Bagley v. Insight Communications Co., L.P.

a misde- indi- charged with Record, Nothing in the record p. 76. A defendant personally Hanna-Womack cates by by jury a trial may demand meanor trial, jury not waived either right therefore to a her demand filing a written Further, is no writing. there verbally or in his first (10) days before ten later than was ad- that Hanna-Womack indication failure of a The date. trial scheduled consequences of her by of the counsel vised by jury a trial as to demand defendant ZokAi, su- jury trial. failure to demand rule shall constitute by this required pra. by jury trial by him of ...[.] waiver writ- record is devoid Because the rule, has stated: this court applying right jury trial or verbal waiver ten consistently held have decisions Our Hanna-Womack, regard- by or even advice error for a court to fundamental it is attorney, conclude by her we ing waiver jury trial without deny a defendant standard she did that under above personally. from him eliciting a waiver right. voluntarily her knowingly or waive pursuant made cannot be A valid waiver required to receive the The failure State's of an advise 22 in the absence to C.R. voluntary demands knowing and waiver of the conse by the trial court ment reversed and a new that her conviction be by trial to demand a of a failure quences re- a new trial is granted. trial Because days prior to the ten jury not later than unnecessary to address quired, it is trial date.2 remaining raised Hanna-Wom- issues (1988), Ind.App., v. State

Vukadinovich ack. appeals The court trial. and remanded for new Reversed intelligent knowing and infer a cannot does not demon a record that waiver from CHEZEM, JJ., concur. HOFFMAN choice. Za personal strate the defendant's (1990), Ind.App., khi v. State 683, 685. reading the record re A careful right jury that Hanna-Womaek's

veals by the trial briefly addressed trial was BAGLEY, of theEstate Max Guardian At her initial hear occasions. court on two Appellant- Bagley, of Richard read Hanna-Womack ing, the trial court Below, Plaintiff rights, contained which statement following passage: speedy and right to a You do have CO., L.P., INSIGHT COMMUNICATIONS by jury in the

public trial Craw Cablevision Steve d/b/a alleged- the offense was county in which Friend, Appellee-Defen Sam ly committed. dant Below. Record, right p. Hanna-Womaek's No. 29A02-9208-CV-365. summarily mentioned jury again trial was Indiana, Court the trial pre-trial hearing, in which at the District. Third judge stated: to, ah, going I'm set this matter . 15, 1993. Nov. Ah, a trial since these are then.

