*1 one, and we do not find that the Law communication, disclosure a confidential Firm's to oppose peti- decision Patricia's then it would behoove the attorney pro- basis tion this such tect that unreasonable information until directed to do attorney fees are warranted. by otherwise a court. argued As by the Law Firm in a motion D. Confidentiality Protection Client order, protective for a "[alny detailed ac- Finally, opposed the Law Firm peti counting of performed services must nee- by tion because it feared that producing its essarily include information that is at the records, billing inadvertently would heart representation: the reasons breach its ethical of confidentiality to tactics, for employment, strategy, commu- Hall, Charles. See Gast v. nications, ete." Appellant's App. p. 20. (Ind.Ct.App.2006) (observing that The Law Firm believed that to divulge its attorney-client privilege survives even billing records on Charles's account would client) (cited after the death of the by the be tantamount to breaching attorney- brief). post-hearing Law Firm its client privilege. Huweck, Pursuant ruling against In was not an position the Law Firm on unreasonable to take. issue, Though this we quoted court a sentence need not and do not decide today whether, fact, rule, from Hueck v. State a general "As the information sought by information Patricia regarding attorney client's was privileged, we cer- protected by tainly fees is not do not attorney-client conclude that the Law Firm's privilege payment because the actions were of fees unreasonable in this regard. not considered a confidential communica Inasmuch as none of the four primary attorney tion between and client." 590 arguments raised the Law Firm in 585 (Ind.Ct.App.1992). What opposition to petition Patricia's were un- do, neglected however, trial court reasonable, the trial court erred order- subsequent was consider the paragraph, in ing the Law Firm pay Patricia's attor- that, which this court explained as one fees, ney and the of the trial might expect, there are exceptions to the court is reversed. general rule: courts have developed exception an BAILEY, J., ROBB, J., concur. general Identity rule. or fee ar-
rangements may privileged where re-
vealing party's the third identity or the arrangement
fee would be tantamount to
the disclosure of a confidential communi- cation.... Whether client's identi- [the] BEND, Appellant, CITY OF SOUTH ty arrangement or fee privileged de- pends on the facts of each case. (internal omitted). Thus, Id. citations DOLLAHAN, Charles Appellee. provide
Hueck does not bright line rule No. 46A03-0901-CV-17. attorneys which all gauge can whether they information hold on behalf of Appeals Court of of Indiana. confidential, their clients is attorney If an Dec. believes that the revelation of the informa- tion-including billing records or a fee
agreement-would be tantamount *3 $300,104.00 pay it to in dam- ordering
ages.
We affirm.
ISSUE finding the trial court's Whether City was liable for Dollahan's loss was clearly erroneous.
FACTS employed In Dollahan was as a by Larson-Danielson brick restorer Con- Larson, ("Larson-Danifelson"). struction repair Danielson was hired to and clean Fargo the brick bank facade Wells building, Jefferson Boulevard in located on city downtown South Bend. There is a immediately in front of the bank. phase, project During preparation manager Speckhard Daniel determined required to that a "boom lift" would be necessary height raise Dollahan to the for job, twenty-five to thir- approximately A lift ty ground. feet above the boom hydraulic cage consists of a arm and a platform is mounted on a four-wheel drive operator base from which an can be raised IN, Sanford, Bend, Jeffrey L. South At- height to a desired from the lifted torney Appellant. for ground perform maintenance or work. operated The boom lift can be from either Downs, Arland, L. Thomas K. Karen Ice platform cage the base or the controls. LLP, IN, Indianapolis, Attorneys Miller Anyone for Amicus Curiae. seeking temporarily occupy City's property special obtain a per- must Pfeifer, E. Douglas Sakaguchi, Daniel H. inmit order to do so. Pursuant to South Stesiak, Bend, Morgan Pfeifer & South Municipal Bend Code Article section 6- IN, Attorneys for Appellee. 11(a) City's engineer responsible issuing permits. Speckhard such contact- OPINION in- engineering department ed masonry project formed officials of the DARDEN, Judge. require thought would the use of a boom placed lift that could be on the street or STATEMENT OF THE CASE building. parties sidewalk near the The ("City") placed The that the appeals agreed of South Bend boom could be sidewalk, following depicted a on the as in the sketch judgment, trial, holding injuries bench it liable for A, (City's contained in the record. Exhibit 90). Subsequently, City's engineer- App. ("Dollahan") suffered Charles ing department granted Speckhard a tem- medical expenses $74,634.99, amounted to porary occupancy permit Lar- authorizing including the cost of disk removal and temporarily son-Danielson to occupy spinal surgeries. fusion He was unable to sidewalk with its boom lift. At no time did return to work wages and lost in the City's engineering Speck- $136,998.05 officials inform amount of August, from hard of structural problems with the January,
