Opinion
24A-CT-814
10-31-2024
Kathleen Rogers and David Rogers, Appellants-Plaintiffs v. Deaconess Hospital, Inc., and Danco Construction, Inc., Appellees-Defendants
ATTORNEYS FOR APPELLANTS Jeffrey L. Hansford Curtis P. Moutardier New Albany, Indiana ATTORNEYS FOR APPELLEES L. Katherine Boren Evansville, Indiana Richard O. Hawley, Jr. Evansville, Indiana Colleen O. Davis Louisville, Kentucky
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Warrick Superior Court The Honorable Robert R. Aylsworth, Judge Pro Tempore Trial Court Cause No. 87D02-2203-CT-286
ATTORNEYS FOR APPELLANTS Jeffrey L. Hansford Curtis P. Moutardier New Albany, Indiana
ATTORNEYS FOR APPELLEES L. Katherine Boren Evansville, Indiana Richard O. Hawley, Jr. Evansville, Indiana Colleen O. Davis Louisville, Kentucky
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Kathleen Rogers ("Kathleen") and David Rogers ("David"), (collectively, "the Rogerses"), filed a premises liability claim in which they alleged Deaconess Hospital, Inc. ("Hospital") and Danco Construction, Inc. ("Danco"), were jointly and severally liable for negligence. The Rogerses appeal the trial court's order granting Danco's motion for summary judgment, and the only issue they raise is whether the trial court erred when it concluded that Danco was not negligent as a matter of law.
[¶2] We reverse and remand.
Facts and Procedural History
[¶3] At the beginning of the Covid Pandemic in March of 2020, Hospital hired Danco to construct a temporary "Covid building" in front of its Emergency Room. Appellant's App. v. II at 56. Hospital's plan was for patients who arrived with Covid or Covid symptoms to use the newly constructed Covid building, and for patients arriving with other emergency matters to use the hospital emergency room.
[¶4] Danco began construction on the Covid building on March 19 and completed it on March 30. Nathan Dosher was the Project Superintendent for Danco and was at the project site every day. Jeff Grunow, who served as the Manager of Capital Construction for Hospital throughout the year 2020, also was at the project site every day, making design changes and various suggestions.
[¶5] Hospital purchased a sign that said in red letters "[E]mergency [E]ntrance," and it was attached to the wall by the front door of the temporary Covid building by someone other than Danco. Id. at 74. There was also an approximately three-foot bifold standing sign around the building's entrance that said "something like 'Patient drop off.'" Id. at 104. Danco did not "provide" that bifold sign. Id. at 74.
Danco designated portions of the transcript of Dosher's deposition as evidence in support of its motion for summary judgement. Dosher stated that he "would say" Hospital installed the emergency entrance sign, and he did not "recall" Danco installing it. Appellant's App. v. II at 74. The Rogerses do not allege that Danco installed the sign. Danco also designated as evidence portions of the transcript of Grunow's deposition in which he states that Hospital ordered and purchased the emergency sign but does not state who installed the sign.
[¶6] On May 27 and 28 of 2020, at Hospital's direction, Danco dismantled and moved the temporary Covid building approximately thirty-to-forty feet from where it originally had been placed in front of the hospital emergency room. Hospital intended to cease use of the Covid building at that time but wished to "protect the integrity of [the] building" in case it was needed again in the future. Id. at 61. Hospital instructed Danco to "temporarily anchor" the Covid building to the concrete at its new location so that it could "easily be ... move[d] [] back in position if [Hospital] needed to put it back in function." Id. at 75. When moving the Covid building, Danco placed a "brace" across the threshold and low to the floor inside of the building's entrance door "to keep the building from basically crinkling together" while it was being moved. Id. at 84, 93. Danco did not inform Hospital that Danco had placed the brace over the door's threshold, and Danco did not remove the brace from the door when it completed the move of the building and left the premises on May 28.
[¶7] Hospital instructed Danco to "secure" the Covid building, and, in response to those instructions, Danco placed four to five "cones and [two rows of] tape ... across the doors and on the other side of the entrance" of the Covid building. Id. at 76-77. The "caution tape" was red and had the word "danger" written on it in both English and Spanish. Id. at 77. When Danco left the premises on May 28 after moving the Covid building, Hospital did not instruct Danco to lock the door to the building, nor did Danco possess or request a key that would be necessary to do so. Therefore, the entrance to the Covid building was not locked when Danco completed the move and left the premises on May 28. In addition, Hospital did not instruct Danco to remove the Emergency Entrance sign from the Covid building, Danco did not do so, and the sign was still in place on the building when Danco left the job site on May 28.
