*1 Becker, BECKER and Catherine Jack

Appellants-Plaintiffs, Cindy Kreilein

Keith KREILEIN Krueger, Appellees-

and Steven

Defendants.

No. 19A01-0102-CV-49. Indiana. Appeals

Court of

Aug. 2001. September

Rehearing denied

Q41 Zink, Henderson, Daily, R.D. Withrow & DeVoe, Drummy, Kightlinger B. John & IN, Gray, Indianapolis, Attorneys Ap- pellees.

OPINION RILEY, Judge. OF THE

STATEMENT CASE Appellants-Plaintiffs, Jack and Cather (hereinafter collectively ine Becker re Beckers"), appeal ferred to as "the the grant Appellees-Defen- trial court's (herein dants', Cindy Keith and Kreilein collectively after referred to as "the Kreileins"), second Motion for Judgment. appeal The Beckers also the grant Appellee-Defen- trial court's dant's, Krueger1 (Krueger), Steven See- Summary Judgment. ond Motion for We reverse.

ISSUE ap- The Beckers raise three issues on we consolidate and restate as peal, which court erred in whether the trial follows: Kreileing' Krueger's both summary judgment. motions for second AND HISTORY FACTS PROCEDURAL matter, At all relevant times this Kreileins resided on Greene Street Jas- Indiana, on per, The Beckers resided Street, on the Leopold which is located and several opposite side block away from the Kreileins. houses Kreileing' 3, 1997, the April Prior to up and repeatedly sewer line had backed into their overflowed basement. Krueger, plumb- hired a licensed Phillips, K. Phillips, Phillips Mark & er, P.C., Boonville, IN, problem. this at- Attorney Appel- resolve Several line failed to tempts lants. to clear the sewer brief, spelling used in his will is use 1. We should note that name spelled differently throughout the record of "Krueger." which evidence, "Krueger" "Kruger." either We 1997, heavy May Jasper experienced In so a decision was problem, resolve line. carried the sew- heavy rains. The rainfall replace made to percolated which had surface age, Krueger contracted The Kreileins city-owned the Kreileins' down yard, line, and a new line replace the sewer Eventually, alley. right-of-way April on was installed property, Beckers' sewage ran onto the expensive be less that would determined down from the Kreil- which is three lots line a new loca- a new sewer to install a new line tion, place than hill. property, rather at the bottom of a eins' location, ex- existing because filed December the Beckers On driveway ran underneath isting line City Complaint against Jasper garage. *4 property for dam- City Jasper of Utilities 3, 1997, installing prior April On injury, alleging that ex- age personal and Kreileins, Krueger line for the new sewer their sewage contaminated posure raw line from the the old sewer disconnected person. and The Beckers' claims home main sewer and from the Kreileins' home City and against City Jasper property. Krueger ran which behind were dismissed. Subse- Jasper Utilities ground line in the without left the old 4, 1998, August the Beckers quently, on he end of the line because capping either naming the Complaint filed an Amended "dead line" and the it to be a believed Krueger as defendants. The Kreileins and require capping code did not plumbing maintained: Complaint Amended 13). Appellants (Appendix of of such lines. negligence of both 5. That due to the 11, 1997, noticed Keith Kreilein May On Beckers Krueger, [sic] the Kreileins and backyard in and called a wet area his County condemned house was 12, 1997, in- Krueger Krueger. May On as unhabitable. Department Health City Krueger called spected the line. Further, have suffered life- Beckers (Utilities) to inform them Jasper Utilities injury as a re- threatening, permanent their assistance problem and to seek sewage. exposure of their to the raw sult day, Utilities testing the line. That same negligence of both 6. That due to the jet report- and tested the line with a sewer Krueger, Beckers the Kreileins and wrong. Krueg- nothing ed that there was anguish, mental have suffered extreme line, but no through ran water er income, foreclos- have loss of have been appeared. additional water mortgage, residence primary ed on their Kreileing' yard in the the wet area When personal loss of property, loss of real remained, called Utilities on Keith Kreilein belongings, present property and both 16, 1997, further inves May requested and expenses, medical loss of con- and future 19, 1997, Utilities offi tigation. May On sortium, suffering, incurred le- pain Trujilos'2 sewer line with cials tested the damages. unspecified and other gal fees in the dye appeared wet dye. The soon 18). Appellants (Appendix of indicating that yard, area of the Kreileins' the Kreileins September On Truijilos' house was sewage from the Summary Judgment. for filed a Motion yard. directly draining into 14, 1999, filed a Krueger also On October to cor immediately asked Utilities Keith Summary Judgment. April On Motion for 2, 1997, sewage rect the On June leak. 13, 2000, house on both the hearing the Kreileins' was held Utilities returned to Summary Judgment Motion for Kreileins' problem. and remedied the neighboring house on Trujilos 2. The live in a Street. Greene Summary Judg- Motion for 11. Neither Jack Becker nor Cathy May ment. the trial court On present Becker was during any of the Findings its of Fact and filed Conclusions repairs. granted Law. The trial in part court 12. Neither of the Beckers has [sic] part summary denied motions any personal knowledge any as to con-

