Schlosser v. Rock Industries, Inc.
| Decision Date | 26 September 2003 |
| Docket Number | No. 50A03-0302-CV-56.,50A03-0302-CV-56. |
| Citation | 796 N.E.2d 350 |
| Parties | Julee SCHLOSSER, as Administratrix of the Estate of Jocelyn H. Schlosser, Deceased; Jordan Schlosser, Individually and on behalf of Madysen Wagoner, a Minor; and Joshua Wagoner, on behalf of Madysen Wagoner, a Minor, Appellants-Plaintiffs, v. ROCK INDUSTRIES, INC., Appellee-Defendant. State of Indiana, Appellant-Defendant, v. Rock Industries, Inc., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Douglas D. Small, Foley & Small, South Bend, IN, Steve Carter, Attorney General of Indiana, John H. Lewis, Office of the Attorney General, Indianapolis, IN, Attorneys for Appellants.
Don G. Blackmond, Jr., Peter J. Van Dyke, Doran • Blackmond LLP, South Bend, IN, Attorneys for Appellee.
Julee Schlosser, as Administratrix of the Estate of Jocelyn Schlosser, Jordan Schlosser, Individually and on behalf of Madysen Wagoner, and Joshua Wagoner, on behalf of Madysen Wagoner (collectively "the Estate") appeal a grant of summary judgment in favor of Rock Industries, Inc. ("Rock Industries") on the Estate's negligence claim. The State of Indiana ("the State") appeals the denial of its motion to amend its Answer to file a cross-claim against Rock Industries. We affirm.
The Estate presents five issues, which we consolidate and restate as a single issue: whether Rock Industries is entitled to summary judgment.
The State presents a single issue: whether the trial court abused its discretion by denying the State leave to amend its answer to include a cross-claim against Rock Industries.1
During the winter season of 1999 through 2000, the Indiana Department of Transportation ("INDOT") contracted with Rock Industries to provide a front-end loader with an operator on an as-needed basis to deal with extraordinary snowfall on the roadway in the Plymouth, Indiana area. From January 7, 1999 through January 15, 1999, over thirteen inches of snow fell in that area.
On January 7, 1999, Carlton Kindig ("Kindig"), an INDOT operations foreman, dispatched Rock Industries employee Thomas Lehiy ("Lehiy"), a front-end loader operator, to clear the crossover at the intersection of U.S. 31 and Old Michigan Road south of Plymouth ("the Intersection"). An accident had occurred at the Intersection earlier in the day. At the Intersection, Lehiy observed a snow pile in the median that he estimated to be three feet at its highest point.2 He cleared the crossover of snow and cleared the snow pile in the median until, in his opinion, "[it was] where everyone could see." (Supp. App. at 4.) Lehiy razed the snow pile "basically down to the ground" on the west side of a yield sign, but added snow on the east side of the sign. (Supp.App. at 4.) Snow continued to fall.3 A second accident occurred at the Intersection on January 12, 1999. Sergeant Gary Dunlap reported to the accident scene and observed a large snow pile. He reported the problem to INDOT, and also, with the assistance of Officer Adam Gray, physically knocked down and kicked a portion of the snow pile until he felt that the driving conditions were safe. A snowplow arrived and pushed snow from one section of the snow pile.
During the early evening of January 15, 1999, a two-vehicle collision occurred at the Intersection. Driver Jordan Schlosser was injured, her thirteen-year-old sister Jocelyn Schlosser was killed; and one-year-old Madysen Wagoner was injured. The undisputed cause of the collision was impaired driver visibility due to a snow pile in the median.
On August 30, 1999, the Estate filed a complaint against the State, Rock Industries and Marshall County, Indiana.4 On October 25, 1999, the State filed its answer. On March 20, 2002, the State filed a Motion for Leave to Amend Answer, seeking to file a breach of contract cross-claim against Rock Industries, and the motion was granted the same day. On March 27, 2002, Rock Industries filed its Motion to Reconsider Court Ruling.
On May 30, 2002, Rock Industries filed a Motion for Summary Judgment. The State filed a Motion for Summary Judgment on July 15, 2002. On August 9, 2002, the trial court held a hearing on the respective motions. On November 14, 2002, the trial court entered an order, in pertinent part as follows:5
(Appellee's App. at 22.) This appeal ensued.
Indiana Trial Rule 56(C) provides that a party seeking summary judgment must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The movant must designate sufficient evidence to eliminate any genuine factual issues, and once the movant has done so, the burden shifts to the nonmovant to come forth with evidence to the contrary. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind.2002). The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party. Id.
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, matters of judicial notice and any other matters on which it relies for purposes of the motion. T.R. 56(C). We employ the same standard used by the trial court when reviewing the grant or denial of summary judgment. Crossno v. State, 726 N.E.2d 375, 378 (Ind. Ct.App.2000). 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. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id. We may sustain a summary judgment upon any theory supported by the designated materials. Peterson v. First State Bank, 737 N.E.2d 1226, 1230 (Ind.Ct.App.2000).
A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Cansler v. Mills, 765 N.E.2d 698, 701 (Ind.Ct.App.2002), trans. denied.
To recover upon a negligence claim against Rock Industries, the Estate must establish: (1) a duty owed to the plaintiffs by Rock Industries; (2) Rock Industries' breach of that duty; and (3) damages proximately caused by Rock Industries' breach of duty. Blake v. Calumet Const. Corp., 674 N.E.2d 167, 169 (Ind.1996). Summary judgment is rarely appropriate in negligence cases. Colen v. Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind.Ct.App.1995). Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff's claim. Id.
Absent factual evidence designated to the trial court, negligence will not be inferred. Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 458 (Ind.Ct.App.2000). Specific factual evidence, or reasonable inferences that might be drawn therefrom, on each element must be designated to the trial court. Id. at 458. Moreover, an inference that rests on mere speculation or conjecture is not reasonable. Midwest Commerce Banking Co. v. Livings, 608 N.E.2d 1010, 1012 (Ind.Ct.App.1993).
The Estate contends that numerous factual issues as to the performance and acceptance of Rock Industries' work preclude the entry of summary judgment in Rock Industries' favor. Rock Industries responds that undisputed facts establish that it owed no duty to the victims, because INDOT accepted its work of January 7, 1999 and also that its actions did not cause the injuries complained of, because its work had been altered on January 12, 1999, after the second collision at the Intersection.
The trial court did not specify which element or elements of the Estate's negligence claim the designated materials negated. However, it is apparent from the arguments and designated materials that the dispositive inquiry is whether Rock Industries owed a duty to the victims herein.
Generally, an independent contractor does not owe a duty of care to third parties after an owner or general contractor has accepted the work. McBride ex rel. Estate of McBride v. Cole Assoc., Inc., 753 N.E.2d 730, 735 (Ind.Ct.App.2001). Thus, evidence of the contractor's mere negligence is insufficient to impose liability against the contractor after acceptance of the work by the general contractor or owner. Id.
Contractors are liable for negligence while their work is in progress because they are presumably in a better position than the landowner to prevent injuries to third parties. Blake, 674 N.E.2d at 170. However, because a contractor's presence is transient, the law has sought to relieve the contractor of liability after the work is accepted and completed, subject to some exceptions. Id. Factors to be considered in determining acceptance include...
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