*1 GILLIAM, Appellant- D. Leonard Plaintiff, INC., UNITED,
CONTRACTORS Appellee-Defendant. No. 41A01-9407-CV-235. Indiana, Appeals of Court First District. April *2 Riley, Young Young,
Thomas N. J. William Riley, Indianapolis, appellant. for & Norris, Mary L. Hunter Wed- Richard Jo Nettles, Norris, ding, Choplin A. Nelson Schroeder, Indianapolis, appellee. for
OPINION
NAJAM, Judge. THE OF CASE
STATEMENT Leopard appeals D. from Gilliam granting court's order ("CUI"). United, Inc., favor of Contractors brought action Gilliam when his mo- he sustained toreycle a car collided with area under an trial court found that CUI construction. The matter of law to Gilliam as a for CUL and entered remand. We reverse and
ISSUES re- presents several issues for our
Gilliam we restate as follows: view which to Gilliam. CUI owed Whether its dis- the trial court abused 2. Whether to amend its when it allowed CUI cretion defense and to assert answer nonparties the State of Indiana name as Transportation. Department of the Indiana
FACTS seriously August
On motorcycle with a injured collided when his high parked on the shoulder area controlled way in a construction accident, At the time of CUI. ("I-65") 1114, 1116, traveling south on Interstate 65 trans. denied. When re County. in Bartholomew I-65 is a four-lane viewing summary judgment, motion we highway with two southbound lanes and two apply court, the same standard as the trial separated by grass lanes northbound medi fact, any any and we resolve doubt toas Along edges an. of the two southbound therefrom, inference to be drawn in favor of *3 lanes, traveling there is a four-foot-wide party opposing summary the judgment. paved paved left shoulder and a ten-foot-wide City (1990), Ind., Evansville v. Moore 563 of right morning shoulder. the On acci N.E.2d 114. party seeking sum dent, resurfacing paved the CUI left mary judgment bears the burden of estab pursuant shoulder of the lanes southbound to lishing propriety Gaboury of the motion. Department a contract with the Indiana Brethren, (1983), v. Ireland Road Grace Inc. ("INDOT").1 Transportation To facilitate its Ind., 446 N.E.2d 1313. work, CUI installed a southbound left lane placed signs, closure. CUI an arrow-board Summary judgment generally is in and cones to close the lane and to direct appropriate in actions. State time, right. traffic to the At that an aban (1993), Duffy's, Loyd Ind.App., Street Inc. v. paved doned vehicle was located on right 1099, 1101, 623 N.E.2d trans. denied. Even shoulder within the area under construction. if the trial court does not believe that approached As Gilliam the construction trial, non-moving party will be successful at area, warning signs he saw flashing and ar- should not be entered indicating rows that the left lane was closed where material facts conflict or con where right. and that motorists should move to the flicting possible. inferences are Id. already right Gilliam was in the hand lane as approached, signs he and when he saw the he Duty Issue One: right moved onto the shoulder. As Gilliam hill, came over a he Gilliam contends the trial court erred when thought moving. on the shoulder but it was it found as a matter of law that owed no CUI When he stopped, realized the vehicle was duty granted to summary judg- Gilliam and attempted to swerve but collided with the agree. ment in favor of CUI. We vehicle. 27, 1990, August On Gilliam filed his com- question duty, On the we must plaint damages against the vehicle's own- recognizes any determine whether the law er, CUI, the State of Indiana and INDOT. obligation of a defendant to con subsequently settled with the State form its conduct to a certain standard for the stipulation and with INDOT and filed a dis- plaintiff. benefit of the See Pitcock v. World missing prejudice. his claim each with (1991), Recycling Ind.App., wide Inc. 582 granted The trial court then leave for CUI to Although N.E.2d 414. existence amend its answer to add the State and IN- duty court, is a of law for the Thereafter, nonparties. DOT as both Gilliam process necessarily drawing includes conclu summary judg- and filed motions questions Stump sions as to of fact. ment, 22, 1992, and on March the court en- (1992), Equipment Indiana Ind.App., Co. 601 tered in favor of CUI. 398, 402, N.E.2d trans denied. Our su preme determining court bas held that in DISCUSSION AND DECISION duty whether a defendant owed Standard Review plaintiff, we must consider and balance the (1) following three relationship factors: Summary judgment appropriate (2) only genuine parties, when no issues of material fact between the the reasonable fore moving party seeability exist and the person injured, is entitled to of harm to the (3) judgment public policy as matter of law. Ind.Trial Rule concerns. Webb v. Jarvis (1991), Ind., 56(C); (1993), 995. Ind.App., Lucas v. Stavos formerly Department Highways. INDOT was known as the Indiana foreseen have been lenged conduct Relationship A. We exam- engaged in it. actor who had a that CUI contends should conduct and human forces ine what so that area its construction maintain to scene, likely come on appeared public. for