Jones v. City of Logansport

• Citation: 436 N.E.2d 1138
• Decision Date: 24 June 1982
• Docket Number: No. 3-781A181,3-781A181
• Parties: Michael JONES, Appellant (Plaintiff Below), v. CITY OF LOGANSPORT; Clyde E. Williams and Associates, A Corporation; Zimpro, Inc., A Division of Sterling Drug Company, A Corporation, Appellees (Defendants Below), v. The GRUNAU COMPANY, INC., (Third Party Defendant Below).
• Court: Court of Appeals of Indiana

Page 1138

436 N.E.2d 1138

Michael JONES, Appellant (Plaintiff Below), v. CITY OF LOGANSPORT; Clyde E. Williams and Associates, A

Corporation; Zimpro, Inc., A Division of Sterling

Drug Company, A Corporation, Appellees (Defendants Below), v. The GRUNAU COMPANY, INC., (Third Party Defendant Below).

No. 3-781A181.

Court of Appeals of Indiana, Third District.

June 24, 1982.

Floyd F. Cook, Kokomo, Smith Helmerick & Smith, Lafayette, for appellant.

Tom F. Hirschauer, Logansport, for appellee City of Logansport.

Paul E. Becher, Elkhart, for appellee Clyde E. Williams and Associates, Inc.

Arthur G. Surguine, Fort Wayne, for appellee Zimpro, Inc., A Division of Sterling Drug Co., A Corp.

STATON, Judge.

In 1977, the City of Logansport, Indiana was in the process of having a waste treatment plant constructed. The construction was divided into two divisions. Each division had a prime contractor and several subcontractors.

Michael Jones was an apprentice plumber. He was employed by a subcontractor on the construction division known as Grunau. Jones was instructed to help move a large pump into a building. As he was holding a cable attached to a crane, the crane either came into contact with high voltage electrical lines or was close enough to the lines for the electricity to arc from the electrical lines to the crane. ¹

Jones filed a complaint alleging that he had suffered serious, electrical burn injuries as a result of the negligence of the City of Logansport; Clyde E. Williams and Associates; Zimpro, Inc., a Division of Sterling Drug Company, a corporation; Geupel DeMars Company; and Speedway Crane Company. ² Williams was not a defendant at the trial because its motion for summary judgment had been granted. The jury found in favor of Logansport and Zimpro and against Jones.

On appeal, Jones raises over twenty issues. As we affirm in part and reverse and remand in part, the issues that need be discussed can be stated as follows:

(1) Did the trial court err by granting Williams' summary judgment motion?

(2) Was a nondelegable duty owed to Jones by both Zimpro and Logansport such that the trial court erred when it refused to give certain instructions concerning the nondelegable duty?

I. Summary Judgment

Clyde E. Williams and Associates and Logansport had executed a contract whereby Williams was the authorized representative of Logansport. Williams furnished Logansport with a full time, resident project representative at the project site during construction. In its summary judgment motion, Williams stated that it could not be found liable because it did not owe any duty of care to Jones. Jones argues that the trial court erred when it granted the motion for summary judgment.

The purpose underlying the summary judgment procedure is to terminate those causes of action which have no factual dispute and which may be determined as a matter of law. This procedure is an aid in eliminating undue burdens upon litigants and exposing spurious causes. However, the summary judgment procedure must be applied with extreme caution so that a party's right to the fair determination of a genuine issue is not jeopardized; mere improbability of recovery by the plaintiff does not justify summary judgment for a defendant. Bassett v. Glock (1977), Ind.App., 368 N.E.2d 18, 20-21.

The summary judgment procedure is an application of the law to the facts when no factual dispute exists. The party seeking the summary judgment, therefore, has the burden to establish that there is no genuine issue as to any material fact. Any doubt as to a fact, or an inference to be drawn therefrom, is resolved in favor of the party opposing the motion for summary judgment. Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, 1184.

A fact is material if its resolution is decisive of either the action or a relevant secondary issue. Lee v. Weston (1980), Ind.App., 402 N.E.2d 23, 24. The factual issue is genuine if it can not be foreclosed by reference to undisputed facts. That is, a factual issue is genuine if those matters properly considered under TR. 56 evidence a factual dispute requiring the trier of fact to resolve the opposing parties' differing versions. Stuteville v. Downing (1979), Ind.App., 391 N.E.2d 629, 631.

