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Wednesday, July 14, 2004

Indiana Decisions - Three from the Court of Appeals Today

Charles S. Coffman, et al. v. Robert Rohrman (7/14/04 IndCtApp) [Tort; Real Estate]
Baker, Judge

Appellants-defendants Charles S. Coffman and the Metropolitan Real Estate Corporation (collectively, Metropolitan) appeal the judgment entered in favor of appellee-plaintiff Robert V. Rohrman in Rohrman’s fraud and negligence actions brought about by Coffman’s failure to inform Rohrman of material facts with regard to a contract for the sale of real estate. Specifically, Metropolitan claims that the applicable statute of limitations bars Rohrman’s claims. Additionally, Metropolitan alleges that the trial court erred as a matter of law in finding that Coffman owed a professional duty to Rohrman because no expert evidence of duty was presented. In the alternative, Metropolitan argues that even if it did breach a duty, the trial court erred in refusing to apply comparative fault principles and in awarding attorney fees to Rohrman. Concluding that no error occurred at trial, we affirm. * * *

In light of the issues discussed, we conclude that the trial court did not err in finding that Rohrman’s claim was not barred by the statute of limitations. Furthermore, we conclude that Metropolitan had a statutory duty to disclose material facts. Additionally, we note that the Comparative Fault Act did not require the trial court to specify the percentage of fault attributable to each party. Finally, the attorney fees expended by Rohrman were foreseeable consequences of Coffman’s actions and, thus, recoverable. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.

Dreyer & Reinbold, Inc. et al v. Leib, Jere W. & Arlene S. (7/14/04 IndCtApp) [Venue]
INTERLOCUTORY APPEAL FROM THE ALLEN SUPERIOR COURT SMALL CLAIMS DIVISION
Vaidik, Judge
Dreyer & Reinbold, Inc., a BMW dealership in Indianapolis, and BMW of North America, LLC (“BMW NA”) appeal the Allen County small claims court’s denial of their motion to correct venue. Because the evidence shows that venue is improper in Allen County, we conclude that the court erred in denying the motion to correct venue. We therefore reverse the small claims court. * * *

In sum, after examining the three categories listed in Small Claims Rule 12, we conclude that venue is not appropriate in Allen County but rather is appropriate in either Madison or Marion County. Accordingly, Dreyer & Reinbold and BMW NA have established prima facie error on appeal. We therefore remand this case with instructions for the small claims court to order the action—at the option of the plaintiffs—either to be transferred to a proper county or to be dismissed without prejudice. Reversed and remanded.
SULLIVAN, J., and MAY, J., concur.

Leonard & Patricia Daisy v. Thomas Roach (7/14/04 IndCtApp) [Contractor Liability; Premises Liability]
Sullivan, Judge
Leonard and Patricia Daisy appeal from the trial court’s grant of summary judgment in favor of Thomas Roach [homeowner] on their claim of negligence for injuries suffered by Leonard. [The issue:] whether summary judgment was improperly granted to Roach. We affirm.

Roach had contracted with Prosser Construction (“Prosser”) to perform construction work on his home in late 1999. Roach acted as his own general contractor on the construction project. Leonard was employed by Prosser to perform work on Roach’s home in early 2000. He was involved in finishing the roof of the house and was working on the roof on February 15 when his accident occurred. Leonard’s supervisor had asked him to get off the roof and get some supplies, but the ladder he had used to climb onto the roof had been moved. His supervisor told another worker to put the ladder back up against the house so that Leonard could get down. Leonard then proceeded to climb down the ladder, but as he did, the ladder slid on ice on the frozen ground and Leonard fell approximately twelve feet. As a result of the fall, Leonard suffered severe injuries, including a shoulder injury for which he had two surgeries. He continues to suffer from headaches and dizziness. * * *

To support their claim for damages, the Daisys assert that Roach is liable as a general contractor, and in the alternative, that he is liable under a theory of premises liability. In asserting their claim for liability as a general contractor, the Daisys rely upon evidence indicating that Roach was aware that the ground was frozen and that the manner in which ladders were used was unsafe.
As a general rule, a principal is not liable for the negligence of an independent contractor whom he employs. Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1267 (Ind. Ct. App. 2002), trans. denied. However, five exceptions to the general rule have been recognized: (1) where the contract requires the performance of intrinsically dangerous work; (2) where the principal is by law or contract charged with performing the specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. “Duties associated with the five exceptions are considered non-delegable, and the principal is liable for the negligence of the contractor because the responsibilities are deemed ‘so important to the community’ that the principal should not be permitted to transfer those duties to another.”

The Daisys claim that the exception applicable here is that the act to be performed will probably cause injury to others unless due precaution is taken. * * *

At the time of the accident in February, the ground was frozen and icy, a naturally occurring condition during the winter months in northern Indiana. See footnote And while those conditions may have contributed to the accident, they were not the cause. The cause of the accident was the failure of Prosser employees to safely secure the ladders they used to climb onto the roof of the house. There is no assertion that Roach had any control over the manner in which the ladders were used. While it may be true that Roach had ordered the workers to shut the doors to the home, obtain supplies, and generally directed how he wanted the house constructed, the evidence does not support the conclusion that Roach was in control of the manner in which the ladders were used. Rather, the only conclusion available from the facts before us is that Prosser controlled the use of the ladders on the site and the area where the accident occurred at the time it occurred. Thus, summary judgment was properly granted in favor of Roach. The judgment of the trial court is affirmed.
MAY, J., and VAIDIK, J., concur.

Posted by Marcia Oddi on July 14, 2004 02:01 PM
Posted to Indiana Decisions