sidewalk. An ensuing investigation revealed that
Approximately days three before the the subgrade or base material underneath masonry project was to begin, Dollahan the sidewalk had been away by washed visit, visited the During worksite. he "recurring leak in irrigation system an in a that the observed sidewalk was not in park bank[,] area next to the and that the best condition and that much of the caulk washout underneath the sidewalk extended between the sidewalk joints was 5). cracked down the block." (Judgment p. missing. He was concerned about investigation and/or also revealed that some time placing sidewalk, boom lift on the giv- past in the steel reinforcement I-beams *5 en its condition and the weight of the boom had been inserted into the sidewallk-an lift. He was not in fear personal for his unusual reinforcement measure in side- safety, thought but the boom lift walk construction indicating prior prob- might crack the sidewalk and he could be lems with the 5; sidewalk. (Judgment p. personally responsible 32). held for the dam- May Depo. p. age. Given sidewalk, the condition of the 2002, In April of Dollahan filed a com-
Dollahan thought the boom lift would like- plaint damages theories, for in two where- Ty placed be on the public street. alleged (1) he that City was liable for 21, 2000, negligently
On August issuing Dollahan temporary the at occupan- arrived the eighty-foot worksite to find an boom cy permit; (2) its failure to warn and/or lift on the sidewalk. He reviewed the him, invitee, a business about latent de- permit and City learned that approved fects in the sidewalk theory under the of placement the of the boom lift on the premises 17, liability. 2002, On April City sidewalk. He then tested the load-bearing answer, filed its but failed to assert the eapacity of the sidewalk operating the affirmative defense of immu- boom lift platform from the base nity. 28, controls At January a 2003 deposition, and pressure increased the on the sidewalk Dollahan John May, City called a engineer, by "hydraulically telescoping cage plat- the testify. examination, Under direct he 4). form into the air" (Judgment p. testified that the I-beam reinforcement When the sidewalk withstood the stress method found in the atyp- sidewalk was an test, Dollahan proceed. decided to He ical approach to sidewalk construction. platform, stood on the entered the cage, He also testified that the reinforcement controls, using and the cage lifted himself indicated that there a "was void before" approximately twenty-five thirty feet under the sidewalk because the reinforce- later, the sidewalk into the air. Moments measures would necessary suddenly cracked and the boom lift sank subgrade the was (May insufficient. Depo. 32). into a four-foot fissure beneath the side- p. He further testified that although walk. aAs result of the sidewalk collapse, the reinforced sidewalk could "have held a injuries suffered to his neck traffic," and lot pedestrian more than the side- upper back and required extensive medical walk would invariably collapsed have were treatment multiple surgeries. and His type heavy of machinery placed upon tempo- authority to issue ercising that the void was its he testified Lastly,
it. placement the rary occupancy permit a surface obser- for apparent from readily not 88,000 property lift on pound therefore, the sidewalk, of could the vation of collapse. the City detected before Bend. [SJouth not have been owned Bend, in Defendant of South 32. February City filed a motion On care, raised, of due knew or should exercise summary judgment wherein for apparent con- given have known that time, the affirmative defense for the first sidewalk, prospect of dition of the City also des- immunity. 88,000 pound boom placement a memorandum ignated evidence and either further examination warranted summary judg- motion for support of its capacity handle 3, 2006, April ment. On Dollahan filed or, in the weight-load and stress opposition a memorandum in response and alternative, place- for use of the street City's designated Dollahan also motion. ment of the boom lift. testimony proof as May's deposition not material issue of fact that inability of the side- potential 33. summary a matter as safely weight-load entitled walk to handle the City's object 88,000 lift, of law. Dollahan did not potential its to col- boom govern- belated assertion of the defense of lapse, instability attendant immunity. Subsequently, mental potential oper- for harm to the boom lift hearing court conducted a on motion consequences ator were all foreseeable May summary judgment occupancy time the temporary at the *6 argue hearing not at the that Dollahan did permit by City was issued the of South belatedly prejudiced by City's he had been Bend. The trial court
raised defense. denied City 34. Defendant of South Bend City's summary judgment motion for on care to duty breached of due [sic] trial May parties 2006. The waived was in negligent Charles Dollahan and 31, 2008, jury, and on October the trial temporary occupancy of the its issuance City trial re- court conducted bench permit placement for of the boom on quested findings of fact and conclusions of the sidewalk.
