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Appellate court splits on liability of city

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The Indiana Court of Appeals split today in deciding whether the city of South Bend should have known putting heavy machinery on an unstable sidewalk would create an unreasonable risk of harm to a brick restorer.

At issue in City of South Bend v. Charles Dollahan, No. 46A03-0901-CV-17, was whether the city was liable for Charles Dollahan's loss. Dollahan, a brick restorer, needed to repair bricks approximately 30 feet above the ground. His company got a permit to allow a boom lift to be placed on the city sidewalk in front of the building. Dollahan saw the sidewalks were in questionable condition, but figured the sidewalk was safe after he performed stress tests with the boom lift on the sidewalk. After he got in the lift and was in the air, the sidewalk collapsed, sinking the lift into a fissure beneath the sidewalk and injuring Dollahan.

An investigation revealed base material under the sidewalk had eroded and steel reinforcement I-beams had been inserted into the sidewalk, an indication of past problems with the sidewalk.

Dollahan sued the city, alleging it was negligent in issuing the permit and in its failure to warn him about latent defects in the sidewalk under the theory of premises liability. He called on a city engineer to testify, who said the reinforcement indicated there was a void before under the sidewalk and that it likely would have collapsed had any heavy machinery been placed on it. The trial court awarded Dollahan more than $300,000.

The majority agreed that the city failed to maintain its property in a safe condition and to warn of any latent defects in the sidewalk where the lift was to be placed. The city engineer's testimony supported the trial court's conclusion that the city knew or should have known putting the lift on the sidewalk, given the history of the sidewalk's instability, would create an unreasonable risk of harm to Dollahan, and that the city breached its duty to exercise reasonable care when it failed to maintain the sidewalk in a reasonably safe condition. The finding and judgment that the city was liable based upon the theory of premises liability is well supported, wrote Judge Carr Darden.

Judge Margret Robb dissented on this issue, writing the city knew there had been a void under the sidewalk and took steps to reinforce the sidewalk. There was no evidence showing the steel beams and backfill were an insufficient means of reinforcement.

"There is no evidence suggesting the City knew when it issued this permit the sidewalk was no longer adequately reinforced," she wrote. "In short, I believe the evidence shows the City corrected the defect in the sidewalk by placement of the steel beams and did not know and had no reason to know the defect had recurred."

The appellate court also found the trial court erred when it ruled the city had waived the defense of governmental immunity but that the error was harmless.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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