DTCI: 2017 Amicus Activity — A look back at key cases

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By Lucy Dollens

This year, the Defense Trial Counsel of Indiana has participated as amicus in a variety of issues of significant interest to the defense bar. Although DTCI is unable to become involved in every case in which its participation is requested, the Amicus Committee and the Board of Directors carefully consider each request and welcome the chance to work with defense counsel across the state on important issues of Indiana law before Indiana’s appellate courts.

Indiana Supreme Court Cases

In 2017, DTCI participated in the following cases pending before the Indiana Supreme Court, some of which have been decided and some of which remain pending.

Sims v. Pappas
Brief written by Donald Kite, Sr., Wuertz Law Office, LLC

In this case, DTCI submitted an amicus brief in support of the defense counsel’s opposition to transfer. In this case involving a motor vehicle accident, DTCI argued the Court of Appeals correctly found the trial court erred in admitting defendant’s remote prior convictions for alcohol-related driving offenses (a 30-year old conviction for OWI and a 17-year old conviction for reckless driving), considering defendant’s admissions of fault and to being intoxicated at the time of the accident. On May 11, the Indiana Supreme Court issued an opinion reversing the Court of Appeals’ 2-1 majority opinion, which had been authored by retired Indiana Chief Justice Randall Shepard. Sims v. Pappas, 73 N.E.3d 700 (2017). Holding that the prior conviction evidence was prejudicial, but not unfairly so, the Supreme Court concluded that the remoteness of a prior offense is a matter of weight to be determined by the jury and not a matter of admissibility. Consequently, the court held that the staleness of a conviction does not render the evidence inadmissible as a matter of law, and the trial court did not abuse its discretion in admitting evidence of the remote prior convictions.

Gleaves v. Messer Construction Co.
Brief written by Jenny Buchheit & Nathaniel Uhl, Ice Miller LLP

In Gleaves v. Messer Construction Co., 77 N.E.3d 1244 (Ind. Ct. App. 2017), the Indiana Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Messer Construction Company (the construction manager for the IU Neuroscience building) in a personal injury action filed by Gleaves, an independent contractor who was injured on the construction site. Messer entered into a construction management contract directly with IU. Messer did not enter into a contract with Gleaves’ employer. Messer’s contract with IU imposed certain safety duties on it, but the contract provided that Messer owed those duties only to IU. Applying the Indiana Supreme Court’s decision in Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012), the trial court — and later the Court of Appeals — concluded Messer owed no duty to Gleaves. The courts concluded no duty was owed in this case where the construction manager (Messer) was acting within the scope of its contract with the owner and, consequently, did not have a contractual duty of care for the jobsite safety of subcontractor employers (Gleaves).

Gleaves, supported by the Indiana Trial Lawyers Association, sought transfer of the Court of Appeals’ opinion, arguing that the Indiana Supreme Court should either: (1) clarify that Hunt does not allow construction managers to create contracts that would avoid liability for safety incidents; or (2) reconsider Hunt altogether. DTCI filed an amicus brief in support of Messer’s opposition to transfer, arguing that strong public policy supported the Court’s decision in Hunt. In its amicus brief, DTCI also emphasized that Hunt was decided only five years ago and the doctrine of stare decisis should preclude such a review in the interest of continuity, predictability, and transparency in the law. On September 28, the Indiana Supreme Court issued a ruling favorable to DTCI’s position, denying Gleaves’ Petition to Transfer, and thereby leaving Hunt intact.

Sedam v. 2Jr Pizza Enterprises
Brief written by Crystal Rowe, Kightlinger & Gray, LLP

The significant defense issue raised in this case involves whether a plaintiff who was allegedly injured by an employee may raise both respondeat superior claims and direct employment-based claims (e.g., negligent hiring, training, supervising, and retaining) against the employer if the employer admits the employee was acting within the course and scope of employment at the time of the injury. In Sedam, the plaintiff’s decedent was rear-ended by an employee, a pizza delivery driver. The decedent was thrown into the roadway, where he was then hit by another car and later died from injuries sustained. During litigation, the employer admitted that the employee was acting within the course and scope of employment, but the plaintiff sought to recover not only for respondeat superior, but for direct liability as well (stemming from the negligent hiring, training, supervising, and retaining of the employee).

