Smith v. Walsh Constr. Co. II, LLC

• Decision Date: 09 February 2018
• Docket Number: Court of Appeals Case No. 08A02–1706–CT–1493
• Citation: 95 N.E.3d 78
• Parties: Jennifer A. SMITH, as Personal Representative of the Estate of Joshua J. Smith, Deceased, Appellant/Appellee–Plaintiff, v. WALSH CONSTRUCTION COMPANY II, LLC, Appellant–Defendant, and Case Foundation Company, Irving Materials, Inc., Bernardin Lochmueller and Associates, Inc. n/k/a Lochmueller Group, Inc., RoadSafe Holdings, Inc., Roudebush Grading, Inc., Appellees–Defendants
• Court: Indiana Appellate Court

95 N.E.3d 78

Jennifer A. SMITH, as Personal Representative of the Estate of Joshua J. Smith, Deceased, Appellant/Appellee–Plaintiff,

v. WALSH CONSTRUCTION COMPANY II, LLC, Appellant–Defendant,andCase Foundation Company, Irving Materials, Inc., Bernardin Lochmueller and Associates, Inc. n/k/a Lochmueller Group, Inc., RoadSafe Holdings, Inc., Roudebush Grading, Inc., Appellees–Defendants

Court of Appeals Case No. 08A02–1706–CT–1493

Court of Appeals of Indiana.

FILED February 9, 2018

Rehearing Denied April 18, 2018

Attorneys for Appellant, Walsh Construction Company II, LLC : Brandon J. Kroft, Heather T. Gilbert, Cassiday Schade LLP, Crown Point, Indiana

Attorneys for Appellant, Jennifer A. Smith : Jacob M. O'Brien, Andrew B. Miller, Starr Austen & Miller, LLP, Logansport, Indiana

Attorneys for Appellee, Case Foundation Company : Christina L. Fugate, Derek R. Molter, Gregory W. Pottorff, Ice Miller LLP, Indianapolis, Indiana

Attorney for Appellee, Irving Materials, Inc. : Bruce P. Clark, Bruce P. Clark & Associates, Saint John, Indiana

Attorneys for Appellee, Roudebush Grading, Inc. : Richard A. Rocap, Matthew K. Phillips, Rocap Law Firm LLC, Indianapolis, Indiana

Attorneys for Appellee, RoadSafe Holdings, Inc. : T. Allon Renfro, Bryan E. Rogers, Swanson, Martin & Bell, LLP, Chicago, Illinois

Attorney for Appellee, Bernardin Lochmueller and Associates, Inc., n/k/a Lochmueller Group, Inc. : Robert D. Emmerson, Defur Voran, LLP, Fishers, Indiana

Baker, Judge.

[1] In February 2013, Joshua Smith died as a result of a car accident that occurred on a stretch of Old State Road 25 near a bridge construction project. Smith's estate (the Estate) filed a wrongful death claim against a number of entities, including Walsh Construction Company II, LLC (Walsh), Case Foundation Company (Case), Irving Materials, Inc. (IMI), Bernardin Lochmueller and Associates, Inc. n/k/a Lochmueller Group (Lochmueller), RoadSafe Holdings, Inc. (RoadSafe), and Roudebush Grading, Inc. (Roudebush). The defendants each filed separate summary judgment motions. The trial court granted summary judgment in favor of all defendants except for Walsh. The Estate now appeals the orders granting summary judgment in favor of Case, IMI, RoadSafe, and Roudebush; Walsh now appeals the order denying its motion for summary judgment and the orders granting summary judgment in favor of all the other defendants.

[2] We find that there are genuine issues of material fact preventing summary judgment in favor of all defendants except for RoadSafe. Therefore, we affirm the denial of Walsh's summary judgment motion, affirm the grant of RoadSafe's summary judgment motion, and reverse the grant of summary judgment in favor of Lochmueller, IMI, Case, and Roudebush. We remand for further proceedings.

Facts

The Construction Project and the Parties

[3] In the summer of 2004, the Indiana Department of Transportation (INDOT) began the process of undertaking the Hoosier Heartland Highway construction project (the Project). The purpose of the Project was to replace Old State Road 25 (SR–25) with a four-lane, limited access highway from Lafayette to Logansport.

[4] INDOT contracted with Lochmueller to design Section 2D of the Project. Lochmueller included all INDOT mandated erosion control measures and maintenance of traffic plans in its design. Lochmueller's design, including the erosion control plan, was reviewed and approved by Walsh, INDOT, and the Indiana Department of Environmental Management (IDEM). Near the site of the accident, there was a roadside ditch running along the north side of a super-elevated curve. The Lochmueller designer ultimately determined that silt fencing was not required in that area because the roadside ditch was there to catch runoff surface water from adjacent fields and drain it away from the roadway pavement.

