Hiatt v. Brown

• Decision Date: 30 June 1981
• Docket Number: No. 2-1279A392,2-1279A392
• Citation: 422 N.E.2d 736
• Parties: Thelma Marie HIATT, Appellant (Plaintiff Below), v. Eugene L. BROWN, Kenneth W. Brown (The Everett I. Brown Company), Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 736

422 N.E.2d 736

Thelma Marie HIATT, Appellant (Plaintiff Below), v. Eugene L. BROWN, Kenneth W. Brown (The Everett I. Brown Company), Appellees (Defendants Below).

No. 2-1279A392.

Court of Appeals of Indiana, Second District.

June 30, 1981.

William H. Sparrenberger, Indianapolis, Paul G. Smith, Smith, Pearce & Howard, Noblesville, for appellant.

Sidney Mishkin, Mishkin, Eaglesfield, Darst & Grossman, Indianapolis, John D. Proffitt, Campbell, Kyle & Proffitt, Noblesville, for appellees.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiff-appellant Thelma Marie Hiatt (Hiatt) appeals from a summary judgment granted in favor of defendants-appellees Eugene L. Brown, et al., (Brown) in a negligence action, claiming a genuine issue of material fact existed as to whether architect Brown proximately caused her injuries suffered when she was blown from a vehicular/pedestrian ramp by the blast from a jet airplane at Indianapolis International Airport.

Judgment reversed.

FACTS

Distilled from the pleadings, depositions, answers to interrogatories, admissions, and affidavits, are these facts and inferences therefrom.

On the morning of April 28, 1970, Thelma Marie Hiatt (Hiatt) was walking up a vehicular/pedestrian ramp leading from the ground level to the second level of Indianapolis International Airport (formerly Weir Cook Airport). She expected to board a Trans-World Airlines (TWA) flight to Kansas City by entering the passenger check-in area located at the top of the ramp and then proceeding to the boarding gate.

Unfortunately she never reached the top of the ramp because the jet blast from a nearby TWA airplane blew her down the pedestrian walk and across the surface of the adjoining street, inflicting serious injuries upon her person. They consisted of a cerebral concussion; cranial-facial lacerations; severed nerves; fracture of the left mandible; loss of several teeth; severe shock; permanent scarring and numbness of facial areas; loss of hair; permanent damage to her teeth, jaws, and mastication process; and continuing pain.

In 1964, the Indianapolis Airport Authority (IAA) had contracted with Brown to prepare plans and specifications for the expansion of the existing terminal building. Article 3 of the contract provided that the drawings and specifications were to be "for the complete general erection of said project ready for use, all according to the best building practice, as approved by the owner." Record at 186. To be described in the drawings and specifications were "walks, ramps, drives, parking areas, and other work and equipment necessary to render the project suitable for occupancy ...." Id. (emphasis added).

Not contemplated specifically in the contract was any alteration to the vehicular/pedestrian ramp in question, which was already part of the existing terminal building. However, an architect with experience designing airports testified that under the terms of the contract Brown's responsibility included the design of the ramp as part of the overall expansion of the airport.

As the expansion to the terminal was designed, and eventually constructed, a TWA aircraft arrival/departure gate was placed near the existing ramp. It was thought at the time the airport terminal addition was designed that all airlines would employ the nose-in/push-out operation in loading and unloading, which required tugs to be used to push the aircraft toward the terminal on arrival or pull it away from the terminal (and the ramp) on departure. In November and December 1965 Brown discussed "jet blast problems" with TWA and representatives of IAA, and sometime during late 1965 or early 1966, Brown discovered that TWA intended to use a taxi-in/taxi-out operation, thereby subjecting the unprotected ramp to jet blast (exhaust) emanating from arriving and departing TWA aircraft.

Brown submitted his plans for approval in December 1965, IAA accepting them in the spring of 1966. Whether IAA approved Brown's design before Brown learned of TWA's taxi-in/taxi-out plans, whether Brown learned of the taxi-in/taxi-out operations intended before he submitted the plans, and whether TWA and IAA knew of the need for jet blast protection before the plans were submitted or approved, is unclear from the record. Yet, there was still time to make design changes during the construction phase. And in fact numerous change orders to the design were permitted during construction. Nonetheless, Brown did not request change orders for the construction of jet blast protection fences, as existed at other major airports.

Expert testimony by deposition was to the effect that Brown did not follow ordinary standards of architectural practice in failing to study available information regarding the jet blast problem. Differently stated, Brown did not meet his duty as an architect to use ordinary and reasonable care in designing the terminal expansion.