At the trial court level, the employer successfully moved for summary judgment on the direct employment-based claims because the company had admitted course and scope and, therefore, the employer’s liability (if any) is derivative of and fixed by the amount of the employee’s liability.

On appeal, however, the Indiana Court of Appeals reversed the trial court’s favorable summary judgment, holding that the dismissal of the direct employment-based claims contravened Indiana’s Comparative Fault Act because a jury could assign fault to: (1) the actors involved in the accident (i.e., the decedent, the employee for which the employer is vicariously liable, and the third driver); and (2) the employer independently for its negligent hiring, training, retaining, or supervising of the employee. In recognizing and adopting this minority view, the appellate court determined that it would be illogical under the Comparative Fault Act to disallow a cause of action that could result in the allocation of additional fault to a tortfeasor.

DTCI filed an amicus brief, supporting the employer’s petition to transfer to the Indiana Supreme Court. DTCI emphasized that absent employee liability, the employer’s reported negligence in hiring, training, supervising, and/or retaining the employee could not as a matter of law be a proximate cause of the plaintiff’s damages. Further, because the employer’s liability is derivative, its liability (if any) cannot exceed the employee’s fault.

DTCI also pointed out that the vicarious and employment-based claims asserted by the plaintiff in this case are merely alternative theories of employer liability, which fail to support independent claims for comparative negligence. The employment-based claims are separate and distinct from respondeat superior causes of action and accrue when an employee steps beyond the recognized scope of employment to commit a tortious injury upon a third party. DTCI also highlighted that the challenged opinion creates unnecessary conflicts-of-interest issues for defense counsel representing both the employer and employee in these employment-based derivative actions.

After conducting oral argument, the Indiana Supreme Court issued an opinion favorable to DTCI’s amicus position on October 31. The court held that if an employer admits course and scope of employment, the plaintiff may not sue the employer for both derivative liability under respondeat superior and direct liability under negligent training, hiring, or supervision. Sedam v. 2JR Pizza Enterprises, LLC, 2017 WL 490057 (Ind. Sup. Ct. Oct. 31, 2017).

Roumbos v. Vazanellis
Brief written by Jaime M. Oss, Huelat, Mack & Kreppein P.C.

On July 19, DTCI filed an amicus brief in support of the petition to transfer filed by the appellee/defendants. In its amicus brief, DTCI urged the Indiana Supreme Court to vacate the Indiana Court of Appeals’ opinion, which significantly changed Indiana premises liability law when there is a known or obvious condition. The Court of Appeals held that a landowner must demonstrate not only that the harm to the invitee was caused by a known or obvious activity or condition on the land, but that the possessor should not anticipate the harm despite the obviousness or knowledge. In other words, the Court of Appeals held that to meet its summary judgment burden, the landowner should prove that the “unless” exception contained in the Restatement (Second) of Torts section 343A does not apply. The Court of Appeals further held that the landowner must designate evidence establishing it could not have reasonably anticipated that an invitee might forget about the condition or become distracted and be injured by it.

In its amicus brief, DTCI argued the Restatement (Second) of Torts section 343A limits the duty to an invitee as set forth in section 343. Once the landowner demonstrates that the condition was known or obvious, the burden shifts to the invitee to demonstrate that the “unless” exception applies, which will occur only in extraordinary circumstances. DTCI argued that consistent with existing Indiana Supreme Court precedent, a landowner has no obligation in order meet its summary judgment burden to designate evidence that it could not have anticipated that an invitee might forget about a condition and be injured by it. The Indiana Supreme Court granted transfer, which thereby vacated the Indiana Court of Appeals ruling. The Indiana Supreme Court heard oral argument on Nov. 9.