judgment. The trial court found that the any versations nor arrangements relat- following genuine issues of fact material ing to the sewer work between existed: and the Kreileins. 1. Kruger negligent Whether was [sic] 13. Mr. and Mrs. Kreilein had no in- failing cap the "dead line". in any volvement decision to leave the Kruger's 2. If cap failure to [sic] old uncapped. sewer line "dead line" negligent Kruger's was on part, [sic] whether such was 14. The Kreileins were never consulted proximate the Plaintiffs decision, any as to nor did any offer damages, any. [sic] , input regarding whether to the old leave If Kruger's failure cap [sic] sewer line uncapped, and there was sim- "dead line" was negligent, whether the ply no on discussion the matter. participated in such a decision *5 as to so make them liable as well. CONCLUSIONS OF LAW 16). (Appendix Appellants of genuine There are no issues of materi- 28, 2000, July On the Kreileins filed al fact which preclude judgment would their second for Summary Judg- Motion for the Kreileins on the Plaintiffs' Com- 23, 2000, August ment. On filed plaint; specifically, the Court finds as Summary his Second Motion for Judg- follows: ment. On December the trial court issued two separate Findings of Fact Law, granting Conclusions of one Kreileins' Summary second Motion for Kreileing law, 2. As a matter of had Judgment granting and the other Krueg- independent no duty investigate to Summary er's Second Motion for Judg- they whether shared a sewer line with ment. anyone they possessed because no Findings In its of Fact and Conclusions knowledge which might put have them of Law granting the second Mo- on notice of such a fact. Summary

tion for Judgment, the trial law, 3. As a matter of Mr. held, court in pertinent part, as follows:

accidental neighbor's disconnection of a FINDINGS OF FACT line, itself, sewer in and of does not

subject liability the Kreileins to because Krueger operated independent as an result, they 10. As a la- [the Beckers] contractor and a principal generally ter filed against claims the Kreileins and not independent liable for the torts of an Krueger, Mr. alleging that the Kreileins contractor. negligent were in conducting sewer re- 4. exception independent No to the pairs, that the Kreileins failed to warn case, contractor doctrine applies this the Beckers of sewage, and that the including the nuisance exception to the Kreileins failed to determine whether independent doctrine, shared a sewer any neigh- line with contractor be- prior hiring bors Mr. Krueger. repair cause sewer work does not nor- upon which relief not state a claim ordinary does in the nuisance a mally cause granted. work. such can be performing course of law, the Kreileins are matter of As a 5. perform obligation Any duty alleged decision any for not liable workmanlike fash- proper in a work uncapped, line the old leave duty was a by Kruger [sic] ion negligence, constituted decision such a There only. extended in such involvement they had no because Plaintiffs and duty alleged by specific no leaving the decision, option and the duty to the no Kruger [sic] assumed never capping was uncapped or line | only direct ob- Kruger's [sic] Plaintiffs. discussed. Kreileins, and this was to the ligation Appendix Kreilein's 78-81). (Appellee in nature. obligation was contractual Fact and Conclusions Findings of In its the contractual performance Motion Krueger's Second of Law not es- the Kreileins does obligation to court the trial Judgment, the Beck- independent an tablish held, part, as follows: pertinent main- an action can be upon which ers for per- in their claims 2. The Beckers did Kruger [sic] The work tained. no direct injury have suffered sonal unrea- which was not create a condition any work result impact as a physical inherently haz- sonably dangerous so Kreil- by Kruger [sic] performed inevitably personal lead to as to eing. ardous Therefore, had no Kruger injury. [sic] only contract Kruger's [sic] 8. That any action duty to the Beckers this matter was of work performance fails for want of Kruger against [sic] Kruger [sic] That Kreileins. with the *6 duty. relation- or business had no contractual the Beckers. ship with privity are not in 6. The Beckers repair his sewer performing in 4. That lability no and there is Kruger [sic] Kreileins, as- Kruger [sic]

