Howard v. H.J. Ricks Const. Co., Inc., No. 55A04-8608-CV-261

• Docket Nº: No. 55A04-8608-CV-261
• Citation: 509 N.E.2d 201
• Case Date: June 18, 1987
• Court: Court of Appeals of Indiana

Page 201

509 N.E.2d 201 Catherine Jo HOWARD as Administratrix of the Estate of
Ronald E. Howard, Deceased, and Catherine Jo
Howard, Individually, Appellant (Plaintiff Below),
v.
H.J. RICKS CONSTRUCTION COMPANY, INC., Appellee (Defendant Below). No. 55A04-8608-CV-261. Court of Appeals of Indiana,
Fourth District. June 18, 1987.
Rehearing Denied July 20, 1987.

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Howard S. Young, Jr., Young & Young, Indianapolis, Robert E. Lybrook, McNutt, Hurt & Blue, Martinsville, for appellant.

Michael V. Gooch, Edward R. Hannon, Indianapolis, for appellee.

CONOVER, Presiding Judge.

Plaintiff-Appellant Catherine Jo Howard (Catherine), individually, and as administratrix of the estate of Ronald E. Howard (Ronald), appeals the trial court's grant of summary judgment favoring Defendant-Appellee H.J. Ricks Construction Company, Inc. d/b/a Northgate Shopping Center, in an action for damages pursuant to the Wrongful Death Statute. ¹

We affirm.

ISSUES

Catherine raises one issue for our review. Restated, the issue is:

1. whether the trial court erred by finding the Shopping Center's warning of a latent danger to the independent contractor's supervisor was, as a matter of law, sufficient to discharge its duty to warn an employee of the independent contractor of the same danger.

We raise two additional issues sua sponte, namely,

2. whether the Shopping Center owed any duty to Ronald as to the high tension lines, and

3. whether Ronald was contributorily negligent as a matter of law.

We do so because we will sustain the trial court's judgment on any legal theory or basis consistent with the facts disclosed by the record. ²

FACTS

H.J. Ricks Construction Company, Inc. is the owner of Northgate Shopping Center (Shopping Center), located north of Greenfield, Indiana. Howard Ricks (Ricks) is its president. In November of 1983, Ricks contracted with Blackmore & Buckner Roofing, Inc. to repair the roof on a theater building located in the Shopping Center complex. Before executing the contract, Ricks and Bill Moore (Moore), Blackmore and Buckner's roofing crew supervisor, examined the roof. While doing so, Ricks pointed out to Moore the bare, low-hanging electric supply lines running from Greenfield Power and Light's electric transmission lines in the street right-of-way along the east end of the theater building. Because of these lines, Ricks and Moore made specific arrangements to have Blackmore and Buckner's employees gain access to the theater roof on the north end of the building from a bank drive-through lane to avoid those low-hanging wires. They made arrangements to have the work done on a Wednesday, when the bank would be closed.

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Moore intended to meet with his crew before work on Wednesday to advise them of the warning, and to tell them to set up on the side of the building away from the wires. Unfortunately, on the Wednesday the project was to begin, Moore arrived late for work but Moore's crew arrived on time. One of them, Ronald, placed an aluminum extension ladder on the east end of the building just beneath the high tension electrical supply lines, contrary to the plan Moore and Ricks previously had agreed upon and arranged. Ronald then climbed the ladder to the roof. When he got to the top, his head touched one of the low-hanging high tension lines. It carried 7,200 volts of electricity. Ronald was severely shocked and died as a result.

Catherine filed this cause of action against the Shopping Center, alleging its negligence proximately caused Ronald's wrongful death. The Shopping Center's motion for summary judgment was sustained by the trial court.

Catherine appeals.

DISCUSSION AND DECISION

I. Summary Judgment

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Creighton v. Caylor-Nickel Hospital, Inc. (1985), Ind.App., 484 N.E.2d 1303, 1305-1306, trans. denied. The burden is on the moving party in a summary judgment motion to establish the lack of any genuine issue of material fact. Ancich v. Mobil Oil Corp. (1981), Ind.App., 422 N.E.2d 1320, 1322, reh. denied.

When reviewing the grant of a motion for summary judgment, we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App., 476 N.E.2d 155, 158. Therefore, we consider the same matters as it does. Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154, 163.

Of importance here: we are not precluded from affirming a summary judgment where the final result is correct, although it may have been rendered upon a different theory than that upon which we sustain it. Celina Mutual Ins. Co. v. Forister (1982), Ind.App., 438 N.E.2d 1007, 1012. Restated, summary judgment will be affirmed if sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 56; Havert v. Caldwell (1983), Ind., 452 N.E.2d 154, 157, reh. denied.

II. Premises Liability

The parties below and the trial court treated the high tension lines hanging in close proximity to the top of the theater's east wall as a latent defect in the premises. The trial court cited our holding in Louisville Cement Co. v. Mumaw (1983), Ind.App., 448 N.E.2d 1219, trans. denied, as authority for its entry of summary judgment in favor of the Shopping Center because Ricks had pointed out that condition to Moore, Blackmore and Buckner's roofing crew supervisor, during their inspection tour of the roof.

There are two differences in ultimate fact between this case and Louisville Cement. In the latter (a) we assumed the fuel oil inside the supply line was a hidden or latent defect, and (b) that line had been owned and controlled by the company prior to commencement of the cement plant's dismantling. In this case, however, the low-hanging high tension lines and their close proximity to the theater building's east wall (a) were clearly visible, thus patent, and (b) were maintained by the City of Greenfield and Greenfield Power and Light (R. 13-14), not the Shopping Center. Thus, Louisville Cement is inappropriate authority for entry of the summary judgment below. Different legal principles apply here.

In a negligence action, the burden of proving negligence is upon the plaintiff. Plan-Tec, Inc. v. Wiggins (1983), Ind.App., 443 N.E.2d 1212, 1218; Hi-Speed Auto Wash, Inc. v. Simeri (1976), 169 Ind.App. 116, 346 N.E.2d 607, 608. In order to prevail upon an allegation of negligence, the

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plaintiff's evidence must be sufficient to demonstrate the existence of all the requisite elements of a cause of action. Koroniotis v. LaPorte Transit, Inc. (1979), Ind.App., 397 N.E.2d 656, 659. Specifically, the plaintiff must establish (1) the existence of a duty owing from the defendant to the plaintiff, (2)...