injured when he collided with two horizontal rails of a guardrail in the median. The horizontal rails did not contain any protective end covering and extended for approximately eight to ten feet before meeting the first support post. Hapner described the impact as the rails spearing or impaling his automobile.

At the time of Hapner's accident, a construction project was ongoing on the stretch of State Road 3 where Hapner was injured. IDOT was the construction project owner, and S.E. Johnson was the general contractor. C-Tech was S.E. Johnson's subcontractor responsible for removing and installing guardrail on the construction project. On June 1, 1992, pursuant to the instructions of IDOT's project engineer, C-Tech removed a portion of the guardrail at the site where the accident later occurred. IDOT decided that some of the guardrail should remain in place so as to divide opposing lanes of traffic. At the direction of IDOT, and with its approval, S.E. Johnson placed barricades at the site where the guardrail was removed. After C-Tech completed its work, IDOT inspected the site and approved it as being in a nonhazardous condition. C-Tech's work took one day, and S.E. Johnson paid C-Tech for its work soon thereafter. C-Tech performed no further work on the guardrail between June 1, 1992, and the date of Hapner's accident.

Hapner filed a complaint for damages against IDOT, S.E. Johnson, and C-Tech. 2 IDOT moved for judgment on the pleadings, claiming that Hapner's contributory negligence was a complete bar to his suit against it. C-Tech moved for summary judgment, claiming that, as a subcontractor, it did not owe Hapner a duty of care once its work was accepted by IDOT and S.E. Johnson. The trial court granted IDOT's and C-Tech's motions.

After IDOT was granted judgment on the pleadings, S.E. Johnson moved to amend its answer to name IDOT as a nonparty for purposes of fault allocation. Hapner filed a motion for summary judgment, claiming that IDOT was not a nonparty within the meaning of Indiana's Comparative Fault Act. The trial court granted Hapner's motion. On appeal, Hapner challenges the trial court's granting of IDOT's motion for judgment on the pleadings and C-Tech's motion for summary judgment. S.E. Johnson challenges the trial court's granting of Hapner's motion for summary judgment on the nonparty issue.

DISCUSSION AND DECISION
I. Summary Judgment for C-Tech

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind.Ct.App.1995). When reviewing a decision on a summary judgment motion, this court applies the same standard as does the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Summary judgment shall be granted if the designated evidentiary matter demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Auler v. Van Natta, 686 N.E.2d 172 (Ind.Ct.App.1997), trans. denied. In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.

Hapner's claim against C-Tech sounds in negligence. The tort of negligence consists of the following elements: 1) a duty owed to the plaintiff by the defendant; 2) a breach of that duty by the defendant; and 3) injury to the plaintiff proximately caused by that breach. Id. A defendant may obtain summary judgment in a negligence action by demonstrating that the undisputed material facts negate at least one element of the plaintiff's claim or that the claim is barred by an affirmative defense. Goldsberry v. Grubbs, 672 N.E.2d 475, 477 (Ind.Ct.App.1996).

The element C-Tech seeks to negate is duty. In response, Hapner first argues that a duty should be imposed on C-Tech based upon the three factors set forth in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991) . Hapner argues that the relationship between the parties, the foreseeability of harm, and public policy concerns all dictate the imposition of a duty on C-Tech to the motoring public to perform its work under the subcontract with S.E. Johnson "in a manner that would not put Hapner, or any other motorists, in danger of serious injury." Appellant's Brief at 13-14. We need not engage in the Webb analysis to determine whether a duty exists, however, because the duty inquiry "is governed by a line of decisions dealing specifically with contractors' liability to third parties for construction flaws." Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 170 (Ind.1996). The general rule under such line of decisions is that a contractor does not owe a duty of care to third parties after the owner or general contractor accepts the independent contractor's work. Id.; Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457 (1896); Snider v. Bob Heinlin Concrete Constr. Co., 506 N.E.2d 77, 81 (Ind.Ct.App.1987), trans. denied. An exception to this general rule exists for work that is "deemed dangerously defective, inherently dangerous or imminently dangerous such that it poses a risk of imminent personal injury to third parties." Blake, 674 N.E.2d at 170.

In an effort to avoid summary judgment, Hapner first argues that genuine issues of material fact exist as to whether IDOT or S.E. Johnson accepted C-Tech's work. Hapner further argues that even if IDOT or S.E. Johnson accepted the work, genuine issues of material fact exist as to whether C-Tech left the guardrail in an imminently dangerous condition which would bring C-Tech within the exception to the general rule.

Hapner relies on Blake, to support his arguments. There, an employee at a construction site was injured when he fell from a loading dock that had no guardrails. The subcontractor responsible for installing the loading dock was also responsible for installing the guardrails. Id. at 169. On the issue of the owner's acceptance of the contractor's work, the court set forth the following parameters:

"In evaluating 'acceptance' for these purposes, the focus is on whether the owner was better able than the contractor to prevent injury to third parties at the time the harm occurred. Factors informing the acceptance inquiry include whether: (1) the owner or its agent reasserted physical control over the premises or instrumentality; (2) the work was actually completed; (3) the owner expressly communicated an acceptance or release of liability; or (4) the owner's actions permit a reasonable inference that the work was accepted."

Id. at 171. The court held that the owner's payment to the subcontractor prior to the employee's accident was insufficient, standing alone, to establish acceptance as a matter of law, absent some other indication "that the owner was subjectively satisfied with the work, or had communicated satisfaction, assuming it existed, or had any intent to accept the loading dock without the guardrails, if in fact none had ever been installed." Id. The court further held that the existence of a factual dispute regarding whether the subcontractor had completed its work in accordance with the contract specifications, the dispute being whether the subcontractor had installed the guardrails but someone later removed them or whether the subcontractor had not installed the guardrails at all, created a genuine issue for trial regarding the owner's acceptance. Id. at 172.

In an effort to bring himself within the holdings of Blake, Hapner challenges the acceptance of C-Tech's work by arguing that genuine issues of material fact exist as to whether IDOT or S.E. Johnson reasserted physical control over the site where the guardrail was located,...

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