work for the privity such absent the Beckers without specific no undertook sumed and inherently showing that the work was a Beckers. for the benefit dan- an imminent dangerous or created only of safety not to the health or ger LAWOF CONCLUSIONS also to to the contract but parties of materi- issues genuine are no There of sew- performance parties. third judgment preclude al fact which would a condition does not create er work Plaintiff against Kruger [sie] risk to health an imminent poses which as follows: exception safety, and therefore all defen- theory against 1. Plaintiffs met in requirement is not privity [sic], is a claim dants, Kruger including action. this only. negligence in 8-10). Appellants (Appendix recently alle- have raised 2. Plaintiffs have not been which gations of nuisance appeal. now The Beckers However, by plead- if even raised pled. upon no which there is basis

ing, AND DECISION DISCUSSION nuisance. a claim of maintain trial court argue that the The Beckers might Nuisance, any claim that the defendants' second in erred therefrom, in this not an issue is flow summary judgment. nuisance motions any claim for litigation,

945 I. Review Standard (2) plain statement of the claim and a demand for relief See Ind.Trial Rule reviewing of review when The standard 8(A). "The rules of procedure do not re summary grant judgment a or denial of is quire a complaint that state all the ele is well-settled. Our standard review the Rather, ments of a cause of action. same as it was for the trial court: whether rules are based on notice pleading in which genuine there issue of material fact moving plaintiff essentially party only plead and whether the is entitled need judgment as a matter of law. Miller v. operative in litigation." facts involved R.R., Inc., Grand Trunk Western 727 McDonald v. Smart Photo Professional 488, (Ind.Ct.App.2000). N.E.2d 491 We (Ind.Ct. Copy Corp., 664 N.E.2d 764 pleadings must consider the and evidence (citations omitted). App.1996) designated pursuant to Ind. Trial Rule Furthermore, Ellis, in Walker v.

56(C) deciding weight without 353, 360-361, Ind.App. 126 129 N.E.2d credibility. Summary judgment Id. should 65,68 (1955), denied, trans. this court held: granted only be such evidence shows genuine that there is no issue of material presents This case one of those situa- judgment fact and that is warranted aas tions wherein it is difficult to discern matter of law. Id. whether the basic charge in the com- case, plaint negligence In the trial court or a spe- this entered nuisance. As findings it, cific of fact and conclusions of law. complaint, we see although this 'nuisance', does not contain Specific findings and conclusions are nei- the word required prohibited ther nor may yet the sum- be considered as stating facts mary judgment Although spe- context. which show the existence of one.... review, findings appellate cific aid Coventry From Leasehold v. Co. Instead, binding are not on this court. Welker, 1982, App. 43 Ohio N.E. reviewing entry summary when an garner expression: we this 'It judgment, we stand the shoes of the ' may be said these two classes of trial court. is, overlap, practically cases all nui Co., Smith Allstate Ins. 681 N.E.2d an negligence sances have element of (citations (Ind.Ct.App.1997) 222-223 omit them, may and a case rise to *7 ted). point thing where the complained may a In Metzger be nuisance" v. Negligence II. and Nuisance Schultz, 1896, 454, 16 Ind.App. 43 N.E. outset, At the we must first discuss 45 N.E. it is 'A stated: properly whether the Beckers raised a nui may negligent nuisance result from the argument negligence sance within their acts of commission or omission of anoth stated, previously claim. As the trial er.' court, Findings in its of Fact and Conclu sions of Krueger's Law Second "nui- § Ind.Code 34-19-1-1 defines Summary Judgment, Motion for held that sance" as follows: any the Beckers did not raise allegations is: Whatever of nuisance their Amended Complaint. (1) health; injurious to Thus, the trial court held that the Beckers' (2) indecent; claim a claim in negligence only. is We disagree. (3) senses; offensive to the (4) relief,

