Ross v. State

• Citation: 704 N.E.2d 141
• Decision Date: 29 December 1998
• Docket Number: No. 49A02-9709-CV-591,49A02-9709-CV-591
• Parties: Shirley ROSS, as Guardian of Bradley Ross, Disabled Adult, Appellant-Plaintiff, v. STATE of Indiana and L.P. Cavett Company, Appellees-Defendants. Buske Lines, Inc., Appellant-Plaintiff, v. Indiana Department of Transportation and L.P. Cavett Company, Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 141

704 N.E.2d 141

Shirley ROSS, as Guardian of Bradley Ross, Disabled Adult, Appellant-Plaintiff, v. STATE of Indiana and L.P. Cavett Company, Appellees-Defendants.

Buske Lines, Inc., Appellant-Plaintiff, v. Indiana Department of Transportation and L.P. Cavett

Company, Appellees-Defendants.

No. 49A02-9709-CV-591.

Court of Appeals of Indiana.

Dec. 29, 1998.

Irwin B. Levin, Steve Selmer, William W. Mathews, Cohen & Malad, Indianapolis, for Bradley and Shirley Ross.

Michael B. Langford, Scopelitis Garvin Light & Hanson, Indianapolis, for Buske Lines, Inc.

Peter G. Tamulonis, Eric D. Johnson, Kightlinger & Gray, Indianapolis, for Appellees-Defendants.

OPINION

SHARPNACK, Chief Judge.

Shirley and Bradley Ross ("Ross") and Buske Lines, Inc. ("Buske") (collectively "Appellants") appeal the trial court's grant of summary judgment in favor of the defendant-appellees, L.P. Cavett Company ("Cavett"). The sole issue on appeal is whether the trial court's grant of summary judgment was erroneous. We affirm.

The facts most favorable to the nonmovant follow. On May 31, 1993, Cavett contracted with the Indiana Department of Transportation ("INDOT") to provide the labor and materials to perform a bituminous resurfacing of a portion of State Road 1 ("S.R. 1"). Cavett's completed work was accepted by INDOT on November 15, 1993.

On April 28, 1994, Bradley Ross was traveling south on S.R. 1 in a tractor-trailer unit owned by Buske. Approximately 345 feet south of the intersection of S.R. 1 and Yorkridge Road, Ross's truck encountered a left curve. This curve contained a dip or "low spot." ¹ Record, p. 238. As the truck passed over this section of the curve, the trailer tipped to the right and slid sideways towards the edge of the pavement. The trailer's wheels then slid off the pavement and encountered a six to eight inch drop-off. Ross attempted to move his wheels over the drop-off and back onto the pavement by turning the truck towards the left. After the trailer returned to the pavement, it crossed the centerline of the road. The truck then struck a mud bank on the opposite side of the road which caused the truck to roll onto its side and slide. The truck spun ninety degrees and then came to a halt. Ross was seriously injured in the accident.

Ross and Buske filed complaints against Cavett and INDOT. Cavett then filed a motion for summary judgment which the trial court granted.

Before we begin our discussion of the merits, we must first address several procedural issues raised by Cavett. First, Cavett asserts that the Appellants have waived review of certain arguments by failing to raise them to the trial court below. However, after a review of Cavett's motion and brief in support of the motion, we find that Cavett has essentially raised each of the challenged issues, with the exception of one, in its own pleadings. Generally, a party may not raise an issue on appeal which was not raised in the trial court. Ansert v. Indiana Farmers Mutual Ins. Co., 659 N.E.2d 614, 617 (Ind.Ct.App.1996), reh'g denied. This rule also applies to summary judgment proceedings. Id. However, where an opposing party has unequivocal notice of an issue, that issue may be considered on appeal. Id. Having essentially raised these issues in its own materials in support of its motion for summary judgment, we conclude that Cavett had "unequivocal notice" of the issues. As such, we may review these issues on appeal. See id.

However, we also conclude that Cavett did not have "unequivocal notice" of one of the issues raised by Appellants. This issue is whether Cavett should be liable for failing to take an affirmative step in correcting the adverse superelevation because Cavett was a contractor experienced in highway construction and because the contract allegedly provided Cavett with the opportunity to assist in developing the plans. Appellants respond to Cavett's waiver argument by claiming that Cavett had "unequivocal notice" of the issue as evidenced by the following statement made by Cavett in its amended motion for summary judgment: " ... Cavett performed its contract in accordance to the plans and specifications supplied by the owner, the State of Indiana." Record, p. 189. We conclude that Cavett's statement could not be construed to be sufficient notice of the argument because Appellants' argument deviates from the generally accepted rule regarding a contractor's liability for following defective construction plans, discussed below. Given the novelty of the Appellants' argument, we cannot conclude that Cavett had "unequivocal notice" of the issue. Therefore, we conclude that Appellants have waived this issue for failure to adequately raise it to the trial court below. See Ansert, 659 N.E.2d at 617.

