Peters v. Forster

• Decision Date: 25 June 2002
• Docket Number: No. 42A01-0109-CV-350.,42A01-0109-CV-350.
• Parties: Wayne A. PETERS and Helen Peters, Appellants-Plaintiffs, v. Donald FORSTER, Appellee-Defendant.
• Court: Indiana Appellate Court

770 N.E.2d 414

Wayne A. PETERS and Helen Peters, Appellants-Plaintiffs, v. Donald FORSTER, Appellee-Defendant.

No. 42A01-0109-CV-350.

Court of Appeals of Indiana.

June 25, 2002.

Reheaing Denied July 31, 2002.

Lane C. Siesky, Barber & Shoulders, Evansville, Indiana, Attorney for Appellants.

Daniel L. Siewers, Hart, Bell, Cummings, Ewing & Stuckey, Vincennes, Indiana, Attorney for Appellee.

OPINION

KIRSCH, Judge.

Wayne and Helen Peters appeal the trial court's grant of summary judgment in favor of Donald Forster. Upon appeal, the Peters claim that the trial court erred in granting Forster's motion for summary judgment on their claim of negligence, and raise the following restated issue: Does an independent contractor who performs work in knowing or negligent violation of applicable building codes owe a duty to third parties injured as a result of the defective condition where the work has been completed and accepted by the owner or general contractor.

We reverse.

FACTS AND PROCEDURAL HISTORY

In the summer of 1998, Earl and Avonda Hamm purchased from their daughter's neighbor a ramp to access their home. The Hamms were both in poor health, and Earl was bedridden in a hospital bed in the living room of the couple's home. Donald Forster, an independent contractor and landlord, agreed to have two of his employees transport and attach the pre-built ramp to the Hamm residence. The installation of the ramp was completed in a matter of hours, and Forster received approximately seventy-five dollars for the work. Forster testified that the ramp was too steep and in violation of the applicable building codes for handicapped ramps. However, he stated that he did not believe the ramp was to be used as a handicapped or wheelchair ramp. Forster was not familiar with the applicable building codes for ramps that are used for other purposes besides handicapped ramps.

On March 15, 1999, Wayne Peters delivered a meal to the Hamm residence. As he left the home, his feet slipped from underneath him on the ramp, and he fell and injured himself. He incurred more than $134,000.00 in medical bills and has been unable to work. The Peters subsequently filed a lawsuit against the Hamms, alleging they were negligent in the maintenance of the ramp. By amended complaint, Donald Forster was later added as a defendant. The Hamms were dismissed from the case after the claim against them was settled. Forster moved for summary judgment, which the trial court granted:

Upon review of facts and evidence presented at hearing on "Motion For Summary Judgment", [sic] the Court now having considered the "Defendant's Motion For Summary Judgment" and being duly advised of the premises and pursuant to Trial Rule 56-B, does hereby grant the Defendant's motion and enters judgment for the Defendant, finding as a matter of law that the Defendant, Donald Forster, did not owe a duty to the Plaintiff, that his work was for [the Hamms].

This work was done in accordance with their request, accepted, and paid for. The contract was a limited contract to move and reattach a ramp, not to construct or reconstruct a ramp. The Defendant was hired for a limited scope of employment, and complied with the requirements of that limited scope for the benefit of the property owner and in accordance with their wishes.

Appellant's Appendix at 1.

The Peters now appeal the trial court's grant of summary judgment in favor of Forster.

DISCUSSION AND DECISION

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. LeBrun v. Conner, 702 N.E.2d 754, 756 (Ind.Ct.App. 1998). When reviewing a decision on a summary judgment motion, we apply the same standard as the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct. App.1994),trans. denied (1995). Summary judgment is appropriate only when the designated evidentiary material shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). Therefore, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. The party appealing the grant of summary judgment has the burden of persuading this court on appeal that the trial court's ruling was erroneous. Jordan v. Deery, 609 N.E.2d 1104, 1107 (Ind.1993). We may sustain a grant of summary judgment upon any theory supported by the designated materials. T.R. 56(C); Crist v. K-Mart Corp., 653 N.E.2d 140, 142 (Ind. Ct.App.1995),trans. denied (1996). Applying the above standard, we conclude that the trial court incorrectly granted summary judgment in Forster's favor.

