Kostidis v. GENERAL CINEMA CORP., OF INDIANA
| Decision Date | 17 August 2001 |
| Docket Number | No. 64A05-0012-CV-521.,64A05-0012-CV-521. |
| Parties | John KOSTIDIS, Appellant-Plaintiff, v. GENERAL CINEMA CORP. OF INDIANA; Schostak Brothers & Company, Inc., Sierra Financial, Ltd., County Seat Limited Partnership; Lake and Porter County Asphalt Maintenance Co., Appellees-Defendants. |
| Court | Indiana Appellate Court |
John E. Hughes, Kevin G. Kerr, Hoeppner Wagner & Evans, Valparaiso, IN, Attorneys for Appellant.
David P. Jones, Newby, Lewis, Kaminski & Jones, LaPorte, IN, James L. Clement, Jr., Emery Clement & Schmidt, Merrillville, IN, Attorneys for Appellees.
John Kostidis, plaintiff below, appeals the court's entry of summary judgment in favor of defendant Lake and Porter County Asphalt Maintenance Company, Inc. ("L & P"), and the court's judgment, entered on the jury's verdict, in favor of General Cinema Corporation of Indiana, Schostak Brothers & Company, Inc., Sierra Financial, LTD., County Seat Plaza, and County Seat Limited Partnership, all defendants below. We affirm.
The issues presented by Kostidis include:
I. Did the trial court err in granting L & P's motion for summary judgment?
II. Did the trial court abuse its discretion by giving certain instructions, and by refusing others?
On February 2, 1996, Kostidis went to see a movie with his family at the General Cinema Theater in the County Seat Plaza strip mall in Valparaiso, Indiana. As he was walking from his car to the theater, Kostidis slipped and fell on a patch of ice in the parking lot, landing on his outstretched hand. County Seat Plaza was owned by County Seat Limited Partnership, which was itself a subsidiary of Sierra Financial Ltd. Sierra Financial, through County Seat Limited Partnership, hired Schostak Brothers to manage County Seat Plaza. Schostak Brothers hired L & P to remove ice and snow from the parking lot.
Kostidis filed his complaint on July 10, 1997, and an amended complaint on December 17, 1997, claiming that he sustained personal injuries as a result of the defendants' negligent failure to keep the parking lot safely clear of ice and snow.1 On July 6, 2000, L & P filed its motion for summary judgment, arguing that it could not be liable because its work had been accepted by Schostak Brothers. The trial court granted this motion on October 2, 2000. The case proceeded to trial against the remaining defendants on October 10, 2000, and the jury returned its verdict on October 17, 2000, determining that Kostidis was 51% at fault, and apportioning the remaining fault among the defendants. The court entered judgment on the jury's verdict that day.
Kostidis appeals.
The trial court entered summary judgment in favor of L & P in response to its argument that its duty to Kostidis terminated when Schostak Brothers accepted L & P's work. Kostidis argues that Schostak Brothers's alleged acceptance of the work is a question of fact requiring a trial. Kostidis further contends that even if L & P's work was accepted, the contract between Schostak Brothers and L & P specifically precluded the termination of L & P's liability for damages to third parties upon Schostak Brothers's acceptance of L & P's work.
Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. When reviewing a decision to grant summary judgment, this court applies the same standard as the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). We must determine whether there is a genuine issue of material fact requiring trial, and whether the moving party is entitled to judgment as a matter of law. Id. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id.
A party seeking summary judgment bears the burden to make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. American Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind.Ct.App. 1996). Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the non-moving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id. A defendant in a negligence action may obtain summary judgment 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. Jacques v. Allied Bldg. Services of Indiana, Inc., 717 N.E.2d 606, 608 (Ind.Ct. App.1999).
trans. denied. One inch of snow fell on January 29, 1996, and L & P plowed and salted the parking lot that evening. L & P accordingly had a duty to perform this work with reasonable care.
In addition, a duty of care may be assumed. In general, when a person "`undertakes . . . to render services to another which he should recognize as necessary for the protection of a third person,'" he is "`subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking. . . .'" Auler v. Van Natta, 686 N.E.2d 172, 175 (Ind.Ct. App.1997) (quoting RESTATEMENT (SECOND) OF TORTS § 324A, at 142 (1965)). Approximately one-third of an inch of snow fell on January 30. Although no additional snow had fallen, and though the total snowfall since its last plowing was less than one inch, L & P returned to the parking lot on January 31 to clear the snow that had fallen the previous day, and to put salt down in the area. L & P thus assumed a duty to perform its work on January 31 with reasonable care.
L & P, however, notes that an independent contractor generally owes no duty of care to third parties with regard to the contractor's work, and thus cannot be liable for injuries resulting from its work, after that work has been accepted by the general contractor or property owner. See Blake v. Calumet Const. Corp., 674 N.E.2d 167, 170 (Ind.1996)
.2 According to L & P, it owed Kostidis no duty as a matter of law at the time of the accident because the undisputed material evidence showed that Schostak Brothers accepted L & P's snow removal work the day before the accident.
The evidence designated to the trial court shows that Glen Miller, a Schostak Brothers employee, was responsible for inspecting the County Seat Plaza parking lot and adjacent sidewalks to determine whether those areas required maintenance or repairs. He toured the property approximately once each month to conduct his inspections. In snowy weather, he looked for conditions that might pose a safety hazard for patrons, including patches of ice in need of salting. Miller visited the parking lot on February 1, 1996, the day between L & P's most recent work and Kostidis's accident. If Miller had seen an area in need of further plowing or salting, he would have arranged for L & P to return to the property to perform the work. Neither Miller nor L & P, however, had any record or recollection that L & P was asked to return to the property to perform further work prior to Kostidis's accident.
Kostidis argues that this evidence did not establish, as a matter of law, that Schostak Brothers accepted L & P's snow removal work prior to Kostidis's his fall, and maintains that there are genuine issues of fact for trial regarding this question. Whether an owner or general contractor has accepted an independent contractor's work may be determined by reference to several factors, including 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. Blake, 674 N.E.2d at 171. The rule relieving independent contractors of liability upon the acceptance of their work is based on the notion that the party in control of a premises is generally in the best position to prevent harm to third persons. Thus, "[i]n 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." Id.
L & P relies on the factually similar case of Lynn v. Hart, 565 N.E.2d 1162 (Ind.Ct. App.1991), in support of its position that the designated evidence established, as a matter of law, that L & P cannot be liable because Schostak Brothers accepted L & P's work before the accident. In Lynn, as here, the plaintiff slipped and fell on a recently plowed parking lot. Id. at 1163. After the lot was plowed, the property owner rode across the area on his bicycle but experienced no problems and did not call the snow removal contractor and ask...
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