law to Trial Rule 52. On Decem- pursuant presented 35. Given the cireumstances 8, 2008, trial final ber the court heard to him when he arrived at the worksite the arguments. argued, for first 21, 2000, August on Charles Dollahan time, City the defense of had waived ordinary exercised and reasonable care time, governmental immunity. At no how- by exercising prudence utilizing and the ever, he argue did assertion ability means to the available test immunity the defense of was sidewalk to handle the increased stress any way prejudicial in to his case. placed that would be on sidewalk caged platform hydrau- when the 22, 2008,
On December the trial court lically up angle raised and at an to the in favor of Dollahan. judgment issued lift. included, base of the boom pertinent part, in following conclusions of law: negligent 36. Dollahan was not Charles collapse of the sidewalk or at fault in [City] 30. failed in its Answer assert statutory affirmative defenses as injuries he sustained as a he [sic] result thereof. immunity.... City 37. Defendant of South Bend's City
31. Defendant of South Bend negligence proximate in was the cause of owed a to Charles Dollahan ex- injuries damages resulting fact, ing findings of we neither reweigh therefrom Charles Dollahan as the the evidence nor assess the credibility of witnesses, collapse August result of on but instead consider 21, 2000. evidence most favorable judgment. Id. 38. The total sum of damages those
sustained Charles Dollahan as a
proximate City result of the of South A. Wawer $1,927(, negligence Bend's 1633.04. City argues that it did not waive the Judgment should entered defense of immunity by its against City defendant of South Bend failure to assert it earlier and directs our for statutory the maximum sum of attention to Borne Borne Northwest $3000,000.00,1 plus court [sic] costs Allen County School Corporation, 532 $104.00[.] 1200 (Ind.Ct.App.1989), 7-8). (Judgment pp. City appeals, now trans. denied. The Bornes brought an arguing only that the trial court committed damages action for against the school cor- error in ruling reversible its had poration that operated their daughter's waived the defense of governmental immu- school. The corporation school had failed nity by its failure to timely assert to assert the affirmative defense of govern- same. answer, mental immunity in its but subse- quently raised it a motion summary DECISION judgment. The Bornes moved to strike I. Governmental Immunity defense the basis of pursu- waiver error, City challenges, 8(c), as clear ant to Indiana Trial Rule which pro- party vides that a ruling seeking to raise an affirmative specifically waived the affirmative defense must govern plead defense of immunity by responsive mental said defense in its timely pleading. its failure to The trial court agree assert defense We denied the motion part, *7 granted deny part, error, summary judgment in any, find that if favor of the corporation. school was harmless. reviewing
In City's claim of er On appeal, the argued Bornes that the ror, we initially note that where trial corporation the school had waived the defense findings court enters of fact and conclu of immunity. The school law, apply sions of we a two-tiered stan corporation that countered the Bornes had dard of review: we consider whether the been afforded a full opportunity and fair challenge its assertion of the defense of evidence supports the findings, findings whether the support the judg immunity and, at trial had Wedekind, demonstrated no prejudice from the school ment. Miller v. 880 N.E.2d 334, 334 (Ind.Ct.App.2008). The trial corporation's raising belated of the de findings court's will be set aside fense. agreed, citing Honeywell, We Inc. erroneous, they clearly Wilson, are ie. when the v. 500 N.E.2d (Ind.Ct.App. record contains no facts or sup inferences 1986), wherein we reversed the trial Further, porting them. Id. when review- ruling that the defendant had 24, 2008, $300,104.00. 