To state a claim an a com obstruction to the free use of (1) plaint only need contain a short and property; 946 taken; is precaution unless due with the others essentially to interfere

so as (5) proper- illegal. performed of life or the act to be enjoyment where comfortable nuisance, subject of an and the a Id. ty, is action. Krueger was undisputed It is that mind, find that we the above With Therefore, we independent an contractor. argu- a nuisance raised properly Beckers exceptions. immediately look to the must claim. The negligence their within ment on the find that work We cannot negligence to the that due claimed Beckers perfor required sewer line Kreileins' raw Krueger, of both work; dangerous intrinsically mance home,. up in wound sewage likely illegal that it was nor can we find this raw sew- claimed that further Beckers injury to others. While condemned to be their house age caused by cap not a nuisance may have created un- Department as Health by County line, we end of the old ping either it, exposure As a result habitable. work, very its cannot find that allegedly caused sewage also the raw Fi nature, likely create a nuisance. would life-threatening perma- Beckers to suffer the Krefleins cannot find that nally, we clearly fall allegations injury. These nent per charged with by law or contract were least, categories

within, the four two of at Thus, duty. agree we forming specific nuisance, injurious ie. a that define do that the Kreileins the trial court the free use of health and an obstruction under which exception not fall within an find that the Consequently, we property. negligent for the they could held liable be Beckerg' essentially Complaint Amended contractor. independent acts of an from the nuisance resulted that a states There- the defendants. acts of negligent Duty B. notice of a on fore, defendants were consists negligence The tort of the Beckers' argument within nuisance elements;: 1) to the duty a owed three claim. 2) defendant; a breach of by the plaintiff The Kreileins III. 8) defendant; and, injury duty by the granted the court The trial by that proximately caused plaintiff to the Judgment, Motion for second 642 N.E.2d Wickey Sparks, breach. duty to Kreileins owed no that the finding trans. denied. (Ind.Ct.App.1994), 265 disagree. We the Beckers. element, the existence of The first Independent Contractor A. usually question plaintiff, owed Indiana, It is true Id. of law for the court's resolution. that a rule has been long-standing general Natural Gas In Eastern Indiana South negligence of principal is not liable Co., Ingram, 617 N.E.2d Inc. v. Bagley v. In independent contractor. an *8 this court held: (Ind.Ct.App.1993), Co., L.P., 658 sight Communications First, Indiana, degrees are no there (Ind.1995). However, 584, five N.E.2d 586 imposes duty. The law or recognized, they and have exceptions been duty duty and that one common law but (1) the contract re where are as follows: duty is the same due care. The is to use intrinsically quires performance the relations, the regard without to all (2) work; principal the where dangerous It includes the so- the case. facts of perform charged with by or contract law Consequently, duty to warn. called (8) the act will duty; where ing specific the exists, it is for the duty to use due care (4) nuisance; the act to be where create a and cir- the conditions jury to consider injury to probably performed will

