Lukowski v. Vecta Educational Corp., 3-378A55

• Docket Nº: No. 3-378A55
• Citation: 401 N.E.2d 781
• Case Date: March 27, 1980
• Court: Court of Appeals of Indiana

Page 781

401 N.E.2d 781

Genevieve LUKOWSKI, Individually and as Administratrix of

the Estate of Sigmund C. Lukowski, Deceased, Plaintiff-Appellant, v. VECTA EDUCATIONAL CORPORATION and James M. Turner, d/b/a

James M. Turner & Associates, Inc., Defendants-Appellees.

No. 3-378A55.

Court of Appeals of Indiana, Third District.

March 27, 1980.

Frank J. Galvin, Jr., Galvin & Galvin, Hammond, for plaintiff-appellant.

John M. Kappas, Merrillville, Marlatt & Kappos, Richard A. Mayer, Spangler, Jennings, Spangler & Dougherty, Gary, for defendants-appellees.

GARRARD, Presiding Judge.

Suit was initiated by the appellant, Genevieve Lukowski, individually and as administratrix of her deceased husband's estate seeking damages for personal injuries suffered when her husband fell from the top of the balcony bleachers in the Hammond High School gymnasium during the course of a basketball game on November 24, 1972. ¹ Named as defendants were the School City of Hammond, Vecta Educational Corporation, and James M. Turner, d/b/a James M. Turner and Associates, Inc. The School City operated Hammond High School and maintained its facilities. Vecta had contracted with the School City to perform some work for the renovation of the high school, including the manufacture and installation of bleachers for the gymnasium. Turner was the architect for the project. At the time of the incident, the top row of the balcony bleachers contained no back railing. It was this deficiency that formed the basis of Mrs. Lukowski's claims. All three defendants were charged with negligence. In addition, relief against Vecta was predicated on strict liability in tort.

The two claims were venued and finally consolidated for trial in the Pulaski Circuit Court. The actions against the School City of Hammond were voluntarily dismissed after a settlement was reached. A jury trial commenced with the remaining defendants on September 12, 1977. After the plaintiff had presented her case and rested, Vecta and Turner moved for judgment on the evidence pursuant to Indiana Rules of Procedure, Trial Rule 50. The trial court granted Turner's motion and entered judgment thereon. Vecta's motion was granted on the strict liability claim but was submitted to the jury on the negligence claim. The jury returned a verdict in favor of Vecta and judgment was entered accordingly. After the denial of her motion to correct errors, Mrs. Lukowski timely perfected an appeal to this court. She does not challenge the jury verdict on the negligence count against Vecta. She does appeal the granting of the Trial Rule 50 motions. She contends that sufficient evidence was introduced to avoid judgments on the evidence.

With respect to the appropriate standard of review, this court has observed,

Indiana cases dealing with judgment on the evidence are consistent in the results reached. However, the language employed in articulating the standard of review is somewhat confusing and apparently inconsistent. Compare, e. g., the Court of Appeals and Supreme Court opinions in Miller v. Griesel (1973), Ind.App., 297 N.E.2d 463, transferred (1974), 261 Ind. 604, 308 N.E.2d 701, with those in Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849; and Vernon Fire & Cas. Ins. Co. v. Sharp (1976), Ind., 349 N.E.2d 173.

What the cases clearly suggest, however, is that the court is not free to indulge in the fact finder's function of weighing the evidence and resolving credibility determinations to grant a judgment on the evidence. On the other hand, unless there is some evidence of probative value (i. e., carrying the quality of proof and having fitness to induce conviction) upon each element of the claim, the motion is properly granted.

Evidence, of course, is direct or circumstantial. There is normally little difficulty in determining whether direct evidence of probative value has been adduced upon an issue. The problem arises in the area of circumstantial evidence. If the ultimate fact in question exists as a reasonable inference from the circumstantial evidence, a TR 50 motion should be denied. Conversely, if the circumstantial evidence fails to create a reasonable inference of the ultimate fact, but merely leaves the possibility of its existence open for surmise, conjecture or speculation, then there is no evidence of probative value as to that ultimate fact, and the motion may be granted. As Judge Buchanan stated in Mamula, the trick is to tell the difference, and the answer depends upon the facts and circumstances of a given case.

