Sand Creek Partners, L.P. v. Finch, 29A02-9407-CV-439

• Citation: 647 N.E.2d 1149
• Decision Date: 23 March 1995
• Docket Number: No. 29A02-9407-CV-439,29A02-9407-CV-439
• Parties: SAND CREEK PARTNERS, L.P.; Sand Creek, Inc.; Sunshine Promotions, Inc.; and Pacers Basketball Corporation, d/b/a Market Square Arena, Appellants-Defendants, v. Tony FINCH and Lisa Finch, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 1149

647 N.E.2d 1149

SAND CREEK PARTNERS, L.P.; Sand Creek, Inc.; Sunshine Promotions, Inc.; and Pacers Basketball Corporation, d/b/a Market Square Arena Appellants-Defendants, v. Tony FINCH and Lisa Finch, Appellees-Plaintiffs.

No. 29A02-9407-CV-439.

Court of Appeals of Indiana Third District.

March 23, 1995.

Michael K. Lulich, Lulich, Murphy & Dowling, Indianapolis, for appellant.

Harry A. Wilson, Jr., Wilson Kehoe & Winingham, Indianapolis, for appellee.

OPINION

STATON, Judge.

Sand Creek Partners, L.P., Sand Creek, Inc., Sunshine Promotions, Inc., and Pacers Basketball Corporation d/b/a Market Square Arena (collectively "Sand Creek") ¹ bring an interlocutory appeal from the trial court's denial of their motion for summary judgment. Tony and Lisa Finch (collectively "Finch") ² sued Sand Creek for personal injuries sustained in a traffic accident. The accident occurred on a public highway as Finch left Deer Creek Music Center ("Deer Creek"). Sand Creek raises two issues on appeal which we consolidate into one and restate as follows: whether the trial court erred in denying summary judgment to Sand Creek on whether Deer Creek, as operated, constitutes a public nuisance which caused Finch's injuries.

We reverse and remand. ³

The facts most favorable to the nonmovant, Finch, are as follows. Finch and two friends, Mike Johnston and Frank Beatty, went to Deer Creek to attend a concert. After the concert ended around 11:00 p.m., the men got in Finch's car to go home. Johnston, who was not intoxicated, drove Finch's car as they exited the venue while Finch slept in the back seat. Deer Creek lot attendants directed Johnston to exit Deer Creek from the north on Boden Road; Johnston had to take the Boden Road exit. From Boden Road, attendants directed Johnston east to State Road 38 joining traffic that led to the intersection of State Roads 38 and 32. Upon approaching the intersection, Johnston saw cars ahead slowing for a stop sign without completely stopping and merging into the traffic on State Road 32. Johnston did likewise and was struck broadside by a car proceeding eastbound on State Road 32. The accident occurred three to four miles from Deer Creek.

Finch, seriously injured in the accident, brought suit against Sand Creek alleging negligence and nuisance in the operation and location of Deer Creek. Sand Creek sought summary judgment on the issue of nuisance; the trial court denied summary judgment and the order was certified for interlocutory appeal.

Sand Creek argues that the trial court erred in denying summary judgment on the issue of whether Deer Creek is a public nuisance. Sand Creek claims the nature of the accident precludes their liability on a nuisance theory. We agree.

Summary judgment is appropriate only when the moving party proves there are no genuine issues of material fact and they are entitled to judgment as a matter of law. Ind.Trial Rule 56(C). Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter (1992), Ind., 596 N.E.2d 1369, 1371. At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Collins v. Covenant Mut. Ins. Co. (1992), Ind.App., 604 N.E.2d 1190, 1194.

Sand Creek bears the burden of proving the following: the undisputed facts lead to the conclusion that Deer Creek, as operated, is not a public nuisance which caused Finch's injuries. Nuisance is defined by statute as follows:

[w]hatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.

Ind.Code § 34-1-52-1. The law of nuisance creates problems of definition for courts and commentators. As stated by one expert, "[t]here is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'." W. Prosser and W. Keeton, Prosser and Keeton on Torts § 86 (5th ed. 1984).

Finch alleges that Deer Creek is a public nuisance in fact. A public nuisance is caused by an unreasonable interference with a common right. Blair v. Anderson (1991), Ind.App., 570 N.E.2d 1337, 1339. A common right is one shared by the public at large. Stover v. Fechtman (1966), 140 Ind.App. 62, 222 N.E.2d 281, 284. A nuisance in fact is not a nuisance of itself, but becomes a nuisance in the manner in which it is operated. Wernke v. Halas (1992), Ind.App., 600 N.E.2d 117, 120. Whether an otherwise lawful use is a nuisance in fact is a question for the trier of fact for which summary judgment is rarely appropriate. Id, at 120-121. A private party may bring an action to redress a public nuisance by demonstrating peculiar injury apart from that suffered by the public. ⁴ Blair, supra, at 1339-1340.

Finch alleges that Deer Creek, as operated, is a threat to the general public. He claims that large crowds and hazardous means of egress to the venue establish this public danger. Beyond this, Finch does not identify what public right Deer Creek violates.

We first note that many facts which Finch alleges make Deer Creek a nuisance have no connection to his injury. Whether Deer Creek might constitute a nuisance under some imaginable factual situation is not relevant; Finch's allegations must indicate a causal connection between Sand Creek's violation of a public right and his injuries. ⁵

In examining the statutory definition of nuisance, it becomes clear that an incredible breadth of conduct arguably fits under the label "nuisance", including most crimes and torts. Some limits must exist on the law of nuisance, to ascertain these limits we turn to our common law. We find the language of DeMoss v. Coleman (1966), 139 Ind.App. 346, 216 N.E.2d 861, trans. denied, instructive:

[a]lthough the language employed in [the nuisance] statute is general and potentially could be construed as to give a cause of action to a large ambit of persons, we are however compelled to review an earlier pronouncement of our Supreme Court concerning the coverage of the provisions of this statute. In Town of Kirklin v. Everman (1940), 217 Ind. 683, 28 N.E.2d 73, [on reh. 217 Ind. 683,] 29 N.E.2d 206, the Court said: 'Not every dangerous agency is a nuisance, and we believe it can be said generally that an instrumentality maintained upon private premises may only be said to be a nuisance upon the ground that it is calculated to produce personal injuries when it is of such character, and so maintained, that it is reasonably and naturally calculated to injure the general public or strangers who may come upon the premises.' [Id, 28 N.E.2d at 75.]

DeMoss, supra, 216 N.E.2d at 863. We read this language to require one claiming damages from a public nuisance to demonstrate that the agency as operated has more than a mere tendency to, or increased likelihood of, causing an injury. The alleged nuisance must cause injury as a reasonable and natural result of its operation.

The Everman case offers an apt illustration. In that case, Everman was injured while trying to retrieve a screwdriver from a pit. Unaware that the pit housed a gasoline engine, Everman lit a match to illuminate the fume-filled chamber. Our supreme court held that the pit was not a nuisance because it was only dangerous when uncovered and the fumes ignited. Everman, supra, 28 N.E.2d at 75. ⁶

Finch's case is similar. Finch's allegations reveal a danger only to those who ignore traffic laws....