Jennifer A. Smith v. Walsh Construction Company II, LLC and Case Foundation Company, Irving Materials, Inc., Bernardin Lochmueller and Associates, Inc., RoadSafe Holdings, Inc., Roudebush Grading, Inc.
95 N.E.3d 78
| Ind. Ct. App. | 2018Background
- In Feb. 2013 Joshua Smith died after losing control on SR-25 near a bridge construction site; mud and sediment on the roadway were alleged causes.
- INDOT contracted Lochmueller to design the Project (including erosion control and maintenance-of-traffic plans); Walsh was the general contractor and subcontracted Roudebush (erosion control), RoadSafe (signage), Case (bridge shafts), and IMI (concrete deliveries).
- Lochmueller’s plans did not call for silt fence at the accident curve and specified reduced speed signage during Phase I, but timing for installation was left to the engineer.
- Evidence conflicted about whether the roadway was mud-free shortly before the crash; witnesses, photographs, IDEM reports, and experts supported that mud/tracking and washout were ongoing problems.
- Trial court granted summary judgment for Lochmueller, IMI, Roudebush, and RoadSafe, denied Walsh’s motion; on appeal the court affirmed denial for Walsh, affirmed RoadSafe’s judgment, and reversed as to Lochmueller, IMI, Case, and Roudebush, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Walsh owed a duty to motorists | Walsh contracted to protect public safety and retained duties (inspections, cleaning, entrances) so it owed a non-delegable/assumed duty | Walsh argued duties were delegated to subs and it owed no duty as a matter of law | Court: Walsh had a duty as matter of law (contractual/non-delegable and by assumption); denial of its SJ motion affirmed because factual disputes on breach/causation exist |
| Liability of design engineer (Lochmueller) for defective erosion/traffic design | Lochmueller’s erosion and maintenance-of-traffic plans were deficient; expert testimony created triable issue on breach and causation | Lochmueller said it met professional standard and plans were approved; trial court found no triable issue | Court: Reversed — expert evidence raised genuine issues whether design breached standard and proximately caused accident |
| Liability of IMI (concrete supplier) for tracked mud | IMI’s deliveries tracked mud; purchase orders and invoices tie deliveries to Project; common-law duty to avoid creating road hazards | IMI argued no contractual duty for those deliveries and lack of foreseeability; trial court concluded no duty | Court: Reversed — factual disputes exist about contractual scope and common-law breach/causation; remand required |
| Liability of Case (onsite contractor) for tracking/cleanup | Case had duty to inspect, prevent tracking, clean, and notify Walsh; circumstantial evidence (deliveries, activity before crash) creates triable issues | Case pointed to testimony that site was clear when last employees left and denied breach | Court: Reversed — genuine issues of fact regarding presence of mud, breach, and causation |
| Liability of Roudebush (erosion-control installer) for failing to require/add measures | Roudebush had contractual duties (keep adjacent public streets clean, adjust controls for haul/entrance locations); experts and IDEM reports show measures were insufficient and washout contributed to roadway mud | Roudebush argued it installed measures per plans and had no duty beyond the plans; trial court found no causation | Court: Reversed — material disputes whether Roudebush should have implemented additional measures and whether that contributed to accident |
| Liability of RoadSafe (signage contractor) for failure to warn/reduce speed | Estate argued lack of warning/reduced speed signs contributed to hazard | RoadSafe followed engineer/INDOT directives; plans did not require mud/construction-entrance signage; reduced-speed sign timing left to engineer; RoadSafe had no duty until directed | Court: Affirmed for RoadSafe — as a matter of law it had no duty to place mud warnings or early speed reduction absent engineer/INDOT direction |
Key Cases Cited
- Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009) (summary-judgment standard; draw all reasonable inferences for non-moving party)
- Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. 2010) (elements of negligence)
- The Hunt Constr. Grp. v. Garrett, 938 N.E.2d 794 (Ind. Ct. App. 2010) (non-delegable duties and when principal is charged by law or contract)
- Gwinn v. Harry J. Kloeppel & Assocs., Inc., 9 N.E.3d 687 (Ind. Ct. App. 2014) (contract provisions can ‘affirmatively evince’ assumption of duty)
- Pier 1 Imports (U.S.), Inc. v. Acadia Merrillville Realty, L.P., 991 N.E.2d 965 (Ind. Ct. App. 2013) (standing/ability of remaining defendant to appeal co-defendant’s dismissal)
- Mayberry Cafe, Inc. v. Glenmark Const. Co., 879 N.E.2d 1162 (Ind. Ct. App. 2008) (standard of care for design professionals)