McKeown v. Calusa (1977), Ind.App., 359 N.E.2d 550, 552-53 (footnote omitted). Thus, a Trial Rule 50 judgment for a defendant is proper only where the plaintiff has failed to present some evidence of probative value on one or more of the essential elements of his claim. Accord, Walters v. Kellam & Foley (1977), Ind.App., 360 N.E.2d 199.

Mrs. Lukowski's assertion of negligence against Turner relies upon two claims. First, she contends that Turner negligently failed to supervise the construction of the gymnasium bleachers by Vecta, specifically that he failed to require conformance with the shop drawings which called for the placement of guardrails at the top of the balcony seats. The testimony disclosed that two days before the accident, Turner visited the worksite and was assured by the superintendent on the job that everything would be ready by game time. Turner did not go back to the gymnasium the day of the game. It is Mrs. Lukowski's contention that Turner should have returned to make sure that the railings were placed in their proper position and that, had he done so and noticed their absence, he could have stopped the balcony bleachers from being used. In granting Turner's motion for judgment on the evidence, the trial court specifically alluded to a lack of negligent causation. However, it is not clear whether the court based its decision on a lack of duty owing from Turner to Mrs. Lukowski's husband or whether such a duty was assumed but no evidence was presented to show its breach.

A similar question was presented in Walters v. Kellam & Foley (1977), Ind.App., 360 N.E.2d 199. There, the plaintiff, a sheet metal worker on a construction project, was injured while installing certain duct material above a heating and ventilating unit in a gymnasium. During the course of his work, he dropped a tool into the unit below which he attempted to retrieve by lowering himself into the unit and placing his feet on the bottom panel. The panel broke loose, and plaintiff fell approximately thirty feet. His suit charged that the architect was negligent for, among other things, failing to properly supervise the work. Specifically, the architect allegedly failed to inspect the unit and reject it for safety reasons and failed to warn the plaintiff of the latent dangers existing in that unit.

In determining the propriety of a Trial Rule 50 judgment for the architect, Judge Sullivan recognized that the initial question was whether a duty was owed to the plaintiff and that it was ordinarily a question of law for the court to ascertain if there was a legal relationship between the parties that would give rise to such a duty. See also Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701. With regard to an architect's duty to supervise, he noted,

To appropriately define the duty to supervise, the obligation to assure that construction conforms to the authorized plans is to be distinguished from the obligation to assume responsibility for the safety of persons lawfully on the construction site. See Walker v. Wittenberg, Delony & Davidson, Inc., supra, (241 Ark. 525, 412 S.W.2d 621) at 630; Parks v. Atkinson (1973), 19 Ariz.App. 111, 505 P.2d 279, 283; Miller v. DeWitt (1976), 37 Ill.2d 273, 226 N.E.2d 630, 638; 59 A.L.R.2d 869; Restatement 2d, Torts, § 414, Comments a & c; see generally Jones v. Indianapolis Power & Light Co. (2d Dist. 1973), 158 Ind.App. 676, 304 N.E.2d 337, 343; Bruemmer v. Clark Equipment Co. (1965), 7th Cir., 341 F.2d 23, 25; Farmers State Bank of Valparaiso v. Dravo Corp. (1963), 7th Cir., 321 F.2d 38, 41.

360 N.E.2d at 207. After examining the architect's on-site conduct and the contractual provisions governing his responsibilities, which are similar to the contractual provisions in the case at bar, Judge Sullivan concluded that the evidence was insufficient to establish a duty to supervise day-to-day work methods so as to maintain the safety of the workman. We reach the same conclusion concerning plaintiff's decedent.

Although the contract between the School City and Turner is not set forth in the record, Turner testified that his contract did not require him to have someone on the jobsite continuously and that his supervisory presence was required only occasionally and as the need arose. He testified that his responsibility was to prepare plans and specifications and to generally observe the construction as it progressed for the purpose of seeing that the work conformed with those plans and specifications. Weekly meetings were held with the School City and contractors to discuss the progress and any problems. These meetings were discontinued about a month before the incident because "the job was about done."

In addition, the record does contain the contract between the School City and Vecta. Part of that contract includes a document entitled "General Conditions of the Contract for Construction." The duties of the architect are specifically detailed therein. The architect was to "make periodic visits to the site to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work (was) proceeding in accordance with the Contract Documents." However, he was not "required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work." In addition, he was not "responsible for construction means, methods, techniques, sequences or procedures, or for...