Straley v. Kimberly
| Decision Date | 09 October 1997 |
| Docket Number | No. 41A01-9612-CV-388,41A01-9612-CV-388 |
| Parties | Gary STRALEY and Jerry J. Straley, Appellants-Plaintiffs, v. Randy KIMBERLY, Frank Sweezy, Indiana Underground Plant and Protection Services, Inc., a/k/a Holely Molely, and Majestic Builders, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Appellants-plaintiffs Gary and Jerry Straley, as husband and wife, (Straleys) appeal the trial court's grant of summary judgment in favor of appellees-defendants Frank Sweezy, Randy Kimberly, Majestic Builders Inc. (Majestic) and Indiana Underground Plant and Protection Services, a/k/a Holely Molely (Holely Molely) after Gary Straley, a gas company employee, was injured while attempting to fix a ruptured gas main. The Straleys raise various arguments supporting the reversal of the trial court's grant of summary judgment. However, because we find the issue of proximate cause to be dispositive, we address only that issue on appeal.
The facts most favorable to the non-movants, the Straleys, reveal that Majestic was the prime contractor on a home construction project in a subdivision in Johnson County. As part of the project, a water line was to be laid from one of the houses in the subdivision to a water line near a bordering street. Consequently, Majestic hired Kimberly, a subcontractor, to lay the water line and Kimberly, in turn, hired Sweezy to excavate the trench.
Before Sweezy began to excavate the trench, Tim Cronk, Majestic's project superintendent, contacted Holely Molely and asked them to contact the gas company so that it could mark its underground gas lines. 1 Holely Molely, however, has no record of Cronk's call or any similar request from any person associated with the excavation project. Nevertheless, at the time the excavation occurred, some of the underground gas lines had been marked.
Thereafter, on December 23, 1992, Kimberly met with Sweezy and informed him where to dig the trench. Kimberly then checked to ensure that the gas lines had been marked and instructed one of its employees, Keith Taylor, to remain with Sweezy during the excavation to aid him in locating the gas lines and in digging the trench. Kimberly then left the site.
Shortly after Sweezy began digging the trench with a backhoe, he accidentally severed a plastic gas service line, running from the main line to the house. Instead of reporting the damage to the gas company however, Sweezy clamped the line and continued to dig until he struck the main gas line, which he claims was not properly marked.
Immediately thereafter, Sweezy ceased digging, called Cronk, informed him of the damaged line and asked him to call Indiana Gas. According to Cronk, he promptly called the gas company from his car and then proceeded to the excavation site. After he arrived, Cronk again called the gas company to alert them of the ruptured line.
In response to the call, Indiana Gas dispatched a repair crew to the site, which included Mike Graham, a foreman for Indiana Gas, and Gary Straley. After they arrived at the accident site, Gary smelled gas and heard it escaping with a "loud roar" indicating a major leak. Gary's deposition at 58. Due to the size of the leak and the possibility of fire and explosion, the repair crew determined that the gas leak needed to be repaired immediately. Graham's deposition at 27; Gary's deposition at 59. As a result, Graham directed the crew to clamp off the main line and to construct a bypass line around the leak.
In order to complete the repairs, Graham's crew dug a hole directly north of the damaged gas main. Gary and Graham then entered the hole to install a two-inch clamp. After they had the clamp in position, Graham handed Gary a ratchet wrench and a socket to tighten the clamp. Immediately thereafter, and more than one hour after the crew had assumed control of the repairs, the gas ignited, causing Gary injuries. Record at 728-29. Following an investigation, the gas company was unable to discover what ignited the gas.
On December 20, 1994, the Straleys filed a complaint against Sweezy, Kimberly, Majestic and Holely Molely. In particular, the Straleys alleged that Sweezy and Kimberly negligently severed the underground gas line and, alternatively, that Kimberly negligently entrusted the excavation work to Sweezy. The complaint further alleged that Majestic also negligently contributed to the severance of the underground gas line and, in the alternative, negligently entrusted Sweezy and Kimberly to lay the water line. Finally, the complaint alleged that Holely Molely negligently failed to notify the gas company to have the gas lines marked.
