Feb 03 2015, 9:07 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Mary Stuart White R. Steven Johnson
Stanley L. White Sacopulos, Johnson & Sacopulos
White & White, LLC Terre Haute, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nick Hunckler, February 3, 2015
Appellant-Plaintiff, Court of Appeals Case No.
84A01-1405-CT-217
v. Appeal from the Vigo Superior
Court.
The Honorable Michael J. Lewis,
Air Sorce-1, Inc., Timothy Judge.
Miller and Kelly A. Brannen, Cause No. 84D06-1209-CT-8684
Appellees-Defendants
Baker, Judge.
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 1 of 11
[1] Nick Hunckler appeals the trial court’s grant of summary judgment in favor of
appellees Timothy Miller and Air Sorce-1, Inc., (Air Sorce-1) regarding his
personal injury claim. Finding that material issues of fact exist, thereby
precluding summary judgment, we reverse and remand for proceedings
consistent with this opinion.
Facts 1
[2] At the time the action arose, Miller was the president and only employee of Air
Sorce-1, an incorporated heating and air conditioning business located in Terre
Haute. At some point before October 20, 2010, Miller sold a new furnace to
Kelly Brannen.2 Prior to that sale, Miller visited Brannen’s home to inspect the
basement, where the new furnace would be installed.
[3] Miller delivered a new furnace to Brannen’s home on October 20, 2010. At
that time, Hunckler was living with Brannen. He was home when the furnace
was delivered. Miller arrived with a friend who had a bad back and intended to
move the furnace himself. Miller was planning to slide the furnace down the
basement stairs without help, a procedure he had done many times. Miller
1
We heard oral argument on December 16, 2014, in the courtroom of the Indiana Court of Appeals in
Indianapolis. We thank counsel for their informative and illustrative oral advocacy.
2
Brannen was a defendant to Hunckler’s personal injury action. She filed a separate motion for summary
judgment, which was granted. Hunckler does not appeal the grant of summary judgment in favor of
Brannen.
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 2 of 11
asked Hunckler if he would help him move the furnace down to the basement. 3
At the time of the delivery, Brannen was upstairs in the dining room using her
computer. She did not witness the two men attempt to move the furnace into
the basement.
[4] The two men prepared to slide the furnace down the stairs, entering through the
laundry room. Miller went down the stairs first, backwards, supporting the
bottom of the furnace. Hunckler waited at the top of the stairs in the laundry
room, planning to lift the furnace to help carry it down the stairs. He initially
grabbed the top sides of the furnace, but felt he needed a better grip on the
furnace before continuing down the stairs. The top of the furnace was open,
with four edges of sheet metal. When Hunckler moved his hand to better grip
the furnace at its top edges, he thought it was being pulled away from him as
though Miller had taken a step down the stairs. Hunckler then fell into the
furnace and his hands came into contact with the metal edges. It was
approximately ten seconds from the time that Hunckler placed his hands on the
furnace that he was injured. The two men did not even move the furnace one
step down the stairs.
[5] At this point, Brannen heard the commotion, and Hunckler and Miller came
into the dining room. Brannen observed that Hunckler was bleeding from his
3
At oral argument, both parties stipulated that Miller had asked Hunkler to help him move the furnace down
the stairs.
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 3 of 11
hands. Brannen drove Hunckler to the hospital; Miller accompanied them and
assisted Hunckler with his bleeding hands.
[6] As a result of this incident, Hunckler sustained serious injuries to the webbing
on his hands between his thumbs and palms. His left hand was more seriously
injured; it has required four surgeries as well as physical therapy to treat his left
palm. The movement and use of his left hand remains impaired.
[7] On September 10, 2012, Hunckler filed a personal injury action alleging
negligence against Miller and Air Sorce-1. On October 4, 2012, Miller and Air
Sorce-1 filed their answer and named Brannen as a liable non-party. On
October 15, 2012, Hunckler filed an amended complaint adding Brannen as a
defendant. Miller and Air Sorce-1 filed a motion for summary judgment on
February 7, 2014, and Hunckler filed his response opposing the motion on
March 5, 2012.
[8] The trial court held a hearing on the motion for summary judgment on May 1,
2014. The trial court entered an order summarily granting Miller and Air
Sorce-1’s motion for summary judgment. Hunckler now appeals.
