ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
Mark K. Phillips John B. Drummy
Phillips & Phillips, PC Brent R. Weil
Boonville, Indiana Kightlinger & Gray, LLP
Indianapolis, Indiana
R.D. Zink
Henderson, Daily, Withrow & DeVoe
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JACK BECKER and CATHERINE BECKER, )
)
Appellants (Plaintiffs), ) Cause No. 19S01-0202-CV-133
) in the Supreme Court
v. )
)
KEITH KREILEIN, CINDY KREILEIN and ) Cause No. 19A01-0102-CV-49
STEVEN KRUEGER, ) in the Court of Appeals
)
Appellees (Defendants). )
APPEAL FROM THE DUBOIS CIRCUIT COURT
The Honorable William E. Weikert, Judge
Cause No. 19C01-9712-CP-0275
June 25, 2002
SHEPARD, Chief Justice.
Plumber Steven Krueger installed a new sewer line for homeowners
Keith and Cindy Kreilein. He disconnected their old line from the main
sewer line but left it uncapped, not realizing that it also served as the
conduit for the next-door neighbors’ sewage. The neighbors’ sewage seeped
up in the Kreilein’s back yard and from there flowed downhill into Jack and
Catherine Beckers’ basement. We hold that the Beckers have a cause of
action against Krueger, but not against the Kreileins.
Facts and Procedural History
The Kreileins lived in Jasper, next door to the Trujillos. The
Beckers lived three lots downhill, across a publicly-owned alley, facing
the opposite direction.
In October, 1996, the Kreileins first hired Krueger, a licensed
plumber, to clear their blocked sewer line. After repeated attempts to
clear the line failed, the Kreileins authorized its replacement in April
1997.
The old line ran beneath a garage and driveway. The Kreileins took
Krueger’s advice to install a new line in a slightly different location to
avoid the expense of digging through the concrete and then repairing it.
Krueger disconnected the old line from the Kreileins’ home and the main
sewer, but did not cap its two ends because the plumbing code did not
require capping “dead lines” and Krueger did not think the line led
anywhere else.
On May 11, 1997, Keith Kreilein noticed a wet area in his backyard.
The next day Krueger came out to inspect the area and called the City of
Jasper Utilities. City utility staff tested the Kreileins’ sewer line that
same day but found no leak originating from their house.
The area remained wet, however, so on May 16th the Kreileins again
called the city utility office. Three days later city utility staff dye-
tested the Trujillos’ sewer line and learned that sewage from their house
was draining into the Kreileins’ backyard. On June 2, 1997, the City
corrected the problem.
Unfortunately, heavy rain fell in the meantime, carrying sewage that
had percolated to the surface of the Kreileins’ yard downhill to the
Beckers’ property. The Beckers sued the Kreilins and Krueger, alleging
that their house had been condemned as uninhabitable and that they had
suffered life-threatening, permanent injury and other loss from exposure to
raw sewage.
The trial court granted summary judgment in favor of all the
defendants. The Court of Appeals reversed in a split decision. Becker v.
Kreilein, 754 N.E.2d 939 (Ind. Ct. App. 2001).
The Kreileins sought transfer to this Court, which we granted.
Standard of Review
Summary judgment requires evidence that leaves no genuine issues of
material fact. Ind. Trial Rule 56(C). All facts and reasonable inferences
drawn from those facts are construed in favor of the non-movant. Wright v.
Carter, 622 N.E.2d 170 (Ind. 1993).
On appeal from summary judgment, the reviewing court faces the same
issues that were before the trial court and analyzes them the same way,
although the trial court’s decision is “clothed with a presumption of
validity.” Ind. Dep’t of State Revenue v. Caylor-Nickel Clinic, P.C., 587
N.E.2d 1311, 1312-13 (Ind. 1992). While the non-movant bears the burden of
demonstrating that the grant of summary judgment was erroneous, we
carefully assess the trial court’s decision to ensure that the non-movant
was not wrongly denied his or her day in court. Mullin v. Mun. City of
South Bend, 639 N.E.2d 278 (Ind. 1994).
