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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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