[5] On February 8, 2012, INDOT opened the Project for bidding. Walsh was ultimately awarded the bid to serve as General Contractor on the Project. Walsh, in turn, entered into subcontract agreements with Roudebush, RoadSafe, Case, and IMI. According to Walsh, all subcontractors were required to keep SR–25 free from mud caused by their work and to notify Walsh of any unsafe condition they observed. Walsh also inspected the roadway daily for mud and would clean the roadway if necessary.

[6] Roudebush was responsible for the installation and maintenance of erosion control measures. To that end, it installed a temporary silt fence, temporary fiber roll, erosion control blanket with permanent seed and fertilizer, temporary ditch inlet protection, seeding, and straw mulching. As Lochmueller had determined that no silt fencing was needed along the outside of the curve near the location of the accident, Roudebush did not install one. Walsh and INDOT confirmed that all erosion control measures complied with Lochmueller's plans. The last date that Roudebush was on site was January 21, 2013, two weeks before the accident.

[7] RoadSafe was responsible for the installation and maintenance of all construction road signage pursuant to Lochmueller's design plans. INDOT, Parsons Brinckerhoff (the Project engineer and INDOT's day-to-day representative at the site), and Walsh determined where needed signs would be placed, and RoadSafe followed their directives. The maintenance of traffic plan in the construction design called for a reduction in speed from 55 miles per hour to 45 miles per hour in both directions leading up to the accident site; it is undisputed that this speed limit reduction was not in place at the time of the accident. Evidently, INDOT and/or Parsons Brinckerhoff had determined that no reduction was necessary and did not direct RoadSafe to put such a sign in place until August 2013.¹ Lochmueller's maintenance of traffic plan did not call for signage warning of mud on the roadway or of construction entrances, and no such signs were recommended or placed by RoadSafe. At the time of the accident, all RoadSafe signage complied with the directives it had received. No RoadSafe employees were on-site on the day of the accident.

[8] Case was responsible for installing drilled concrete shafts for a bridge to be constructed over the Robinson Branch (a small stream). The Robinson Branch site was located on a sweeping curve in the roadway where the road pitched downward from the higher-elevated north side of the roadway to the lower-elevated south side. The bridge work took place on the north side of the road; Case employees accessing this site parked their vehicles in a temporary parking lot just off SR–25 and walked to the construction site. The construction entrance into this parking lot led to a "haul road," which was used to move the equipment needed to work on the bridges.² Case was performing work in this area in the days leading up to the accident and on the day of the accident.

[9] IMI entered into a purchase order agreement with Walsh to supply concrete for the Project, including in the pre-drilled shafts being installed by Case. The agreement incorporates the requirements of INDOT and the Project drawings, both of which require immediate removal of dirt from public roadways, though IMI claims it had no such obligation. IMI Br. p. 11. The day before the accident, IMI made nine deliveries of concrete to Case near the accident location, but no IMI employees were present on the day of the accident. IMI would have used one of the constructions entrances, including either the cross-over entrance or the parking lot/haul road entrance.

The Accident

[10] On February 7, 2013, Walsh employee Matt Kulp inspected SR–25 and cleaned mud from the road before leaving the worksite at 5:30 p.m. Kulp testified that when he left the worksite, there was no mud on the road. Case employee Rob Jones testified that he was the last person to leave the construction area around 7:30 p.m. and that there was no mud on the road at that time.

[11] That evening, Joshua Smith was driving from his home in Logansport to work in Delphi. At approximately 9:20 p.m., he was driving westbound on SR–25 near the temporary construction entrance at the Robinson Branch worksite. As he drove on this stretch of road, Smith allegedly encountered a substantial amount of mud and washout that had accumulated on the surface of the roadway. He lost control of the vehicle, which drifted left of the center line and collided head-on with an eastbound pickup truck being driven by Amanda West. Smith died shortly thereafter. At the time of the accident, it was lightly raining.

[12] Investigative records of law enforcement, witness testimony, and photographs taken the night of and the morning after the accident revealed mud, gravel, and sediment covering SR–25 in the vicinity of the accident. The mud obscured the center and northern fog lines of the road. Witnesses at the scene identified two sources of the mud in the road: washout from the construction worksite and tracking left in the roadway by vehicles exiting the worksite via the temporary construction entrance. The lead investigating officer, Darren Giancola, determined that, whatever its source, mud in the roadway caused or contributed to cause Smith's vehicle to cross the center line and collide with West's vehicle. Although the responding officers noticed the mud in the roadway, they did not clean the road before reopening it to traffic because they did not believe that it constituted a safety hazard.

[13] John West, who was Amanda West's passenger, and Ralph Anderson, a semi-truck driver who drove past the accident, stopped, and called the police, testified that they did not recall seeing any mud in the roadway.

[14] People who frequently drove by the construction site on SR–25 testified that the area was never kept clear of mud and that tracked mud and debris from construction traffic was a regular problem at the accident site. A Walsh employee testified that there was "absolutely" a problem with mud and sediment accumulating on SR–25 adjacent to the worksite,...