Cavett next asserts that Appellants' designated evidence should not be considered because it was not filed within the time limits specified by T.R. 56(C). While Appellants' designated materials in opposition to the motion for summary judgment were filed two days beyond the thirty-day time limit, Cavett failed to raise this defect to the trial court. Again, a party may not raise an issue on appeal which was not raised in the trial court. Ansert, 659 N.E.2d at 617. Therefore, Cavett has failed to preserve this contention for appeal.

Standard of Review

The sole issue raised is whether the trial court erred in granting summary judgment. When we review a trial court's decision on a motion for summary judgment, we are bound by the same standard as the trial court. Ayres v. Indian Heights Volunteer Fire Dep't, Inc., 493 N.E.2d 1229, 1234 (Ind.1986); see Ind. Trial Rule 56. The appellant bears the burden of proving the trial court erred in determining that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmovant. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue." Scott v. Bodor, Inc., 571 N.E.2d 313, 318 (Ind.Ct.App.1991).

On appeal, we will carefully scrutinize the trial court's determination to ensure that the nonprevailing party is not improperly denied his day in court. Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240, 1243 (Ind.Ct.App.1994), trans. denied. We consider only the materials designated to the trial court to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law. T.R. 56(C). We liberally construe all inferences and resolve all doubts in the nonmovant's favor. Id.

Discussion

Appellants contend that the trial court erred in granting summary judgment because there were several genuine issues of material fact relating to whether Cavett is immune from liability even after its work was accepted by INDOT. The general rule in Indiana is that an independent contractor does not owe a duty of care to third parties after the owner has accepted the contractor's work. Blake v. Calumet Const. Co., 674 N.E.2d 167, 170 (Ind.1996). An exception to this rule imposes liability on the contractor after the acceptance of the work where the contractor turns over the work "in a condition that was dangerously defective, inherently dangerous, or imminently dangerous such that it created a risk of imminent personal injury." Id. at 172-173 (quoting Citizens Gas & Coke Util. v. American Economy Ins. Co., 486 N.E.2d 998, 1000 (Ind.1985)). However, any such liability established under this exception is, nevertheless, limited where the contractor has merely followed plans provided by the contractee/owner. This limitation has been stated as follows:

"[T]he contractor is not liable if he has merely carried out the plans, specifications, and directions given him, since in that case the responsibility is assumed by the employer, at least when the plans are not so obviously dangerous that no reasonable contractor would follow them."

Davis v. Henderlong Lumber Co., 221 F.Supp. 129, 134 (N.D.Ind.1963) (applying Indiana law); see also Travis v. Rochester Bridge Co., 188 Ind. 79, 84, 122 N.E. 1, 2 (1919); Hapner v. State, 699 N.E.2d 1200, 1205 (Ind.Ct.App.1998); Hobson v. Beck Welding Mfg., Inc., 144 Ind.App. 199, 204, 245 N.E.2d 344, 347 (1969). Thus, where a contractor is not following his or her own plans for the work, but those provided by the contractee, liability is imposed only where the plans are so obviously defective that no reasonable contractor would follow them. See Davis, 221 F.Supp. at 134.

Appellants argue that Cavett is subject to liability under each of the above noted exceptions. ² Although we ultimately conclude that application of either of the exceptions would be dispositive in this case, we will address each in turn.

I. Imminently Dangerous Condition

Beginning with the exception to the general rule regarding independent contractor liability, Appellants assert that the designated evidence creates a genuine issue of material fact as to whether Cavett's failure to correct the adverse superelevation ³ in the road left the work in an imminently dangerous condition such that it created a risk of imminent personal injury. ⁴ We disagree.

First, a review of the designated evidence reveals that the work Cavett contracted to complete did not create the defect in the curve. The defect in the road existed prior to Cavett beginning its work. Cavett merely added a layer of material to the existing road. As a result, nothing in Cavett's work directly created the alleged dangerous condition. Nevertheless, Appellants assert that Cavett's failure to correct the defect by...