1. On December the trial court en- sum the of pro correcting tered a nunc tunc order the argument any prejudice fail- vanced no as to defense his an affirmative waived of responsive might it earlier in his have suffered as a result ure to raise plaintiff that gov- concluded the of pleading. raising We the belated defense from the prejudice immunity. Specifically, not demonstrated ernmental counsel to raise defense failure defendant's remarked, held, earlier, and [opposing I'll where left pick up counsel] designed to avoid rules are 'The{ ] [trial] argument off which was the second and, ex- greatest traps pleading immunity for the issuance government are tried ensure cases possible, tent permit. failure to issue a We don't or their present. facts on the issues that, Honor, your response have a so Thus, proce- is not on technical focus that. I-I don't see I won't address issue, to raise the but on dure used portion we of their get how around legal issue's merits. summary judgment motion. Id. at 1252. (Tr. 9). showing preju- Absent such we identi by Honeywell, Guided dice, we conclude that did not waive inquiry critical Borne as "not fied the governmental immunity. defense could have raised whether defendant earlier," affirmative defense but Discretionary B. Function failure to "whether the defendant's raise Next, City argues that it entitled prejudiced the affirmative defense earlier governmental immunity because its de Borne, at plaintiff." 532 N.E.2d the temporary occupancy cision to issue 'affirmatively prej- show plaintiff A must permit allowing place Larson-Danielson to belatedly his case before [a udice to city boom on the sidewalk was can re- defense] raised affirmative discretionary function Indiana under the is that jected.' presumption "The issues (the "Act"). Tort Act Claims faith, they, in good can be raised as are developed. presumption This can be re- "applies The Act to claims or suits in against whom the party
butted 34-13-3-1; § Hayes tort." IC. Trus- by an new issue is raised affirmative University, tees Indiana context, prejudice. In showing this (Ind.Ct.App.2009). Under delay alone does not constitute sufficient Act, governmental subject are entities prejudice presumption. to overcome the liability agen- for torts committed their be a showing Instead there must employees of the immu- cies unless one *8 opposition the will party deprived be nity provisions of the Act applies. IC. of, seriously or otherwise hindered instance, § 34-13-3-3. For Indiana Code pursuit legal right injec- of some provides gov- section 34-13-3-3 "[a] permitted.' tion of the new issue is entity acting ernmental or an employee (internal omitted). Id. citations We find of the scope employee's employ- within the directly point. Borne to be on if a is not liable loss results from Here, the record reveals that Dollahan (11) issuance, denial, ... following: showing failed to make an affirmative as to of, or revocation or failure or suspension, prejudiced. During how he was the hear- issue, revoke, deny, suspend, refusal or license, certificate, summary approval, motion for ing judg- permit, order, authorization, ment, to a or similar where the his counsel limited remarks City's duty authority discretionary of to warn under discussion business law...." invitees of hazardous conditions and ad-
351
"Ultimately, the determination
to the general
rule of liability. Lake
of whether a governmental
action is im
County
Swanson,
Juvenile Court v.
discretionary
mune as a
429,
function must be N.E.2d
488 (Ind.Ct.App.1996).
purposes
based on the
policy underly
and
In Flynn v. Indiana Bureau Motor
ing governmental immunity." Peavler v. Vehicles,
988,
716 N.E.2d
991 (Ind.Ct.App.