To succeed on a negligence claim, the Peters must prove that: 1) a duty was owed to them by Forster; 2) a breach of that duty by Forster; and 3) injury to them proximately caused by that breach. Wickey, 642 N.E.2d at 265. Because the trial court granted summary judgment on the element of duty, the only issue is whether Forster owed the Peters a duty under the circumstances. Whether a duty exists is generally a question of law for the court to determine. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). However, factual questions may be interwoven in this issue, thus rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder. State v. Cornelius, 637 N.E.2d 195, 198 (Ind.Ct.App.1994), trans. denied. In imposing a common law duty, a court should weigh three main factors: 1) the relationship between the parties, 2) the reasonable foreseeability of the type of harm to the type of plaintiff at issue, and 3) the public policy promoted by recognizing an enforceable duty. Webb, 575 N.E.2d at 995.

Forster argues that he owed no duty to the Peters because his work had been accepted by the Hamms. Indiana has long followed the rule that, in general, independent contractors do not owe a duty of care to third parties after the owner has accepted the contractor's work. (Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 170 (Ind.1996)) (citing Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457 (1896)); U-Haul Intern. Inc. v. Mike Madrid Co., 734 N.E.2d 1048, 1052 (Ind.Ct.App.2000). Accordingly, evidence of the independent contractor's mere negligence is insufficient to impose liability against the contractor after acceptance of the work by the general contractor or owner. U-Haul, 734 N.E.2d at 1052.

In determining whether acceptance occurred, several factors are evaluated and include 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.'" Id. (quoting Blake, 674 N.E.2d at 171). This rule relieving contractors of liability once the work is accepted is based upon the premise that the party in control of the premises is generally in the best position to prevent harm to third parties. Kostidis v. Gen. Cinema Corp. of Indiana, 754 N.E.2d 563, 568 (Ind.Ct.App.2001) (citing Blake, 674 N.E.2d at 171). Therefore, "`in 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. at 568-69 (quoting Blake, 674 N.E.2d at 171). In Blake, our supreme court reexamined and reaffirmed the acceptance rule first established in Daugherty. Blake, 674 N.E.2d at 170-71

. The court noted that the rule is premised on the passing of control of the premises back to the owner. It stated that "a contractor's duty of care ceases once the owner is again better able than the contractor to prevent the harm." Id. at 171. After reiterating that acceptance of the contractor's work is the critical consideration, the court established the four-prong test for determining whether acceptance has taken place, which focuses on whether the owner was better able to prevent injury to third parties at the time the harm occurred.

Applying the four factors in the acceptance inquiry, the court determined that there was insufficient evidence to establish that the owner had accepted the contractor's work as a matter of law. The only evidence that the contractor presented of acceptance was that it had been paid in full before the plaintiff's injury occurred. The court noted that there was no evidence in the record that the owner was satisfied with the contractor's work. The record was also silent about who controlled the premises at the time of the injury and whether the contract was completed according to specifications. Because of this lack of evidence of acceptance, the court held that the contractor was not entitled to summary judgment on the duty issue. Id. at 171-72.

The Blake court further stated that "[a]lthough contractors under Daugherty owe no duty to third parties after the owner has accepted the work, several exceptions have been carved out from this general rule." Blake, 674 N.E.2d at 172. For instance, the contractor remains liable for injuries to third parties even after the owner has accepted the work, where the work was left "`in a condition that was dangerously defective, inherently dangerous or imminently dangerous such that it created a risk of imminent personal injury.'" U-Haul, 734 N.E.2d 1048, 1052 (quoting Hill v. Rieth-Riley Constr. Co., 670 N.E.2d 940, 944-45 (Ind.Ct.App.1996)). Additionally, "`[i]f the thing sold or constructed be not imminently dangerous to human life, but may become such by reason of some concealed defect, then a liability may arise against such vendor or constructor if he knew of the defect and fraudulently concealed it.'" Nat'l Steel Erection v. Hinkle, 541 N.E.2d 288, 292 (Ind.Ct.App.1989) (quoting Holland Furnace Co. v. Nauracaj, 105 Ind.App. 574, 581, 14 N.E.2d 339,...