The company that leased a temporary stage that collapsed in a windstorm killing seven and injuring dozens prevailed in overturning a trial court ruling in favor of the Indiana State Fair Commission. A dissenting appellate judge wrote that the majority placed form over substance in shifting liability to the state.
A majority of an Indiana Court of Appeals panel ruled in favor of Mid-America Sound, reversing summary judgment in favor of the state granted by now-retired Marion Superior Judge Theodore Sosin. Mid-America argues that terms of its lease contracts with the state require the state to indemnify the company against claims arising from the 2011 stage collapse during a Sugarland concert.
“The trial court granted the Commission’s motion but did not articulate the basis for its decision. As the Tort Claims Act does not apply and there are genuine issues of fact regarding the validity and enforceability of the indemnification agreement, we reverse and remand for trial,” Judge Melissa May wrote in a majority opinion joined by Judge Ezra Friedlander.
The COA found that there were questions a jury must decide on whether the indemnification clause on the back of an invoice was unconscionable or enforceable.
Chief Judge Nancy Vaidik dissented and would affirm summary judgment in favor of the Indiana State Fair Commission.
“Given that the purported indemnification clauses were located on the backside of unsigned invoices, I have serious doubts as to whether there was an enforceable contract between Mid-America and the Commission,” Vaidik wrote. “But I respectfully dissent from the majority’s opinion because, taking substance over form, I believe that this case is nothing more than Mid-America’s attempt to shift tort liability to the Commission — a tort in contract’s clothing, if you will. I would find that the Commission has immunity from Mid-America’s claims against them since this is the type of action contemplated by the Indiana Tort Claims Act (ITCA) and the Commission is a governmental entity.”
In a statement released after the ruling, Indiana Attorney Greg Zoeller said the state would appeal.
“While we respect the Court of Appeals panel, we strenuously disagree with this ruling and we plan to petition the Indiana Supreme Court to review the case and overturn the decision. Our position is Indiana law is clear that the State cannot indemnify a private party, nor was there any agreement here to do so, and we will continue to fight the stage rigging contractor’s attempt to shift its legal responsibility for the State Fair tragedy onto the public,” Zoeller said.
The case is In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al., 49A02-1404-CT-288.