Board
Com'rs Monroe County, 528
1999), a panel of this court considered the
(Ind.1988).
policy
un
applicability of Indiana Code section 34-
derlying governmental
immunity is the
13-3-3(11)
Flynn
where
alleged that
notion that certain executive branch deci
(the
Bureau
"BMV")
of Motor Vehicles
sions should not be subject
judicial
re
had negligently issued to her a certificate
view. Id. at 44. "Policy-making activities
of title for a vehicle that was later deter
lie at the
governance
heart of
and such mined to have been stolen. The BMV
essential acts should not
subject
to moved for summary judgment, claiming
judicial second-guessing or
harassment
immunity from liability
Act,
under the
potential
the actual or
threat
liability
granted
court
the motion. On
litigation." Id. "Tort immunity for basic
appeal, Flynn argued that the BMV was
planning and policy-making functions is not
from liability because its issu
immune
necessary to avoid the chilling effect on ance of certificates of title was not a dis
ability
government
of the
to deal ef
cretionary function. We disagreed, noting
fectively
policy
with difficult
issues which the permissive quality of the statutory lan
daily."
However,
confronts
Id.
in guage governing the BMV's issuance of
Morris,
(Ind.
Cantrell v.
In construing Indiana Here, Code 6-11(a) Article Section 34-13-3-3(11), section South Bend Municipal Code contains com- initially we note *9 that entity im seeking parable permissive language. It provides munity bears the burden proving of temporary "[all occupancy of public its conduct falls within one of the excep property as provided hereinafter for shall tions set out in the Act. Hertz v. School be considered and treated as being at the City Bast Chicago, 486 will the City, and will permitted only of of (Ind.Ct.App.2001). narrowly We by construe special permit by City Engi- issued immunity because it provides an exception 60) added). (App. neer." (emphasis
352 occupy seeking temporarily to party unam is clear and a statute
When Municipal by City's required was face, the words give we its biguous on in order permission City's Code to obtain meaning, usual ordinary, plain, their City dispute that does so. Nor to do clearly shown is contrary purpose unless a invitee. was a business Dollahan v. Sellers itself. by the statute Schafer Council, 215 N.E.2d 714 burg Town law, common Indiana's Under Third New Webster's (Ind.Ct.App.1999). three to establish required Dollahan was (1976) de Dictionary International theory negli- of on a to recover elements "subject to mean "at will" phrase fines (1) City of to part on the genee: As in pleasure." discretion to one's care a standard of to conform its conduct language statutory municipal Flynn, relationship with the Dol- its arising from tempo City's issuance governing above (2) lahan; conform its a failure clearly indicates permits rary occupancy of care requisite standard conduct and, therefore, war condition permissive (8) an relationship; and by the required regarding issu finding rants decisions caused proximately injury to permits are occupancy temporary ance of Co., Levy Mayfield City's breach. meaning of within the discretionary (Ind.Ct.App.2005). Thus, Indiana Code see pursuant Act. the Restatement adopted Indiana has 34-13-3-3(11), the trial court should tion (Second) Torts, provides: which gov City was entitled found that have subject to liabil- A of land possessor re if Dollahan's loss immunity ernmental harm caused to ity physical for the tem issuance of from its mere sulted if, on the land invitees a condition discretionary permit-a porary occupancy if, he but act. (a) the exercise of rea- knows or the trial court erred when find that We the condi- care would discover sonable waived the defense
it ruled that tion, an realize it involves and should immunity its fail- due to in- risk of harm to such unreasonable it as an affirmative timely plead ure to vitees, and pleading; howev- responsive in its defense (b) they will not expect should below, er, such error is not as discussed danger, or will or realize discover damages claim for of Dollahan's dispositive it, against themselves protect fail to immunity under in this case. 34-13-3-8(11) for section Indiana Code resulting from its dis- damages