IAA accepted the completed terminal building addition as designed by Brown in October, 1967; TWA began using a taxi- Despite the known dangerous design and the known injuries to personal property, neither TWA nor IAA acted to warn pedestrians of the danger or otherwise take steps to prevent future injuries. The jet blast danger could have been eliminated immediately if TWA had changed to a nose-in/push-out operation or if a protective fence had been built.

in/taxi-out operation without jet blast protection for the ramp. Numerous incidents of personal and property damage subsequently resulted from the jet blast of nearby TWA aircraft engulfing the ramp.

Hiatt filed a claim against Brown, TWA, and IAA, seeking damages in the sum of $200,000.00. A settlement was reached between TWA, IAA, and Hiatt for $50,000.00. The claim against Brown was then pursued. Concluding that any negligence of Brown did not proximately cause Hiatt's injuries, the trial court granted Brown's motion for summary judgment against Hiatt, saying in part:

1. The conduct of the Airport Authority and TWA as set forth above constituted the intervention of an independent human agency which had the effect of breaking the chain of causation between any negligence of Brown and the plaintiff's injury. Brown is relieved of liability because TWA utilized and the Airport Authority permitted a taxi in-taxi out parallel parking operation by jet planes at Gate 31 on and before April 28, 1970 and because Airport Authority elected to operate and permit the operation of the facilities without the existence of jet blast protection for persons on the elevated roadway when both the Airport Authority and TWA well knew and had discussed the jet blast danger to such persons after the expanded terminal building was accepted and at least eleven months before plaintiff was injured. See, for example, Travis v. Rochester Bridge Co. (1919) 188 Ind. 79, 122 N.E. 1, Stapinski v. Walsh Construction Co. (1978) Ind.App., 383 N.E.2d 473.

2. Alternatively and as a separate and independent ground of decision, the Court concludes that any negligence of Brown in failing to investigate or design jet blast protection for the elevated roadway as a part of its December 7, 1964 contract for the terminal expansion and modernization did no more than furnish a condition or give rise to the occasion by which the plaintiff's injury was made possible and the conduct of the Airport Authority and TWA as set forth above was the active, direct, independent, effective and intervening cause of the plaintiff's injury. See, for example, Wilcox v. Urschel (1936) 101 Ind.App. 627, 200 N.E. 465, Slinkard v. Babb (1953) 125 Ind.App. 76, 112 N.E.2d 876, Schroer v. Edward J. Funk & Sons, Inc. (1968) 142 Ind.App. 223, 233 N.E.2d 680.

Record at 543. From this entry of summary judgment, appeal is taken.

ISSUE

Is there a genuine issue of material fact as to whether Hiatt's injuries were proximately caused by Brown's negligence? ¹

PARTIES' CONTENTIONS Both parties appear to concede for the purposes of this appeal that Brown was negligent in designing the terminal expansion.

Hiatt contends that the lack of privity between Brown and Hiatt is not a bar to a negligence action by an injured third party who was a stranger to the architect-owner relationship, citing to section 385 of the Restatement (Second) of Torts (1965) and to cases establishing exceptions to the privity rule in Indiana law. As to proximate cause, Hiatt says even if it is assumed that the conduct of TWA and IAA was an intervening cause of Hiatt's injuries, Brown still proximately caused her injuries because the intervention of TWA and IAA was foreseeable.

Brown counters that, even if lack of privity is not a bar to liability pursuant to section 385 of the Restatement, the conduct

of TWA and IAA is an intervening cause which under section 385 acts to release Brown from liability. Hiatt's foreseeability argument is not addressed by Brown.

DECISION

CONCLUSION We conclude that there is a genuine issue of material fact as to whether Brown proximately caused Hiatt's injuries, i. e., whether the intervening conduct, or lack of it, was foreseeable.

A. Standard of Review

For those with a penchant for repetition, we repeat familiar principles. Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C); Papp v. City of Hammond, (1967) 248 Ind. 637, 230 N.E.2d 326; Boswell v. Lyon, (1980) Ind.App., 401 N.E.2d 735; Tabani v. Hester, (1977) Ind.App., 366 N.E.2d 193. A fact is "material" for the purposes of summary judgment if it facilitates the resolution of any of the issues involved. Brandon v. State, (1976) Ind., 340 N.E.2d 756; Richards v. Goerg Boat & Motor Company, (1979) Ind.App., 384 N.E.2d 1084. Summary judgment also is improper if different...