947 Co., (Ind. by cumstances disclosed the evidence 1048, Madrid 734 N.E.2d 1052 actions, precautions, and determine the Ct.App.2000). such, "As evidence of the or course of conduct which should have independent contractor's mere negligence pursued in order toup been to measure is insufficient to impose liability against duty imposes. the which the law acceptance contractor after of the work (citations omitted). general Id. contractor or owner." Id. Moreover, Sullivan, in Yeager & Inc. v. There are several factors O'Neill, 466, 472, Ind.App. 163 324 N.E.2d context, evaluating "acceptance" in this in (1975) 846, Wood, (quoting 850 Meeks v. 66 cluding whether: Ind.App. 118 N.E. 592 '(1) the agent owner or its reasserted (1918)), this held: court physical premises control over the every 'The law is well understood that (2) instrumentality; the work actu- was man has the exclusive dominion and (8) ally completed; expressly owner right enjoyment to the free of his own an acceptance communicated or release property pleases, it as he that use (4) of liability; the owner's actions neighbor enjoys rights his the same permit a reasonable inference that the privileges with property; his conse- work accepted.' was duty it quently is the of each to so use Id. (quoting Blake v. Calumet Const. injure his own as not to that (Ind.1996)). Corp., 674 N.E.2d other. " considering factors, When these 'the fo neighbors, Because are we cus is on whether the owner was better does, indeed, that a relationship find exist than the prevent injury able contractor to between the Beckers and the Kreileins. parties to third at the time harm oc Thus, question becomes: did the Kreil- Blake, (quoting curred." Id. 674 N.E.2d duty eins breach their of due in the care 171). at injure use of their land so as not to Furthermore, an exception land of their neighbors, the Beckers? This question jury acceptance is a rule makes an independent answer. See Co., South Eastern Indiana Natural Gas contractor injuries liable for per third Inc., 617 N.E.2d at sons even after the work has been com Consequently, we genuine find there are issues of mate owner, pleted accepted by where " Miller, rial fact. See 727 N.E.2d at 491. 'in the work was left a condition that was Therefore, the trial grant court's defective, dangerously inherently danger Kreileins' second Motion for imminently ous or dangerous such that it Judgment improper. was See id. inju created a risk of personal imminent ry'" (quoting Id. Hill v. Rieth-Riley Krueger IV. Co., (Ind. Const. 670 N.E.2d 944-945 trial granted Krueger's court Sec- Ct.App.1996)). Liability imposed under this Summary Judgment, ond Motion for find- exception is limited where the contractor ing that Krueger owed no merely plans, has followed the specifica disagree. Beckers. We tions, provided by and directions the own er. Id. Specifically, where an independent stated, previously As un following contractor is not his plans, own disputed an independent was " owner, provided by but those 'liabili Generally, contractor. an independent *9 ty is imposed only plans where the are contractor does so not owe a of care to obviously parties third after an owner has defective that no con accepted reasonable Intern., tractor would follow them.'" Id. at 1052- the work. U-Haul Inc. v. Mike 948 Judgment improper. See was State, 704 N.E.2d Ross v. (quoting

1053 (Ind.Ct.App.1998)). id. 144 mind, in case law above theWith 3 CONCLUSION issues of genuine are there find that we sewage foregoing, in we conclude to the raw on the relating Based fact material negli possible the in both home and trial court erred Beckers' that the the First, Krueger. mo- gence Krueger's second the Kreileins' and unclear accepted Krueger's the Kreileins whether summary judgment. for tions alleged injury to the time work at We reverse. . stated, May in previously As the Beckers. contacted Kreileins SULLIVAN, J., in with concurs result - in their a wet area noticed first

when opinion. Krueger returned yard. FRIEDLANDER, J., part in coneurs It the situation. investigated home opinion. part in and dissents problem 1997 that until June was not resolved. yard was Kreileins with the SULLIVAN, concurring re- Judge, 1997, Cath during May or June Sometime sult. sewage raw Becker discovered erine Consequently, we her home. basement IV, I, II, B, III Parts I concur as to oc acceptance to determine are unable majority disagree with the respectfully I Thus, injury. alleged at the time of curred III A. as to Part whether to determine