the safe flow likely to dangers weigh the and we Transit, Inc. v. La Porte In Koroniotis light of challenged conduct (1979), Ind.App., Harper, James conduct. these forces performing a contractor acknowledged that §3 18.2 Torts Vol. Law of Gray, The has a highway public aon work 1986). (2d ed. precautions proper to take traveling public Here, Webb, at 997. dangerous obstruction it from protect through the con- passage the lane Id. at work. resulting from its there sufficient area was proposition struction *4 that same reaffirmed 659. We to drive traffic directed (1994), signs which Ind. were no v. Cornelius recently in State were if we even shoulder. In on the denied. trans. App., inquiry proper the argument, accept CUI's to Cornelius, motorcyclist sustained a foresee- was to Gilliam the harm whether car and is a motorcycle struck was his when pole was able. pole. The utility into a slid portion in a island traffic grass aon located aban the that shows The evidence The under construction. an intersection of right shoul on the parked was vehicle doned by a surrounded originally was island traffic By its 1-65. lane of the southbound der of con the curb, construction to facilitate but lane to left diverting traffic act the eurb around the removed had tractor use all traffic that intended right, the CUI flasher bar placed a island, asphalt laid did CUI lane. While right hand the at 197. utility pole. Id. of the in front rier shoulder, it the onto traffic actually divert relationship element considering the In pattern. traffic change the did the that held Cornelius duty, court area. construction the controlled CUI member motorcyclist was a the fact that by the created cireumstances the Due to to was sufficient using the public motorists that foreseeable it was construction relationship between requisite establish high- of the portion the traveled leave would Like 200. Id. at the contractor. him and right shoulder attempt to use way and because Gilliam wise, that here we conclude travel as a stops or emergency either I-65, he using public of the member awas aban- of an presence Considering the lane. which relationship with CUI a had shoulder, paved vehicle doned negligence. duty in support only to the the shoulder proximity of close lane, foreseeable also it was open southbound Foreseeability B. the vehicle. with collide a motorist that not, of care "is duty of reasonable reasonably foresee- Therefore, was rather large, but at course, to the world reasonably injured by a who able victim foreseen be might those who to id. harm. See foreseeable of the by breach injury subject to being Policy -Public C. Beverage, Inc. Faygo Thiele duty." trans. public (1986),Ind.App., whether consider Finally, must we imposing a has stated: in favor supreme weigh policy Our concerns denied. as- the cireumstances. duty under those to duty limited is of a Imposition safety, public concern out of serts reasonably foreseeable where instances vehicle duty remove to had a CUI reasonably foresee- by injured victim presence on of its warn motorists to into Thus, inquiry harm. able no it owed maintains shoulder. concerned duty is of a the existence because vehicle to remove duty to Ctilliam inquiry as is the factors exactly the same vehicle. remove authority to had no it Keeton Prosser cause. proximate into duty to warn no it had 1984). further (5th Both seek Torts, § ed. on visible, clearly that was of a chal- Gilliam consequences find what duty that it had to warn Gilliam "not Gilliam contends court abused its already to be where he knew he was not discretion when it allowed CUI to amend its supposed Appellee to be." Brief of at 31. answer to assert a defense with respect to the State and INDOT.
However, whether CUI had the au
thority
goes
to remove the vehicle
The trial court is vested with broad
question
general
duty
pro
whether the
discretion in determining
permit
whether to
breached,
tect Gilliam
not the
pleadings.
amendments
Barber v. Cox
duty
of whether
existed in the
in
first
(1994),
Ind.App., 629 N.E.2d
1258.
Cornelius,
stance. See
at
pleadings
Leave to amend
liberally
should be
Because CUI was a contractor performing granted unless the amendment would result
highway,
construction work on the
CUI owed
in prejudice to
opposing party.
In
Id.
of reasonable
care to the
Barber, we held that the trial court did not
public traveling through the construction
abuse its discretion
when
allowed two re
Cornelius,
area.2 As in
we can discern no maining defendants to file an
an
amended
public policy
preclude
concerns that would
plead
swer and
a nonparty defense with re
imposition
under the cireumstances gard to a former defendant who had settled
of this case. See id. at 201.
plaintiff.
with the
Id.
agree
cannot
We
with the dissent's conten-
Still, Gilliam maintains
pre-
that CUI is
*5
that,
law,
as a
tions
matter of
Gilliam was not
naming
settling
cluded from
a
defendant as a
reasonably
a
foreseeable victim
was in-
who
provision
based on a
of Indiana's
jured by
foreseeable harm and Comparative
Act,
§
Fault
Indiana Code 84-
that Gilliam
fifty percent
was more than
4-33-2(a) which
pertinent
part:
states
in
(50%)
injuries.