[¶8] On August 6, 2020, Kathleen took her six-year-old son to Hospital to be evaluated and treated for injuries he had sustained from falling. When Kathleen pulled into the Hospital parking lot, she saw the temporary building with the "Emergency Entrance" sign and the bifold "Patient drop off" sign. Id. at 104. Kathleen also saw "a couple of cones . . . off to the side" of the entrance door, but not "directly near the doors." Id. at 105-06. The "danger tape" had been removed from the entrance door. Id. at 90-91.
[¶9] Because her son was in too much pain to walk, Kathleen carried him to the building, opened the door, and stepped inside. When she did so, she tripped over the brace that Danco had installed horizontally across the doorway near the floor. As a result of the fall, Kathleen sustained serious injuries necessitating multiple surgeries.
[¶10] On March 4, 2022, the Rogerses filed a premises liability complaint against Hospital in which they alleged Hospital's negligence caused personal injury to Kathleen and resulted in loss of consortium for David. On April 19, 2022, the Rogerses filed an amended complaint that added Danco as an additional defendant. On July 21, 2023, Danco filed a motion for summary judgment. After briefing and hearings, on March 8, 2024, the trial court granted Danco's motion. Although the Rogerses' claims against Hospital remain pending, the trial court's order granting summary judgment is final and appealable under Indiana Trial Rule 54 by virtue of the trial court's entry of final judgment in Danco's favor and finding that "there is no just reason for delay." Id. at 11. The Rogerses now appeal that judgment.
Hospital did not file a brief opposing Danco's summary judgment motion or a brief in reply to the Rogers's appellate brief.
Discussion and Decision
[¶11] The Rogerses appeal the trial court order granting summary judgment to Danco on the Rogerses' negligence claims. We review a grant or denial of a motion for summary judgment under the same standard used by the trial court; that is,
[t]he moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. In determining whether summary judgment is proper, the reviewing court considers only the evidentiary matter the parties have specifically designated to the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party.Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012) (quotation marks and citations omitted).
[¶12] For purposes of summary judgment, a fact is "material" if its resolution would affect the outcome of the case, and an issue is "genuine" if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. Hogan v. Magnolia Health Sys. 41, LLC, 161 N.E.3d 365, 369 (Ind.Ct.App. 2020) (quoting Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), trans. denied. In reviewing a summary judgment, we "consciously err on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Hughley, 15 N.E.3d at 1004.
[¶13] Injured parties may recover for their damages under a negligence claim by proving: (1) the defendant owed them a duty; (2) the defendant breached that duty through conduct that fell below the appropriate level of care; and (3) the defendant's breach caused injury to the plaintiff(s). Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 685 (Ind. 2024). Summary judgment is rarely appropriate in negligence cases. See, e.g., Kader v. State, Dep't of Corr., 1 N.E.3d 717, 726 (Ind.Ct.App. 2013) (citing Kennedy v. Guess, Inc., 806 N.E.2d 776, 783 (Ind. 2004)). "This is because issues of negligence, contributory negligence, causation, and reasonable care are more appropriately left for the determination of a trier of fact." Id. (internal quotations and citation omitted). While the element of duty is generally a question of law to be determined by the court, the elements of breach and proximate cause "generally present questions of fact that must be determined by a factfinder." Smith v. Walsh Constr. Co. II, LLC, 95 N.E.3d 78, 84 (Ind.Ct.App. 2018), trans. denied. Thus, whether a party breached its duty and thereby proximately caused injury are factual questions "generally not appropriate for summary disposition." Williams v. Ind. Dep't of Corr., 142 N.E.3d 986, 1008 (Ind.Ct.App. 2020) (internal quotation and citation omitted).
[¶14] As a matter of law, a contractor has a duty to use reasonable care in both his or her work and the course of his or her performance of the work to "those who might reasonably be foreseen as being subject to injury by the breach of the duty." Briesacher v. Specialized Restoration and Constr., Inc., 888 N.E.2d 188, 192 (Ind.Ct.App. 2008) (citing Peters v. Forster, 804 N.E.2d 736, 742 (Ind. 2004)). Thus, a contractor is liable for injuries to third persons, even after acceptance of the work by the owner of the property, "where the work is reasonably certain to endanger third parties if negligently completed." Id.