Discussion and Decision
[9] When we review the grant or denial of a summary judgment motion, we apply
the same standard as the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5
(Ind. 2010). Summary judgment is appropriate only where the evidence shows
that no genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 4 of 11
reasonable inferences drawn from those facts are construed in favor of the non-
moving party, and all doubts concerning the existence of a material issue must
be resolved against the non-moving party. Id. Nevertheless, the trial court’s
grant of summary judgment “enters appellate review clothed with a
presumption of validity,” and the appellant bears the burden of demonstrating
that the trial court erred. Trustcorp Mortg. Co. v. Metro Mortg. Co. Inc., 867 N.E.2d
203, 211 (Ind. Ct. App. 2007).
[10] Hunckler argues that the trial court erred when it granted summary judgment in
favor of Miller and Air Sorce-1. He contends that the trial court erred in
determining that he was a “volunteer” and maintains that the trial court erred
in applying the volunteer duty of care as stated in Thompson v. Owen, 141 Ind.
App. 190, 218 N.E.2d 351 (Ind. Ct. App. 1966), to his negligence claim. 4 5
[11] Hunckler argues that the trial court misapplied Thompson, because the standard
articulated therein is only applicable in premises liability cases. Both parties
agree that this is not a premises liability case. In Thompson, Becky Owen asked
Thompson to help her start her father’s lawnmower as she was attempting to
4
The trial court’s order granting summary judgment does not state the legal authority upon which the trial
court relied. However, as both parties assert that the trial court relied on Thompson, we will proceed under
that assumption.
5
We also note that Thompson is not binding precedent, as Judge Smith dissented and Judge Hunter
concurred only in result. At the time Thompson was decided, this Court was the Indiana Appellate Court,
and it decided cases in panels of four. Therefore, as Thompson was a split decision, we question whether it
was ever binding precedent. However, we will address this case so as to render our holding regarding the
continued applicability of the volunteer doctrine.
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 5 of 11
mow the lawn of a home two doors down from her own. Id. at 196, 355.
Thompson did so, and was injured when the lawnmower jerked and ran over
his foot; he subsequently sued Becky’s father for damages. Id. Thompson was
aware that the lawnmower might have a faulty belt when he agreed to help. Id.
It was determined that there was no evidence that a faulty belt contributed to
Thompson’s injuries. Id. at 200, 357. The Thompson Court found that
Thompson was a volunteer and held that “the rule is well established by case
law in this state that, unless [there is] proof of wilful [sic] injury, a volunteer
cannot recover.” Id. at 201, 358.
[12] Hunckler argues that Thompson does not apply to him because the case at bar is
not a premises liability case. Miller concedes that this is not a premises liability
case, but argues that the volunteer doctrine is not limited to premises liability
cases. In May 2001, the Supreme Court of Michigan addressed the continued
relevance of the volunteer doctrine, and abandoned it entirely. James v. Alberts,
626 N.W.2d 158, 161-162 (Mich. 2001). It stated that it would “return this area
of law to traditional agency and tort principles, comfortable that they will better
resolve the matters to which the doctrine might have applied.” Id. at 162.
[13] We now adopt the same approach. We will continue to rely on traditional tort
and agency principles and, to the extent it was ever applied, abandon the
volunteer doctrine. Therefore, it follows that ordinary negligence principles
apply in the instant case. We find that there are genuine issues of material fact
as to duty, causation, breach, and damages.
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[14] Moving on to the second issue before us, we address Miller’s argument that he
is not personally liable for any damages that Hunckler might have incurred as a
result of his negligence. Miller argues that he is not personally liable because
Hunkler has failed to present any evidence to pierce the corporate veil. He
maintains that Indiana law imposing liability on a shareholder or officer of a
corporation is limited to cases of fraud or injustice.
[15] In support of his argument, Miller cites to several Indiana cases. He first points
us to Birt v. St. Mary Mercy Hospital of Gary, Inc., 175 Ind. App. 32, 370 N.E.2d
379 (Ind. Ct. App. 1977). In Birt, this Court affirmed a grant of summary
judgment in favor of non-treating physicians on Birt’s malpractice claim. Id. at
43, 385. The trial court in Birt found that the individual non-treating physicians
had not been involved in Birt’s treatment or present when the malpractice
occurred. Id. at 34, 380. This Court held that no vicarious liability arose solely
because the physicians were associated under the Indiana Medical Professional
Corporation Act. Id. at 43, 385. Likewise, in the second case Miller cites to,
Wauchop v. Domino’s Pizza Inc., 832 F.Supp. 1572, (N.D. Ind. 1993), the district
court held that, under Indiana law, the CEO could not be held personally liable
in connection with an automobile accident caused by an employee. Miller
points us to the district court’s holding that “it is well settled that a corporate
stockholder, director or officer is not personally liable for the torts of the
corporation or any of its agents merely because of his or her office or holdings;
some additional connection with the tort is required.” Id. at 1575.