Although TR. 56 permits the introduction of affidavits, depositions, admissions, interrogatories and testimony to aid the court in the resolution of the motion for summary judgment, the procedure involved is not a summary trial. Bassett v. Glock, supra. In determining whether there is a genuine issue of material fact, the court considers those facts set forth in the non-moving party's affidavits as true, and liberally construes the products of discovery in favor of the same party. And finally, all pleadings, evidence, and inferences therefrom are viewed in the light most favorable to the non-moving party. Poxon v. General Motors Acceptance Corp., supra. In reviewing a grant of summary judgment, this Court uses the same standard applicable to the trial court. Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App., 384 N.E.2d 1084, 1090 (trans. denied ). We must reverse the grant of a summary judgment motion if the record discloses an unresolved issue of material fact or an incorrect application of the laws to those facts. Id.

The initial question is whether a duty was owed to Jones by Williams. The court must determine as a matter of law if a legal relationship exists from which a duty of care arises. Walters v. Kellam & Foley (1977), 172 Ind.App. 207, 360 N.E.2d 199, 205 (trans. denied ). Williams could have a duty of care imposed upon it either (a) by contract or (b) by voluntarily assuming a duty of care through its affirmative conduct. Clyde E. Williams & Associates, Inc. v. Boatman (1978), Ind.App., 375 N.E.2d 1138, 1141. If a duty of care is assumed through affirmative conduct, it must be determined exactly what has been undertaken because liability is no broader than the actual duty assumed. Board of Commissioners of Monroe County v. Hatton (1981), Ind.App., 427 N.E.2d 696, 699-700 (trans. pending ).

A. Contract

It is the duty of the court to interpret the contract so as to ascertain the intent of the parties. It must accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the provisions to be conflicting. Evansville-Vanderburgh School Corp. v. Moll (1976), 264 Ind. 356, 344 N.E.2d 831. The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases or even paragraphs read alone. Evansville-Vanderburgh School Corp., supra; Oser v. Commercial U. Ins Companies (1980), Ind.App., 409 N.E.2d 706. (trans. denied ).

In interpreting a written contract, the court will attempt to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties. Shahan v. Brinegar (1979), Ind.App., 390 N.E.2d 1036. If the contract is ambiguous ³ or uncertain in its terms and if the meaning of the contract is to be determined by extrinsic evidence, its construction is a matter for the fact finder. Rules of contract construction and extrinsic evidence may be employed in giving effect to the parties' reasonable expectations. Huntington Mut. Ins. Co. v. Walker (1979), Ind.App., 392 N.E.2d 1182; Shahan, supra. If, however, the ambiguity arises because of the language used in the contract and not because of extrinsic facts, then its construction is purely a question of law to be determined by the trial court. Huntington, supra; Clyde E. Williams & Assoc., Inc., supra.

Jones argues that Williams' contract with Logansport imposes upon Williams a duty of care towards Jones. Jones directs our attention to selected passages of the contract. Through this selective reading, Jones concludes Williams was required to exercise due care to make the premises reasonably safe and "to supervise the conduct of work methods and the implementation of plans and specifications with reasonable care."

When the complete contract is read, it is obvious that Williams was not responsible for the methods used in the construction of the project and that Williams was not responsible for the safety of employees of contractors or subcontractors. Section 1.5.3 of the contract states:

"(Williams will) make periodic visits to the site of the work to observe the progress and quality of the executed work to determine in general if the work is proceeding in accordance with the Contract Documents; he will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work; he will not be responsible for the methods used and sequences of construction; and he will not be responsible for the Contractor's failure to perform the construction work in accordance with the Contract Documents; but he will determine to his own satisfaction that the interests of the Owner generally are safeguarded; and during such visits and on the basis of his on-site observations as an experienced and qualified design professional, he will keep the Owner informed of the progress of the work by submitting written progress reports as required by the Owner, will endeavor to guard the Owner against defects or deficiencies in the work of Contractors, and may disapprove work as failing to conform to the Contract Documents." (Emphasis added.)

From the contract, it is clear ⁴ that Williams was employed to try to reduce the incidents of defective construction of the items being built; it was not employed to reduce negligent construction techniques. Williams was to "provide general engineering administration of the construction contract..." (Emphasis added.) Williams was not responsible for the safety of Jones. ⁵

Jones attempts to add additional duties to Williams by quoting Articles 28.3 and 28.5 of the contract between Zimpro and Logansport. Jones seems...