we are unable conclude jury might well A reasonable posi in a better Krueger were Kreileins or contractor Krueger's independent that Beckers at injury to the prevent tion to the ex- Kreileins fell within for work See id. harm occurred. the time the performed the act to be "where ception if the Secondly, even existing will [disconnecting sewer] work, question Krueger's accepted had due injury unless to others probably Krueger's work as to whether still remains at 945. Op. precaution taken." " danger that was 'in a condition left was determine whether The failure to defective, inherently dangerous ously le. persons, line served other it created such that imminently dangerous the failure Trujillos, may well have been Id. injury."" personal imminent risk of instance, it In such precaution." use "due 944-945). Ac Hill, N.E.2d at (quoting 670 sewage that the readily foreseen could be genuine are that there cordingly, we find user, would Trujillos, the other from the Miller, 727 fact. See of material issues injury causing way find its elsewhere Therefore, the trial court's N.E.2d at 491. either persons, to other damage1 Motion Krueger's Second grant of and/or agree sewage in one's Judge Judge Riley Exposure to raw Sullivan Op. at 943. 3. Both impact by the sew physical a direct For Sum- home is Motion Kreileins' second that the premises. See age upon residents of that for the Judgment be reversed mary should Kobets, (Ind.Ct. 375 judges 698 N.E.2d III B. All Schuman section reasons stated in 1998) (tenant cause of action App., has for Sum- agree Motion second Judgment be reversed mary injury should personal caused against landlord IV. reasons stated in section droppings in window cas exposure pigeon adopted part apartment), ings and walls (Ind.1999); would take is N.E.2d 355 parenthetically, I upon 716 1. Somewhat transfer O'Neill, Sullivan, 163 Ind. Inc. v. Yeager and court's conclusion sue with the trial (1975). App. N.E.2d846 impact." physical "suffered no direct Beckers *10 Trujillos that, or a third person the themselves doubt in relation to the Kreileins and such as the Beckers.2 their sewer repairs, Krueger anwas inde pendent contractor and not an employee. For reason and for the this reasons Krueger equipment used his own and was in my parts concurrence the other not in directed his work the Kreileins in in Judge Riley's opinion, join I the reversal any way. They merely informed him of summary judgments of the entered in fa- the nature of problem paid and him to vor of both defendants. remedy the situation. Krueger was abso lutely independent of the Kreileins when it FRIEDLANDER, Judge, concurring in came to deciding what to do and how to do part dissenting part. in it. Krueger Because an independent was majority's I agree conclusion contractor, the Kreleins were not liable for summary judgment Krueg- favor of negligent his acts unless one of excep believe, however, I er should be reversed. tions to general rule aforementioned that the trial court correct in granting was applies. majority correctly The concludes summary judgment in favor of the Kreil- that none of the exceptions apply here. eins. I therefore respectfully dissent from Therefore, majority we-the and I-are majority's summary determination that inescapably led to the conclusion that the judgment favor of the Kreileins should legally responsible Kreileins are not be from reversed. Krueger's negligence. only apparent upon two bases to me conclusion, Notwithstanding this howev- impose liability upon which to the Kreil- er, majority holds that the Kreileins alleged damages eins Beckers' are summary are not entitled to judgment be- (1) they are vicariously liable for jury must decide they whether (2) Krueger's negligence, if any, "breach[ed] of due care in the negligent in hiring were a contractor who use of injure their land so as not to incompetent was to undertake the task for neighbors, land of their the Beckers[.]" which he was hired. I note that the Beck- view, Op. my at 946. In this conclusion negligent ers advance no claim of hiring. begs question. What is for a the basis liability That leaves vicarious as only Kreileins, claim of negligence against the negligence basis for a claim of against the apart liability from vicarious Kreileins. respect question, With to that I actions? I can find none. that the trial legal believe court's conclu- were sions correct. my Upon conclusionthat the Kreileins cannot be held liable under either of the A generally master is not liable for the only upon two finding theories which a of an independent contractor. (Ind. based, liability could I Hosp., Sword NKC 714 N.E.2d 142 be believe that the 1999). There summary judg- Kreileins are entitled to seems to me be little possible Krueger capped It sis, that had both Krueger's negligence appear would to be line, the failure to determine whether there were ends ie. at Kreileins' loca- sewer, tion and at the tie-in to the main merely other users rather than the failure to sewage Trujillo's property from would either cap both ends of the line which he assumed (in up Trujillo's back residence which case event, analysis any my be a "dead line." In Trujillo plaintiff) would be the or still would summary judgments leads to a reversal of the have drained property onto Kreileins' both as to and the Kreileins. property. then on to analy- Becker's In this *11 aspect affirm I would ment. order. court's

trial WILSON, Appellant-

Shavaughn

Defendant, Indiana, Appellee-Plaintiff.

STATE

No. 49A04-0012-CR-519. of Indiana. Appeals

Court

Aug.14,2001.