misdemeanors be set would were, jury trial

bench trial then unless a demanded. [sic] argues had never submitted a distin- "Even if Vukadinovich 2. The State that Vukadinovichk is Vukedinovich, guishable demand, the defen- jury required because in we would be written actually jury dant filed a demand for trial which Vukadinovich, supra reverse his convictions." However, untimely. this court was denied as 839, n. 5. at distinction, stating, specifically rejected alleged that Emswiller, and Friend. Jr., Clarke, T. Russell se- had Insight and Crawford P.C., Indianap- Clarke, Williams, Noland incompetent subcontractor lected olis, appellant. negli- therefore Geddes & Nelson, Smith Hume Reid negli- Bagley asserted gence. Knapp, Mulvaney, Paul J. Green, Karl L. Crawford and that the ladder gently used In- Spilman, Welsh Bingham Summers determining not liable for Insight were and appellee. for dianapolis, safe- a ladder how to use Friend knew that was Crawford claimed that Bagley also ly. STATON, Judge. Rich- to cover insurance required to have the of ("Bagley"), Guardian Bagley Max with contract to his injuries pursuant ard's ("Richard"), ap Bagley of Richard Estate Insight and Crawford Insight. Both entry of sum trial court's from the peals a After summary judgment. moved for Insight Commu of in favor mary judgment en- motions, trial court the hearing on the Steve Craw ("Insight") and nication Co. In- in favor of summary judgment tered presents two Bagley ("Crawford"). sight and Crawford. for our review:1 issues of material genuine issues I. Whether I. Insight and as to whether fact exist hired an incom- Crawford Hiring Subcontractor Negligence in petent subcontractor. Insight and Craw- argues that Bagley as- an breached II. Crawford Whether of Friend negligence the liable for ford are insurance for provide sumed him to selected they negligently because injuries. Richard's determining that he without install cable re- Insight and Crawford competent. We affirm. duty to Richard no that owed spond nonmov- to the most favorable The facts shows undisputed evidence the and that Insight a (Bagley) reveal ing party using they were serving counties company cable television summary judg- Friend. We conclude County. Marion Craw- east of north and Bagley. against entered properly ment was who ford was an Insight. for television installed cable reviewing entry of sum When indepen- engaged another also position in same judgment, we stand mary ("Friend"), contractor, Sam dent the same and consider the trial court as Insight. Richard was an install cable has car moving party issue: whether of Friend. employee demonstrating that there of ried its burden 26, 1988, Richard was se- January On fact issue of material genuine installing cable with verely injured while matter as a judgment that it is entitled standing near a lad- Richard was Friend. Ind., 609 Deery law. Jordan of the ladder was on when der consider the 1104. We fell Friend. Friend slipped from beneath parties by the the trial court designated to Richard, head was driv- Richard's onto the nonmov- light most favorable in the they had install ground rod en into Furniture party. Rosi v. Business ing permanent brain ed. Richard sustained (1993), Ind., N.E.2d 431. Once Corp. damage. burden, its has carried moving party nonmoving party the burden shifts guardian of Rich- Bagley, acting as genuine is existence of establish the estate, against Insight, filed suit ard's opposition to sum- appellate in his mofion trial court issue for articulated a third review, ie., genuine Rule mary judgment. issue of Pursuant to Ind.Trial "whether there is following and Craw- appeal fact as to whether 56(H), material on an issue first raised proper provide safe- their ford breached may summary judgment not form grant brief, p. ty procedures." Appellant's 1. Howev- appeal. reversal on the basis for er, Bagley designate to the this issue did not 352; fact, conflicting infer (1989), Mo.App., Restate of material 770 S.W.2d sue (Second) 411. The Federal undisputed evidence. of Torts arising from ment ence § Livings for the Circuit Seventh Court Banking Co. v. Midwest Commerce recognized also opined that Indiana has 993), Ind.App., 608 N.E.2d (1 Farms, v. Pinkerton the doctrine. Stone rule, individual is As a 941; (7th Cir.1984), 741 F.2d Hixon v. negligence acts or Cir.1982), (7th Co. Sherwin-Williams relationship master another unless relied Both and Hixon F.2d 1005. Stone them; so, when exists between and servant supreme opinion court's Board upon our employment exercising independent County v. Commissioners Wabash another, em person injury to causes 426, 22 N.E. 134 Pearson liable for party will not be ploying that Wabash) (hereinafter support their con to acts or resulting party's from that injuries clusions. Glenroy Co. v. Const. omissions. Ramon supreme court in considered Our Wabash (1993), Ind.App., N.E.2d trans. against county a for its failure to an action denied; Northern Ind. Pub. Serv. Perry v. public bridge. One count of the maintain a (1982),Ind.App., 433 N.E.2d trans. Co. county knowingly alleged that the action denied; Prest-O-Lite Co. v. Skeel see also repair incompetent contractors selected There (1914), 106 N.E. 365. bridge left the bridge the who fore, ordinarily responsi is a contractor response In to the in condition. an unsafe injuries employees of its ble count, supreme the county's attack on the Ramon, gent independent subcontractors. concluded: (1986), Ind.App., Lockard supra; Lewis v. that a public corporation "If a knows denied. trans. unsafe because of bridge highway or is exceptions general to the A of number repairs, and it undertakes the need of developed non-liability have been rule of ordinary care and repair, must exercise it imposed a years. Courts have over the corpora If, charged, the skill. as is here persons when of third benefit the persons to employed it tion knew when in- requires performance the of a contract incompe that were repairs make the work; tringically dangerous when ordinary care. A tent, exercise it did not charged by by law or contract with is the of charged with corporation create a specific duty; when the act will bridge repair in must select keeping a nuisance; performed act to be when the the persons to do proper means and the injury cause to others unless probably ordinary work, care if the exercise of harm; the taken to avoid when due care is If, made. howev a selection can be such illegal; or when a performed act be selecting er, in suit ordinary care is used duty of has assumed a party by its conduct per requiring in persons, and able Ramon, supra. supra; Perry, care. See skill with exercise their sons selected to diligence, the that Bagley prudence has not asserted reasonable unsafe, there will be remains responsible bridge are due still Rather, v. requests liability. City he North Vernon foregoing exceptions. principal apply the doctrine that a But that we N.E. Voegler, 103 Ind. 314 821]. [2 corpora torts a hired inde- may liable for the are that here the averments were persons selected tion knew that the consequences of if the pendent contractor their work knew that incompetent and competent failure to select a negligent unskillfully negligently done was so upon the harm which cause bridge in unsafe condi as to leave suit is based. therefore, tion, is, liability and there negligent hiring of an This doctrine resulted from this injury for the which accep has independent contractor received duty." negligent breach of Lee Payne in several states. See v. tance 429, 22 N.E. at 135. Wabash, supra at 677; (E.D.Tenn.1988), F.Supp. Ray v. Pipe Midwest Recently, in Detrick v. 461; Conn.App., 548 A.2d Schneider Steel, Ind.App., 598 Louis Station Associates Sullivan St. Stone, supra, upon Q. you do? relied Now this court adopted the Indiana had to conclude Yeah, happened, it I mean A. afie'r ex- a subcontractor negligent selection probably. non-iability rule of general ception to the when Q. you'd used a ladder before But How- situations. independent contractor in farm? up on the growing you liability impose un- ever, court did not A. Yeah." because Detrick der this doctrine added). Record, (emphasis pp. 561-62 proximate not established plaintiff had hindsight, opinion, cause. ques training irrelevant he needed case, Bagley has the instant negligent of whether Crawford tion he would be to demonstrate failed the accident. hiring Friend before hiring under the to relief entitled any presented We contractors doctrine. record, otherwise safety or was poor had a the Connecti supra, Ray, that in observe single accident incompetent, other than Appeals concluded cut Court before involving The evidence Richard. imposed by the doctrine liability vicarious knew that Crawford the trial court showed injuries sustained extends com another cable had worked for inapplicable to em was it public, but 728, Record, pp. installing pany cable. The federal the contractor. ployees of Hizon, recognized, a supra, court in As the that "a re supra, noted Payne, in quiz a contractor duty principal has 411 to Section the illustrations view of all contractor's concerning of the the details any ex to reveal fails of the Restatement Thus, to es Bagley has failed experience. employee of an liability to an ample of any facts existence of tablish negligent hir on a independent contractor was incom that Friend demonstrate would supra, at 679. theory." Payne, ing by Crawford to any effort petent or that Therefore, claims on behalf Bagley's would have competence determine scope of the within the do not fall Richard supra; Payne, the accident. See avoided doctrine. Sullivan, supra. Also, present failed to Bagley has that, if even we conclude We therefore support a conclusion which could competent inde- duty to hire a imposed a incompetent. It has been was Insight, on Crawford pendent contractor single incidence determined that summary properly entered the trial court incompetence prove gence is insufficient disgorge Bagley did not judgment because negligent hiring of purposes that Craw- to establish sufficient evidence doctrine. Sull independent contractors See duty by hir- Insight breached ford or only ivan, alleged supra. As ing Friend. Friend, his negligence by instance of one liability support complaint is insufficient to IL. the doctrine. under Further, facts do not show that Coverage Insurance training in the he needed Friend believed con that Crawford's Bagley asserts deposition, Friend At his of a ladder. use required Crawford with tract testified: coverage for the em maintain insurance though you feel as needed "Q. you Did therefore, subcontractors; his ployees of using the training Steve as to from for Richard's be liable Crawford should ladder? con replies that injuries. Crawford it at the really think about A. I didn't him, duty any such on impose did not tract time. duty was of such and that breach injuries. you