In response, Sweezy, Kimberly and Majestic each filed a motion for summary judgment. In his motion, Sweezy contended that he did not owe Gary a duty and that his actions were not the proximate cause of Gary's injuries. Kimberly also asserted that he did not owe a duty to Gary, that the danger which Gary encountered was open and obvious and that he was not the proximate cause of Gary's injuries. Finally, Majestic argued in its motion that it was not liable for Sweezy's or Kimberly's alleged negligent act since they were both independent contractors. It further alleged that any alleged negligent act on its part was not the proximate cause of Gary's injuries.
On May 14, 1996, the trial court held a hearing on the motions during which Holely Molely orally moved for summary judgment pursuant to Ind.Trial Rule 56(B). On May 22, 1996, the trial court granted all of the defendants' motions for summary judgment. In particular, the court found that none of the defendants owed Gary a duty of care. The court also concluded that, as a matter of law, none of the alleged negligent acts was the proximate cause of Gary's injuries. Thereafter, the Straleys filed a motion to correct error which the trial court denied. The Straleys now appeal the grant of summary judgment in favor of each defendant.
Initially, we note our standard of review. The purpose of summary judgment is to terminate litigation which can be determined as a matter of law. Funk v. Funk, 563 N.E.2d 127, 129 (Ind.Ct.App.1990), trans. denied. When reviewing the propriety of the grant of summary judgment, we stand in the same position as the trial court. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), trans. denied. Summary judgment is only appropriate when the moving party demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). Once the movant has sustained this initial burden, the opposing party must respond by designating all parts of pleadings, depositions, answers to interrogatories, admissions, and any other matters on which it relies which demonstrate that a genuine issue exists for trial. Id. We consider the facts in the light most favorable to the nonmoving party. Id. However, we may sustain the trial court's decision upon any theory supported by the designated materials. T.R. 56(C). Although summary judgment is generally inappropriate in a negligence case, it may be appropriate if the defendant demonstrates that the undisputed facts negate at least one element of the plaintiff's claim. Barsz v. Max Shapiro, Inc., 600 N.E.2d 151, 152 (Ind.Ct.App.1992); Goldsberry v. Grubbs, 672 N.E.2d 475, 477 (Ind.Ct.App.1996).
In order to recover under a theory of negligence, a party is required to establish the following: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached that duty by failing to conform his conduct to the requisite standard of care; and 3) the breach was the proximate cause of the plaintiff's injuries. Blake v. Calumet Const. Corp., 674 N.E.2d 167, 169-170 (Ind.1996). Further, a party must establish the following elements for a claim of negligent entrustment: 1) an entrustment; 2) to an incapacitated person or one who is incapable of using due care; 3) with actual and specific knowledge that the person is incapacitated or incapable of using due care at the time of the entrustment; 4) proximate cause; and 5) damages. Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind.Ct.App.1996). Here, the Straleys contend that a question of fact exists regarding whether the defendants' acts were the proximate cause of Gary's injuries. Specifically, they argue that Gary's injuries were the foreseeable consequence of the defendants' negligent acts. In response, the defendants argue that although they may have initially caused the gas leak, the gas company's actions in repairing the gas main, including instructing Gary to clamp the line without turning off the gas, were intervening superseding causes. Therefore, they contend that they are not liable for Gary's injuries as a matter of law.
In determining whether an act is the proximate cause of another's injury, this court considers whether the injury was a natural and probable consequence of the negligent act, which, in the light of the attending circumstances, could have been reasonably foreseen or anticipated. Goldsberry, 672 N.E.2d at 479. Thus, to be considered a proximate cause, the negligent act must have set in motion a chain of...
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