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[16] It is clear that the above cases do not apply to the facts in the case at bar. Both
of those cases involve a situation in which one person commits a tort and the
plaintiff seeks to hold another person–an officer, shareholder, or associated
member of a corporation– personally liable for that tort. These are not the facts
before us. Hunckler does not attempt to hold Miller vicariously liable due to his
role as president of Air Sorce-1. Rather, he seeks to hold Miller personally
liable for the direct role he may have played when Hunckler was injured while
moving the furnace down the stairs. In essence, Hunckler is arguing that the
“additional connection with the tort” the district court found missing in
Wauchop is present in these circumstances. 832 F.Supp. at 1575.
[17] Our Supreme Court has provided guidance for us in such a situation as this. In
Greg Allen Construction Co. v. Estelle, 798 N.E.2d 171, 175 (Ind. 2003), our
Supreme Court determined that the president of a construction company, who
performed much of the renovation work on the Estelles’ home, was not
personally liable for the negligent work. This was because the Estelles had
entered into a contract with the construction company, and “without a contract,
the Estelles would have no other claim for any structure negligently or
otherwise constructed, and they do not assert any harm to their persons, no
harm to any other property and any invasion of any other protectible interest.”
Id. at 173-74. However, our Supreme Court also explained:
To be sure, Allen could be individually liable to the Estelles if he
negligently burned their house down while working with a blowtorch
whether this work was on the Estelles house under a contract with
them, or the project was a neighbor’s house and had no contractual
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 8 of 11
relationship to the Estelles. The reason is that this negligence goes
beyond failure to perform up to contractual standards, and constitutes
a tort even if there were no contractual relationship between the
Estelles and either Allen or his corporation.
Id. at 175.
[18] In the instant case, Hunckler had no contract with Miller. His claim is for
personal injuries he sustained as a result of Miller’s alleged negligence. We
agree with Hunckler that this situation is the very type of circumstance that our
Supreme Court contemplated in Greg Allen Construction Co. when describing the
possible scenarios in which a tort committed by a corporate officer or
shareholder might result in personal liability.6 Therefore, any grant of summary
judgment that determined Miller was not liable by virtue of his position as an
officer of a corporation would be erroneous.
[19] The judgment of the trial court is reversed and remanded for proceedings
consistent with this opinion.
Kirsch, J., concurs, and Robb, J., concurs in result with opinion.
6
Miller also argues that public policy concerns justify limiting the personal liability of
corporate officers to those cases in which acts of fraud or injustice are committed. We
disagree. Holding corporate officers who commit torts that result in personal injury liable for
such torts will encourage corporate officers to ensure the safety of others.
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 9 of 11
IN THE
COURT OF APPEALS OF INDIANA
Nick Hunckler,
Appellant- Plaintiff, Court of Appeals Cause No.
84A01-1405-CT-217
v.
Air Sorce – 1, Inc., Timothy
Miller and Kelly A. Brannen,
Appellees-Defendants
Robb, Judge, concurring in result.
[20] I respectfully concur in result, believing, as the majority does, that there are
genuine issues of material fact which preclude judgment for Miller as a matter
of law.
[21] I, however, find it unnecessary to discuss Thompson v. Owen at all, let alone
“abandon” the volunteer doctrine it espoused. First, as the majority notes,
Thompson may not even be binding precedent, as the majority in that case
agreed only on the result, not the analysis.
[22] Second, the situation decided by Thompson is not the situation we have here.
Although the parties agreed at oral argument that Miller asked Hunckler if he
would help move the furnace rather than Hunckler offering to assist, whether or
Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015 Page 10 of 11
not Hunckler was a “volunteer” is a factual issue that would need to be resolved
before we could even know if Thompson might apply. Is a person a “volunteer”
only if he offers assistance first, or can he also be a “volunteer” if he agrees to
assist when he is under no obligation to do so? Does it matter who has asked
for assistance; i.e. is a person more or less a “volunteer” if he assists a neighbor
versus a business enterprise? Moreover, Hunckler has not asserted a premises
liability claim as in Thompson; he has asserted a negligence claim to which
regular tort principles would apply.
[23] And finally, I do not believe it is up to us to determine that this state no longer
recognizes the volunteer doctrine, especially in a case in which the doctrine
might not even apply.
[24] With respect to the remainder of the opinion, however, I am in agreement with
my colleagues, and I therefore concur in the result.
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