Dollahan's (e) reasonable care fails to exercise issuing temporary cretionary act danger. against them protect City of not absolve occupancy permit does (Second) § of Torts Restatement prop- to maintain its liability for its failure 3438A(1) Further, of the Restate- section erty reasonably in a safe condition (Second) 'a provides, pos- Torts defects. invitees of latent warn business invitees land is not liable to his sessor of error to be harm- find the Accordingly, we by any caused to them physical harm less. land whose on the activity or condition them, obvious to danger is known or Liability IL Premises anticipate should possessor unless the knowledge or ob- despite the harm such undis initially note that We Supreme Court viousness.' The Indiana City's proper that the sidewalk puted *10 that, premises liabil- recognized '[iIn that a has requirement ty, as evidenced cases, duty whether a de- would ity owed create an unreasonable risk of harm upon (2) pends primarily Dollahan; whether the de- City, therefore, and premises fendant was in control of the duty breached its to exercise reasonable when the accident occurred. The ratio- care when it failed to maintain the side- subject Hability person nale is to walk a reasonable safe condition and to have any dangers who could known of on warn Dollahan of the latent defect in the the land and therefore could have acted sidewalk. We conclude that trial prevent any foreseeable harm. finding and judgment that upon liable based theory premises (Ind. King, Smith liability well-supported by evidence; (internal omitted). Ct.App.2009) citations accordingly, we find that the trial court's complaint, In his alleged that judgment clearly is not erroneous. land, City, possessor as a to main- failed property reasonably tain its in a con- safe Because Dollahan awas business invi- to warn any dition and latent defects in tee, City owed him a duty of reasonable upon the land which the boom would care safety to ensure his while he was on 9). placed. (App. The trial court ulti- City's property. foregoing evidence mately agreed, concluding City, reveals that City had actual knowledge of care, in the exercise of due knew or the latent subgrade problem beneath the given should have known that the appar- sidewalk, breached its of reasonable sidewalk, ent condition of the the pros- by failing care to warn Dollahan of said 88,000 pect placement pound of the defect, particularly given Larson-Daniel- boom lift warranted either further ex- son's place stated intention to heavy ma- amination of the capacity sidewalk, chinery on the and that Dolla- or, to handle the weight-load and stress injuries han's were proximately caused alternative, in the use of the street for City's breach of duty. We find Dolla- placement of the boom lift. han has proof satisfied his burden of 7). (Judgment p. we find no error from the trial court's lability. The evidence most favorable to the judg- supports the trial court's conclusion. Policy C. trial, May-a City At engineer-testified presence
that the of the steel I-beam rein- The Indiana Association of Cities and forcements previ- indicated there had (IACT") Towns and the Indiana Munici- sidewalk, ously been a void underneath the ("IMLA"), pal Lawyers Association as repairs because such would have been curiae, amici assert the trial court's necessary if the subgrade material beneath decision withholding City's of gov- defense lacking sidewalk was or deficient. affirmed, ernmental immunity, may if he "any Asked reason to believe that have consequences adverse financial "for there was sign noticeable of thle] throughout state, cities and towns ef- missing subgrade" the collapse, before fectively requiring a government local May responded, "No. I really don't see undertake engineering studies for every 30). (May how there could be." Depo. p. private project prior construction ... issuing any construction or building per- Thus, we find no clear error from the ..."; mit potentially "result[ing] in (1) trial court's conclusions that knew or should have known that increased placing heavy private costs on the sector sidewalk, equipment mechanical on the increasing obtaining the cost of the con- given the history instability, sidewalk's struction building permits necessary
354
City
"knew or should have known that
Amict's
to undertake
construction...."
mechanical
placing heavy
equipment
Br. at 4.
sidewalk, given
history
the sidewalk's
directed to
argument
is better
Amici's
instability, would create an unreason-
ap
as Amici
Legislature.
Inasmuch
Op.
harm to Dollahan."
at
able risk of
City
absolutely
arguing
to be
pear
respectfully
353. I
dissent.
liability,
immune from
we note
its
State,
55,
259
holding Campbell
in
v.
Ind.
in
May, City engineer,
John
testified
deposition that
(1972),
steel beams had been
supreme
our
court
may option, at his either correct the condi
tion, or warn the invitee of the latent
defect's existence. The owner discharges invitee he follows either
course."), disapproved grounds, on other
Bagley Co., L.P., v. Insight Commc'ns (Ind.1995). I would hold
the trial court's judgment is not supported
by the evidence and reverse. Indiana,
STATE of Appellant-
Respondent,
Craig COOPER, Appellee-Petitioner.
No. 49A02-0907-PC-599.
Court of Appeals of Indiana.
Dec.