Hill v. Rieth-Riley Const. Co., Inc.
| Decision Date | 27 September 1996 |
| Docket Number | RIETH-RILEY,No. 71A03-9512-CV-418,71A03-9512-CV-418 |
| Citation | 670 N.E.2d 940 |
| Parties | Prod.Liab.Rep. (CCH) P 14,769 Kathryn A. HILL and Tommy L. Hill, Appellants-Plaintiffs, v.CONSTRUCTION CO., INC., and The Hoosier Co., Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Kathryn A. Hill and Tommy L. Hill appeal the grant of summary judgment in favor of the Rieth-Riley Construction Company and the Hoosier Company, Inc., claiming that the trial court erred by granting summary judgment despite the existence of genuine issues of material fact.
On November 11, 1992, Kathryn Hill was involved in a one-car accident on U.S. 31 in St. Joseph county. Kathryn was northbound when she veered off the roadway striking the buried end treatment of the east guardrail, causing the Chevrolet Blazer she was driving to flip onto its side. As a result of this accident, Kathryn's left arm was traumatically amputated.
The segment of U.S. 31 where Kathryn's accident occurred had been resurfaced in 1988 by the Rieth-Riley Construction Company, Inc. ("Rieth-Riley"), an independent contractor, pursuant to a contract with the Indiana Department of Transportation ("INDOT"). The contract called for Rieth-Riley to resurface the existing roadway and the gravel shoulder, and necessitated the removal and resetting of the guardrails to permit the resurfacing of the shoulder. Rieth-Riley sub-contracted with the Hoosier Company, Inc. ("Hoosier") to temporarily remove and then reset the guardrails after the resurfacing was completed. Neither Rieth-Riley nor Hoosier was in the business of manufacturing or installing guardrails at that time.
When the resurfacing began in 1988, the guardrail, upon which Kathryn's accident occurred, used the buried end treatment. Hoosier removed the guardrail while Rieth-Riley resurfaced the road and then reset the guardrail in the same location, adjusting the guardrail three inches upward to compensate for the three inches of added surface. The guardrail was reset with the same buried end treatment previously employed. INDOT inspected and then accepted the work of Rieth-Riley and Hoosier, and released them from further maintenance in a letter dated January 15, 1989. Rieth-Riley and Hoosier did no further work on U.S 31 or the guardrails after this letter.
On October 12, 1993, Kathryn and her husband Tommy filed their original complaint, naming INDOT as the sole defendant. The Hills subsequently amended their complaint to add Rieth-Riley and Hoosier as defendants. The amended complaint alleged strict liability under Indiana's Product Liability Act, I.C. §§ 33-1-1.5-1 et. seq., a violation of Indiana's nuisance statute, I.C. § 34-1-52-1, and a negligence claim against both Rieth-Riley and Hoosier.
Rieth-Riley filed a motion for summary judgment pursuant to Trial Rule 56(C) on July 26, 1994, and Hoosier filed a motion for summary judgment on September 23, 1994. On August 21, 1995, the trial court granted both Rieth-Riley's and Hoosier's motions for summary judgment. The Hills appealed the trial court's order on September 20, 1995.
The Hills present one (1) issue on appeal that we restate as follows:
1. Whether the trial court erred in finding no genuine issue of material fact existed for each of the Hills' three complaints against Rieth-Riley and Hoosier.
In reviewing an appeal of summary judgment, "the appellate court faces the same issues, which we analyze in the same way as a trial court does." Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.1992). This standard requires that we "consider all the designated material, the pleadings, affidavits, depositions, admissions, answers to interrogatories, and testimony, in the light most favorable to the nonmovant to determine whether a genuine issue of material fact remains for resolution by a trier of fact." United Farm Bureau Insurance Co. v. Schult, 602 N.E.2d 173, 174 (Ind.Ct.App.1993), reh'g. denied. "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue." Place v. Sagamore Center, Inc., 604 N.E.2d 671, 673 (Ind.Ct.App.1992), trans. denied. Because the trial court did not provide any rationale for granting summary judgment, it is important to note that "[s]ummary judgment will be affirmed if it is sustainable upon any theory supported by the record." Golba v. Kohl's Dept. Store, Inc., 585 N.E.2d 14, 15 (Ind.Ct.App.1992), reh'g. denied, trans. denied.
The Hills first claim that both Rieth-Riley and Hoosier are strictly liable for Kathryn's injuries under Indiana's Product Liability Act, I.C. §§ 33-1-1.5 et. seq. because they manufactured a component of a dangerously designed and defectively installed product. The Hills claim that the installation of 31 new concrete plugs and the possible replacement of rusted rails make both Rieth-Riley and Hoosier sellers of a product. Rieth-Riley and Hoosier dispute this claim, arguing instead that they were merely service providers and, therefore, not subject to Indiana's Product Liability Act.
To be strictly liable under Indiana's Product Liability Act, both Rieth-Riley and Hoosier must fall within the definition of sellers of a product. Indiana Code § 33-1-1.5-2(5) defines a seller as "a person engaged in the business of selling or leasing a product for resale, use, or consumption." The Code then defines a product as I.C. § 33-1-1.5-2(6) (emphasis added). The Hills argue that the installation of 31 concrete plugs and the possible replacement of "some" rusted rails create a factual issue of whether Rieth-Riley and Hoosier were sellers of a product. 1
Rieth-Riley and Hoosier argue that the removal and resetting of the guardrails, to facilitate the resurfacing of U.S. 31, was merely a service and not within the definition of a product. In its definition of a product, Indiana's Code specifically states that transactions that are "wholly or predominantly" a service do not fall under the Product Liability Act. I.C. § 33-1-1.5-2(6). "Predominantly" is defined as "for the most part." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 927 (9th ed. 1983). Rieth-Riley and Hoosier's contract with INDOT required the removal and resetting of thousands of feet of guardrail as an incident to the resurfacing of the highway. The Hills admit that the resurfacing was a service. (Appellant's Brief p. 14). Even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the Hills have presented no evidence that this contract was not "for the most part" about the service of resurfacing the roadway.
Although no Indiana court has directly addressed the issue of whether the removal and resetting of a guardrail constitutes a service, the court in Sapp v. Morton Bldgs., Inc., 973 F.2d 539 (7th Cir.1992) dealt with a similar situation. In Sapp, the issue was whether the remodeling of a barn into a stable was a service or the sale of a product under Indiana's Product Liability Act. Because of the design of the existing barn, all of the materials, except doors and windows, used to remodel the barn were manufactured and custom fitted at the site by Morton Buildings. Despite the extensive use of custom manufactured materials throughout the barn, the court ruled that "the transaction was primarily a sale of a service in the form of the remodeling of the barn to convert it to a stable." Id. at 542. The court then affirmed the trial court's grant of summary judgment in favor of the defendant, Morton Buildings. In the present case, the resurfacing of the road is analogous to the remodeling of the barn. But here, new materials were used much less extensively than in Sapp, making the resurfacing project even more predominantly a service than the remodeling of the barn. The incidental installation of the new concrete plugs and rails does not change the predominate thrust of this contract from the provision of a service into a product contract.
The Hills' product liability claim must fail because the removal and resetting of the guardrail does not fall within the statutory definition of a product for the purposes of the Product Liability Act.
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