[¶15] Foreseeability of harm is a component of both duty and proximate cause in a negligence claim. Himsel v. Ind. Pork Producers Ass'n, 95 N.E.3d 101, 110 (Ind.Ct.App. 2018), reh'g. denied, trans. denied. However, foreseeability in the context of the element of duty
is evaluated differently than foreseeability in proximate cause determinations: while the latter foreseeability analysis requires a factfinder to evaluate the specific facts from the case, the former involves a lesser inquiry, requiring a court, as a threshold legal matter, to evaluate the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence. By focusing on the general class of persons of which the plaintiff was a member and whether the harm suffered was of a kind normally to be expected, courts must assess whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it, not merely that harm is sufficiently likely.Cavanaugh's Sports Bar &Eatery, Ltd. v. Porterfield, 140 N.E.3d 837, 840 (Ind. 2020) (quotation marks and citations omitted).
[¶16] Here, Danco had a duty to the Rogerses because it was foreseeable that a hospital patron (the general class of persons of which Kathleen was a member) would experience harm as a result of the condition in which Danco left the Covid building after completing its work. The Covid building was in close proximity to the Hospital's emergency room. It was foreseeable that patrons of the hospital would be walking around the hospital premises and could walk into the unlocked building with an "Emergency Entrance" sign on it. Additionally, it was foreseeable that visitors could then injure themselves on the brace placed low to the floor in the building's threshold. It was also foreseeable that the caution tape and cones erected to prevent such entry into the building could be moved at any time by any person-or even by a strong wind. That general likelihood of harm would be serious enough to induce a reasonable person to take precautions to avoid it, as shown by Hospital's instruction to "secure" the building and Danco's placement of cones and tape in front of the building entrance. Appellant's App. v. II at 77.
Who decided to move the defunct building close to the emergency department entrance, placed the emergency sign on the building, and failed to lock the door to the building may be relevant to the negligence elements of breach and causation, but those facts are not relevant to foreseeability in the context of Danco's duty; what is relevant in the latter context is that a reasonable contractor in Danco's position would have been aware of all those conditions of the Covid building when it left the building site on May 28.
Thus, the fact that two months had passed by the time Kathleen was injured is not relevant to the foreseeability of harm within the context of duty-the cones and tape could just as easily, and foreseeably, have been moved (and a person then injured from entering the unsecured building) the day after Danco left the sight.
[¶17] Whether Danco breached its duty by merely placing the temporary barriers of moveable cones and tape instead of a more permanent barrier-such as a lock on the door-is a question for the fact finder. "'Whether a particular act or omission is a breach of duty is generally a question of fact for the jury[, but i]t can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.'" Briesacher, 888 N.E.2d at 194 (quoting N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003)). Here, some material facts are not undisputed. For example, although it appears to be undisputed that Hospital did not provide Danco with a key to the Covid building's door, Danco did not designate evidence establishing that it requested, but was denied, such a key. Nor did Danco designate evidence establishing that some other type of lock could not be placed on the door to the entrance.
To be clear, we do not hold that this is the only material fact in dispute, but one example of a disputed material fact that makes summary judgment inappropriate.
[¶18] Moreover, the fact-finder reasonably could draw multiple inferences from the material facts that are not in dispute. For example, it is undisputed that Danco left a brace across the threshold and low to the floor inside of the building's entrance door, did not inform Hospital of that brace or its location, and placed cones and tape in front of the building's unlocked entrance before it left the job site. From those facts, a jury reasonably could conclude that Danco fulfilled its duty to leave the building in a safe condition by placing the cones and caution tape in front of the door to prevent entry. However, it would also be reasonable for a fact-finder to conclude that the temporary nature of those barriers made them inadequate to secure the building and prevent third parties from tripping over the brace that only Danco knew it had erected and left in place. Whether Danco adequately secured the building such that it did not breach its duty to third parties on hospital grounds is a question of fact for the jury. Therefore, summary judgment is inappropriate, and the trial court erred when it granted Danco's motion.
Similarly, the undisputed material facts do not establish the proximate cause of Kathleen's injuries, and whether Danco's actions or omissions were a proximate cause of the injuries is a question of fact for the fact finder. See, e.g., Briesacher, 888 N.E.2d at 194.
Conclusion
[¶19] The trial court erred when it granted Danco's motion for summary judgment because there were disputed material facts, and multiple reasonable inferences could be drawn from the material facts that were undisputed. Because any doubts about the facts or the inferences to be drawn therefrom are to be resolved in favor of the non-movant, see, e.g., Reed, 980 N.E.2d at 285, we reverse the summary judgment and remand for further proceedings.
[¶20] Reversed and remanded.
Bradford, J., and Foley, J., concur.