Q. retrospect you of Richard's do think need proximate cause In it? imposed -ed on liability is that no We conclude A. I Crawford. Probably now do. deciding, that Craw- nuisance; (4)

Assuming, without the act will create a where performed proba- provide where the act to be some contractual ford owed bly injury to others unless due cause insurance, Bagley admits even harm; precaution is taken to avoid satisfy would breach of such (5) performed where the act cause, proximate requirement of traditional illegal." required liability before ordinarily which is imposed. will be Id., at 159 N.E. at 765. Circuit, Stone, supra, in The Seventh agree I do not that Board Commis- rejected argument, such

considered County v. Pearson sioners Wabash a lack of insurance has no concluding that N.E. stands Stone, negligence. connection causal proposition adopted that Indiana has Detrick, supra, also at supra, at 947. See hiring the doctrine of of an inde- Bagley's decline invitation 1081. We pendent Detrick v. Mid- contractor. See requirement proximate cau- modify the Steel, Ind.App., Pipe west negligence in actions. Since Craw- sation Rather, Wabash insurance did not ford's failure to have charged public corporation with injuries, cause Richard's Craw- proximately maintaining a specific duty safe injuries. is not Hable for those and, therefore, bridge, ap- more Wabash well-recognized propriately fits under the Judgment affirmed. exception pertaining to situations where a nondelegable duty charged with a J., HOFFMAN, files concurs results & at by law or contract. See Wabash SHIELDS, J., separate opinion which I concur. N.E. at 185. all other matters concurs. HOFFMAN, Judge, concurring in result. SHIELDS, J., concurs.

I concur in result. agree

I do not that Indiana has

adopted negligent hiring the doctrine of

an contractor. general rule that an

Indiana follows individual is not liable for the acts or Marriage In re the of Karen J. relationship gence of another unless the HUFFMAN, Appellant- them, master and servant exists between Petitioner, injury done and where an been exercising independent employ party ment, person employing party HUFFMAN, Appellee- Carl A. injuries resulting liable for from Respondent. party's wrongful acts or omissions. 60A01-9304-CV-142. No. Perry v. Northern Ind. Public Serv. Co. (1982),Ind.App., 433 N.E.2d 46. There Indiana, Court of fore, general is not District. First injuries employees of its sub v. Lockard Ind. contractor. Lewis Nov. excep App., 498 N.E.2d 1027. Five Rehearing Denied Jan. originally rule were tions to enumerated Constr. Co. v. Cobb Scott Ind.App. 159 N.E. 763:

"(1) requires per- Where the contract intrinsically danger

formance of work

ous; (2) law or where (8) charged specific duty; contract with a

Case Details

Case Name: Bagley v. Insight Communications Co., L.P.

Court Name: Indiana Court of Appeals

Date Published: Nov 15, 1993

Citation: 623 N.E.2d 440

Docket Number: 29A02-9208-CV-365

Court Abbreviation: Ind. Ct. App.