I. The Plumber Was an Independent Contractor
Indiana’s long-standing general rule is that principals are not
vicariously liable for the negligence of their independent contractors.
Bagley v. Insight Communications Co., 658 N.E.2d 584, 586 (Ind. 1995)
(citing Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 597, 106 N.E. 365, 367
(1914); City of Logansport v. Dick, 70 Ind. 65, 78 (1880)). Although
whether someone is an employee or independent contractor is generally a
question for the trier of fact, a court may make this determination if the
significant underlying facts are undisputed. Moberly v. Day, 757 N.E.2d
1007 (Ind. 2001). We therefore begin by determining whether the trial
court properly held, as a matter of law, that Krueger was an independent
contractor.[1]
The Beckers maintain that there is a genuine issue of material fact
regarding whether Krueger was a servant or an independent contractor
because “Krueger recommended the easiest, most cost efficient manner in
which the work might be done, but the Kreileins made the ultimate
decision.” (Appellants’ Br. at 17.) The common and sensible repairman’s
practice of obtaining customer authorization after diagnosing a problem but
before implementing the most cost-effective solution was not, as a matter
of law, enough to make Krueger the Kreileins’ employee.
II. Vicarious Liability for Independent Contractor Negligence
Indiana recognizes five exceptions to the general rule of non-
liability of a principal for an independent contractor’s negligence:
(1) where the contract requires the performance of intrinsically
dangerous work; (2) where the principal is by law or contract charged
with performing the specific duty; (3) where the act will create a
nuisance; (4) where the act to be performed will probably cause injury
to others unless due precaution is taken; and (5) where the act to be
performed is illegal.
Bagley, 658 N.E.2d at 586 (citation omitted). As Judge Friedlander
correctly observed, these are the only bases for establishing a duty of
care by a principal who acts through an independent contractor. See
Becker, 754 N.E.2d at 949 (Friedlander, J., concurring in part and
dissenting in part).
Exceptions one, two and five are clearly inapplicable. The key
requirement of the third exception is that the act at issue was of a type
that will create a nuisance. Standard sewer repairs do not necessarily (in
fact, do not even usually) create a nuisance, so this exception also does
not apply.
As to the fourth exception, the proper inquiry is whether, as a
matter of law, the principal should have foreseen a danger that was
“substantially similar to the accident that produced the complained-of
injury.” Carie v. PSI Energy, Inc., 715 N.E.2d 853, 857 (Ind. 1999)
(citation omitted). The question here, then, is whether the Kreileins
should have foreseen that, absent due precaution by Krueger in installing
their new sewer line, the Trujillos’ sewage would seep up into their yard
and be washed downhill to contaminate another property. There is nothing
to suggest that the Kreileins should have expected this outcome, so the
fourth exception does not apply.
In summary, none of the exceptions to the general rule of non-
liability of principals for the acts of independent contractors applies
here. Therefore, the trial court correctly concluded that the Kreileins
were entitled to summary judgment.
This does not leave the Beckers without potential recourse. The
Court of Appeals found a genuine issue of material fact concerning whether
Krueger left the disconnected sewer line in a dangerously defective or
imminently dangerous condition that created a risk of imminent personal
injury. Becker, 754 N.E.2d at 948. It therefore reversed the summary
judgment granted to Krueger. We summarily affirm the Court of Appeals
ruling on this point. Ind. Appellate Rule 58(A)(2).
Conclusion
We affirm summary judgment in favor of the Kreileins. We reverse the
summary judgment granted to Krueger.
SULLIVAN, BOEHM, and RUCKER, JJ., concur.
DICKSON, J., dissents and would also reverse the summary judgment favoring
the Kreileins, believing that they should have foreseen that an uncapped
sewer line would result in the discharge of sewage.
-----------------------
[1] In Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493, 495-96 (Ind.
1995), we adopted a ten-factor analysis to distinguish employees from
independent contractors. See Moberly, 757 N.E.2d at 1009-10. Because it
is the only potential issue of material fact invoked, we address only the
single factor of control.