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. Recl.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)