at fault for his
Whether
it
'Nonparty'
is,
person
may
means a
who
or
was foreseeable that Gilliam would continue
be liable
to the claimant in
inor whole
to drive on the shoulder after he saw the
for
damages
claimed but who has not
vehicle concerns
proximate
the issue of
joined
been
in the action as a
Further,
defendant
cause.
the extent to which Gilliam's
by the claimant.
may
own actions
have caused his
comparative
added).
involves
fault.
ques-
These are
(Emphasis
that
appropriate
tions of fact not
disposition
for
language of the statute is clear and that
by summary judgment.
because the State and INDOT were in fact
previously joined in
underlying
action as
Having balanced the three relevant
defendants,
they cannot now be named as
Webb,
considerations under
we conclude that
nonparties.
agree.
We cannot
CUI owed Gilliam a
as a matter of law.
Thus,
Comparative
we hold that the trial
Indiana's
court erred when
Fault Act
"provides
granted summary
it
a scheme
judgment
allocating liability
in
for
favor of
duty.
CUI on the
among persons
whose
contributed
injury." Templin
(1993), Ind.,
to an
v. Fobes
Nonparty
Issue Two:
Defense
541,
agree
544. We
with CUI
policy
that the
Comparative
behind our
Fault
The State and INDOT were named as
Act would be
if
plaintiff
thwarted
who
in
complaint.
defendants
Cilliam's
joint
settles with one or more
tort-feasors
subsequently settled with those two defen-
could then use that
any
settlement
to bar
dants,
stipulation
and a
of dismissal with
remaining
asserting
tort-feasors from
a non-
prejudice
objection.
was entered over CUI's
party defense.
CUI then moved to amend its answer and
name the
nonparties,
State and
as
INDOT
a rule
inevitably
manip-
Such
lead to
granted
and the trial
CUI's motion.
plaintiffs,
ulation
who would first settle
2. The trial court held and CUI contends that
abandoned vehicles. The statute does not obvi-
§
seq., precludes
Indiana Code
9-9-1.1-1 et
general duty
ate the
of reasonable care that CUI
imposition
on CUI.
owes to the
See Cornelius, 637
public.
general
merely provides
procedure
statute
200; Koroniotis,
N.E.2d at
with Faygo Bever- Thiele v. CUL. See in favor of for a responsible completely primarily (1986), Ind.App., 489 age Imc. remaining tort, proceed then denied. n. trams. jury's focusing the ultimately pocket, deep if the as deep pocket on that attention law, Furthermore, Gilliam's matter as a not exist. did other tort-feasors more than he was demonstrate actions Corp. Southern injuries. (50%) for his at fault v. fifty percent Rockrohr Norfolk (inter- (N.D.Ind.1992), F.Supp. system fault comparative Thus, under our Act). Fault Comparative recovery. Forbes any See Indiana preting the is not entitled such (1991), Ind.App., have intended legislature could Walgreen Co. Our trial court Thus, 91-92. we conclude result. granted it when its discretion not abuse did one as this considering cases such After to name its answer to amend leave plaintiff which nonparties. as and INDOT State path, continued obstructing his the shoulder anyway, collided to drive CONCLUSION result- vehicle, his blames and then with law, that CUI hold, a matter as We defendant, wonder it is no ing injury on hold further We duty to Gilliam. pres- our dissatisfied grown have people discre- its not abuse court did trial that the upon the called system and tort ent its an- amend allowed CUI tion when propos- recent With for reform. legislature INDOT include the State swer reform, Bill 1741 House such as tort als for granting order court's The trial nonparties. House the Indiana recently passed which re- in favor of being considered and is now Representatives pro- versed, is remanded this case tort Senate, changes in our Indiana by the opinion. with this ceedings not inconsistent the road. just down may be system *6 remanded. Reversed J., KIRSCH, concurs. J., opinion.
BAKER, dissents dissenting. BAKER, Judge, #2, respect- I to issue as I concur While disposition majority's fully dissent R. and Judith L. BELFORD Arthur aof the existence regarding # 1 issue Belford, Appellants-Plaintiffs, majority's discus- CUI. part to a giving rise three factors sion disagree with I accurate. WELCH, Profes McHALE COOK foreseeability application of majority's P. Daniel Corporation, sional case. facts of factor Appellees-Defendants. Byron, that CUI not believe simply do I 49A02-9312-CV-667. No. directing reasonably foreseen lane, Gilliam right in the proceed Indiana, traffic Appeals of Court an the road shoulder use would District. Second Moreover, traveling. lane additional 13, 1995. April that Gilliam unforeseeable also proceed down Denied June continue Rehearing ob- parked vehicle road after majori- Contrary to path. structing his conclusion,
ty's injured by a rea- who was victim foreseeable Hence, because harm. sonably foreseeable Gilliam, affirm I would duty