concurring in part and dissenting in part.
~ I agree with the majority in all respects except the reversal of summary judgment in favor of Design Workshop. I believe Design Workshop was entitled to summary judgment on the merits. Moreover, I believe the Evanses waived any argument challenging the trial court's ruling in that regard when the original appeal of that ruling was dismissed at their request. Therefore, I respectfully dissent both from the decision to address the merits of that judgment, and also to reverse it on the merits.
Design Workshop was hired to design the landscaping around the two casinos. Its plans called for a driveway constructed of large beds of concrete pavers. Design Workshop produced a design that utilized a number of concrete bands to contain and hold the pavers in place. ~As originally designed, approximately four of those bands extended from the casinos to a "green planting area" (green area). Brief of Appellee Design Workshop, Inc. at 3. It was one of these four bands that was involved in Lorean Evans's fall. The green area was entirely decorative as originally conceived. There were no benches, tables, or anything else located therein that would have attracted casino patrons to the area. In fact, a casino employee submitted an affidavit stating that she had never seen anyone walk into or around the green area. During the construction phase of the project,15 Design Workshop representatives occasionally visited and monitored the progress of construction. The last visit to the site by Design Workshop personnel occurred on May 15, 1997. The project was completed no later than July 31, 1997, which is the day that Design Workshop sent its final invoice for payment. That final payment was made on September 22, 1997.
Sometime after Design Workshop's work on the project was completed, but *1120before Evans fell, the casinos decided to dig up the green area and construct a parking lot in its place. That project, in which Design Workshop played no part, was completed no later than July 7, 1998. The incident that resulted in Lorean Evans's injury occurred three weeks later, on July 28, 1998. Therefore, the incident occurred well in excess of one year after Design Workshop's work on the project ended, and approximately ten months after Design Workshop received final payment for its services.
As a matter of law, how long does a contractor's liability extend after the work has been completed and the owner resumes control of the premises? Our supreme court addressed precisely that question, as the following excerpt reflects:
Contractors are liable for negligence while their work is in progress because they are presumably in a better position than the landowner to prevent injuries to third parties. However, because a contractor's presence is transient the law has sought to relieve the contractor of liability after the work is accepted and completed, subject to some exceptions. Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457 (1896) is the seminal Indiana case holding that a contractor's duty of care to third parties is extinguished upon acceptance of the work. In Daugherty, the contractor remodeled the front wall of a drug store. Two years after the work was completed and turned over to the owner, the wall collapsed and killed the plaintiff's daughter, who had been walking on the public sidewalk below. In affirming the trial court's grant of a demurrer, we reasoned that "[tIhere must be some causal connection between the negligence and the hurt; and such causal connection is interrupted by the interposition, between the negligence and the hurt of any independent human agency." Daugherty, 145 Ind. at 257, 44 N.E. at 457 (internal quotation marks omitted). Thus, we emphasized in Daugherty that a contractor's duty of care ceases once the owner is again better able than the contractor to prevent harm to third parties.
Blake v. Calumet Const. Corp., 674 N.E.2d 167, 170-71 (Ind.1996). The court took the occasion of Blake not to abrogate the long-held rule that a contractor's liability terminates at acceptance, but to expand on it. Specifically, the court provided guidance on determining whether "acceptance" as used in this context has occurred. The court set out the following four-step ingqui-ry:
"(1) the owner or its agent reasserted physical control over the premises or instrumentality; (2) the work was actually completed; (8) the owner expressly communicated an acceptance or release of liability; or (4) the owner's actions permit a reasonable inference that the work was accepted. The owner can indicate an acceptance by re-occupying, leasing, selling or otherwise using the premises in a manner inconsistent with further physical control or construction activity by the contractor."
Id. at 171.
The evidence of record reveals that Design Workshop completed its duties for Buffington Harbor Riverboats, LLC. no later than July 31, 1997 and was paid in full for its completed work in September of 1997. "Physical control over the premises" was surely reasserted by Buffington when Design Workshop's duties were completed and it was paid the balance of the fees owed for its services. This reassertion of control is evidenced by, among other things, the fact that Buffington modified Design Workshop's work by replacing the green area with a parking lot-a deci*1121sion that was made and implemented without consulting Design Workshop. Moreover, the facts that Buffington (1) paid the final bill for Design Workshop's services without registering a complaint, (2) did: not consult Design Workshop again, and (8) conducted business as usual at the casinos after Design Workshop's work was concluded leads not merely to a reasonable inference that Buffington accepted Design Workshop's work, but indeed leads inexorably to only that conclusion. Therefore, in my view, the trial court did not err in granting summary judgment in favor of Design Workshop.16
Even assuming for the sake of argument that there remains a question of fact. on whether Buffington "accepted" Design Workshop's work, I believe the Evanses waived their challenge to the granting of Design Workshop's summary judgment motion when they petitioned this court to dismiss their original appeal of that ruling. Trial Rule 54 is based on the federal model, and was adopted in an effort to provide greater certainty to litigating parties, and to strike an appropriate balance between the interest in allowing for speedy review of certain judgments, and the interest in avoiding piccemeal litigation. Martin v. Amoco Oil Co., 696 N.E.2d 383 (Ind.1998), cert. denied, 525 U.S. 1049, 119 S.Ct. 608, 142 L.Ed.2d 548. Subsection (B) of that rule provides, in pertinent part, as follows: "A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment{.]"
No one disputes that the Evanses could have appealed the grant of summary judgment in favor of Design Workshop at the time the judgment was entered. Indeed, the Evanses did just that. They asked this court to dismiss that appeal, however, in a motion filed pursuant to Trial Rule 37. It appears that decision was tactical in nature, and was at least partially related to Cole's request to certify the denial of its summary judgment motion for interlocutory appeal. The majority concludes that revival of the appeal is appropriate in part because "it was an order of this court which resulted in the Evanses' appeal being dismissed." Op. at 1115-1116. The majority further notes that the appeal was dismissed without prejudice. Although these statements are factually correct, they do not lead inevitably to the conclusion that it seems to me the majority draws from them, i.e., that we must permit revival of the appeal out of a sense of fair play. ‘
I agree with the majority that, in hindsight, we should not have granted the TR. 37 motion to dismiss. The fact that we granted their request, and did so without prejudice, did not thereby confer on the Evanses what amounts to immunity from the operation of the rules of trial and appellate procedure. It seems to me that this case provides a clear example of why we should not permit litigants to "shelve" the appeal of a dismissal of one party while the matter proceeds to trial with respect to remaining parties Following a trial, a *1122jury determined the amount of damages suffered by the Evanses and also apportioned fault among all of the parties then present in the lawsuit. We cannot surgically reinsert another party, ie., Design Workshop, back into the proceedings at this point without running a serious risk of having to start all over again, at least from the time when the summary judgment motion was submitted. In my view, this is unacceptable from the standpoint of judicial economy. I believe the Evanses waived any error in the granting of Design Workshop's motion to dismiss when the first appeal of that ruling was dismissed at their request.
. I note here that Design Workshop's duties on the project consisted only of designing the landscaping. Design Workshop was not involved in constructing or implementing its design. ’ ~
. Although I would grant summary judgment based upon the conclusion that Buffing-ton accepted Design Workshop's work, I believe Design Workshop is also entitled to summary judgment on the merits of the Ev-anses' claim. The allegedly dangerous condition that led to Lorean Evans's injury was the alleged, precipitous drop between the concrete band and the parking lot. It seems obvious to me that there can exist no question of fact as to whether Design Workshop was liable for any danger inherent in that condition when the parking lot was not even contemplated, much less constructed, at the time Design Workshop completed its work on the project.