Care Group Heart Hospital v. Sawyer, Et Al.
Brief written by Philip E. Kalamaros, Hunt Suedhoff Kalamaros LLP

This multi-party case involves procedural issues in which some parties did not actively participate in the appeal and the impact of the appellate court’s remand on those parties.

In this case involving one plaintiff and three defendants, the jury issued its verdict. Only one party, a defendant, initiated a primary appeal. In response, the plaintiff cross-appealed. The cross-appeal was directed only at the appealing defendant, but addressed an order that contained rulings applicable to the other defendants. No other defendant appeared or responded to the cross-appeal.

The Indiana Court of Appeals reversed the trial court on the issue and remanded the matter to the trial court. The court’s opinion appears to impact the other defendants in the trial court on remand, potentially exposing them to increased liability when the trial court addresses the issue on remand. DTCI’s amicus brief, filed in support of the defendants seeking transfer, asserts that Indiana Appellate Rule 17(A) should not permit a co-defendant to incur additional liability when, on appeal, the opposing party did not seek such relief against that co-defendant (who was also not active in the appeal). The Indiana Supreme Court granted transfer, and the matter is set for oral argument on Dec. 7.

Indiana Court of Appeals Cases

In 2017, DTCI participated in the following case pending before the Indiana Court of Appeals.

Hamilton v. Steak N’ Shake Operations, Inc.
Brief written by Lucy Dollens & Jacob Bradley, Quarles & Brady LLP

This case addresses the significant issue of whether Indiana law imposes a duty on a premises owner to prevent an unforeseeable criminal act (here, a shooting) when the act follows an escalating argument. The trial court entered summary judgment in favor of Steak N’ Shake, finding it owed Hamilton no duty to protect her from a third-party criminal act because the act — a shooting — was not foreseeable as a matter of law. In its amicus brief, DTCI argued that the trial court properly applied Indiana Supreme Court controlling precedent, Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016), which rejected the totality of the circumstances test formerly used to determine foreseeability in the duty context. The Indiana Supreme Court in Goodwin instructed that the actual facts of the case are not considered in this foreseeability analysis and held that a shooting in a bar is not foreseeable as a matter of law.

DTCI filed an amicus brief in which it urged the Indiana Court of Appeals to follow this controlling precedent, which provides clarity to premises owners regarding their duty to protect invitees from third-party criminal acts. This appeal has been fully briefed before the Indiana Court of Appeals and remains pending.

Thanks to Amicus Committee Members, Brief Authors and the Board

DTCI and the Amicus Committee appreciates and thanks attorneys (and their firms) who devote their time and talents to voting on participation, authoring amicus briefs, and working with attorneys for the parties DTCI supports on appeal. Additionally, I want to particularly thank the members of the DTCI Amicus Committee who have given so much of their time and expertise to ensure that the voice of the Indiana defense bar is heard in Indiana’s appellate courts: Jenny R. Buchheit (Ice Miller), Alexandra Deeley (Berry Plastics Corporation), Phil Kalamaros (Hunt Suedhoff Kalamaros), Jaime Oss (Huelat Mack & Kreppein); Peter H. Pogue (Schultz & Pogue); Crystal Rowe (Kightlinger & Gray); and Nabeela Virjee (Office of Corporation Counsel at City of Indianapolis). While Alexandra Deeley is stepping down from the Amicus Committee this year, we sincerely appreciate Alexandra’s contributions and wish her well.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to send the request as early on in the appellate process as possible to the undersigned ([email protected], or 317-399-2815). The DTCI Amicus Committee and the Board of Directors welcome and endeavor to carefully consider each request.•

• Lucy Dollens is a partner at Quarles & Brady LLP and chair of the DTCI Amicus Committee. Opinions expressed are those of the author.

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