Becker v. Kreilein

SULLIVAN, Judge,

concurring in result.

I concur as to Parts I, II, III B, and IV, I respectfully disagree with the majority as to Part III A.

A reasonable jury might well conclude that Krueger's independent contractor work for the Kreileins fell within the exception "where the act to be performed [disconnecting the existing sewer] will probably cause injury to others unless due precaution is taken." Op. at 945.

The failure to determine whether the sewer line served other persons, le. the Trujillos, may well have been the failure to use "due precaution." In such instance, it could be readily foreseen that the sewage from the Trujillos, the other user, would find its way elsewhere causing injury and/or damage1 to other persons, either *949the Trujillos themselves or a third person such as the Beckers.2

For this reason and for the reasons of my concurrence in the other parts of Judge Riley's opinion, I join in the reversal of the summary judgments entered in favor of both defendants.

. Somewhat parenthetically, I would take issue with the trial court's conclusion that the Beckers "suffered no direct physical impact." Op. at 943. Exposure to raw sewage in one's home is a direct physical impact by the sewage upon the residents of that premises. See Schuman v. Kobets, 698 N.E.2d 375 (Ind.Ct.App., 1998) (tenant has cause of action against landlord for personal injury caused by exposure to pigeon droppings in window casings and walls of apartment), adopted in part upon transfer 716 N.E.2d 355 (Ind.1999); Yeager and Sullivan, Inc. v. O'Neill, 163 Ind. App. 466, 324 N.E.2d 846 (1975).

. It is possible that had Krueger capped both ends of the sewer line, ie. at Kreileins' location and at the tie-in to the main sewer, the sewage from Trujillo's property would either back up in Trujillo's residence (in which case Trujillo would be the plaintiff) or still would have drained onto Kreileins' property and then on to Becker's property. In this analysis, Krueger's negligence would appear to be the failure to determine whether there were other users rather than merely the failure to cap both ends of the line which he assumed to be a "dead line." In any event, my analysis leads to a reversal of the summary judgments both as to Krueger and the Kreileins.