Attorney for Appellants Attorney for
Appellees
Patrick D. Murphy James E. Bourne
South Bend, Indiana New Albany,
Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 88S05-0310-CV-483
Amy M. Rhodes and Janet Gurtz as
Co-Personal Representatives of the
Estate of Dwaine D. Gurtz, Deceased
Appellants (Plaintiffs below),
v.
Mark D. Wright, Stacey Wright, Chris
E. Wright, Julie Wright, Alan Wright,
and Judy Wright, d/b/a Wright Brothers
Farm
Appellees (Defendants below).
_________________________________
Appeal from the Washington Circuit Court, No. 88C01-0111-CT-00307
The Honorable Robert L. Bennett, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 88A05-0302-
CV-00064
_________________________________
March 31, 2004
Sullivan, Justice.
The trial court granted summary judgment for Defendants in a
negligence action for the death of a worker on its premises. The Court of
Appeals affirmed, holding that Defendants did not control the area where
the accident occurred and that the danger was obvious. Finding genuine
issues of material fact in this regard, we reverse.
Background
On February 13, 2001, some time after 3:00 a.m., Dwaine D. Gurtz, a
truckdriver for Tyson Foods, Inc., was struck and killed by a forklift
while at Wright Brothers Farm. Defendants own the farm and raise chickens
under a contract for Tyson. The accident occurred while Tyson employees
were at the farm collecting some chickens. Gurtz parked his truck near one
of the chicken houses and began unbooming chains from the trailer of the
truck. Another Tyson employee who was in a chicken house picking up cages
of chickens backed a forklift out of the chicken house. The forklift
struck Gurtz from behind, pinning him between the back of the forklift and
the trailer. He died approximately one hour later.
At the time of the accident, it was dark and foggy. The lights in
the chicken houses were off and the outside of the chicken houses did not
have any lighting to illuminate the loading area. Neither the backup
lights nor the backup alarm on the forklift were working.
The Estate of Dwaine D. Gurtz sued Wright Brothers Farm for
negligence in failing to light the loading area properly and failing to
warn Gurtz of known dangers on the property. The trial court granted
summary judgment for Wright Brothers Farm and the Court of Appeals
affirmed. Rhodes v. Wright, 790 N.E.2d 577, 578 (Ind. Ct. App. 2003). We
granted transfer pursuant to Ind. Appellate Rule 58(A) and now reverse.
Discussion
I
A party is entitled to summary judgment if no material facts are in
dispute and as the facts stand, under the law, the party is entitled to a
judgment in its favor. Ind. Trial Rule 56(C) (“The judgment sought shall
be rendered forthwith if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”). Summary judgment is
therefore appropriate when the undisputed material evidence negates one
element of a claim. Reed v. Beachy Constr. Corp., 781 N.E.2d 1145, 1148
(Ind. Ct. App. 2002), trans. denied, 792 N.E.2d 42 (Ind. 2003). Plaintiffs
allege that Defendants committed the tort of negligence, which has three
elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach
of that duty; and (3) injury to the plaintiff resulting from the
defendant’s breach. Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind.
2003); Douglass v. Irvin, 549 N.E.2d 368, 369 (Ind. 1990).
The Court of Appeals affirmed summary judgment for Defendants in part
because it found that they did not owe a duty to Gurtz because they did not
exert control over the area where the accident occurred when it occurred.
Rhodes, 790 N.E.2d at 580-81. The court based its conclusion on the
contract between Tyson and Defendants. Id. at 580. Plaintiffs contend
that the Court of Appeals erred in using the contract between Tyson and
Defendants, instead of Indiana law, to determine if Defendants owed a duty
to Gurtz.
Plaintiffs are correct that Indiana law governs whether Defendants
owed a duty to Gurtz. The Court of Appeals placed too much emphasis on the
contract between Tyson and Defendants in determining that no duty existed.
The contract aids in understanding the business relationship between Tyson
and Defendants, but that is all. A person cannot limit his or her tort law
duty to third parties by contract. Young v. Tri-Etch, Inc., 790 N.E.2d
456, 459 (Ind. 2003) (reversing grant of summary judgment for defendant
where estate of liquor store employee sued alarm service company for
wrongful death; one-year statute of limitations in contract between liquor
store and alarm company did not apply to employee because employee was not
a party to the contract); Morris v. McDonald’s Corp., 650 N.E.2d 1219, 1221-
23 (Ind. Ct. App. 1995) (reversing summary judgment and holding plaintiff
injured at McDonald’s could sue McDonald’s despite exculpatory and
indemnity clauses in contract between McDonald’s and franchise operator
because injured plaintiff was not a party to that contract).
In premises liability cases, whether a duty is owed depends primarily
upon whether the defendant was in control of the premises when the accident
occurred. The rationale is to subject to liability the person who could
have known of any dangers on the land and therefore could have acted to
prevent any foreseeable harm. Harris v. Traini, 759 N.E.2d 215, 225 (Ind.
Ct. App. 2001) (“Only the party who controls the land can remedy the
hazardous conditions which exist upon it and only the party who controls
the land has the right to prevent others from coming onto it.” (quotations
and citations omitted)), trans. denied, 774 N.E.2d 516 (Ind. 2002).
Plaintiffs contend that as owners of the land, Defendants controlled
it. They state:
Wright Brothers Farm (1) owned the loading area where Gurtz was
struck; (2) was responsible for maintaining that loading area; (3)
determined who could enter its property and when; (4) received advance
notice of Tyson’s scheduled arrivals; (5) gave permission to Tyson to
operate the forklift on the property; and (6) was required under the
[contract] to be present while the chickens were caught.
(Reply Br. in Support of Pet. to Transfer at 2.) Defendants argue that
they cannot be held liable for Gurtz’s death because they did not control
the area where the accident occurred when it occurred. According to
Defendants, when Tyson employees arrive to catch chickens, they take over
the property. Tyson’s workers take charge of the chicken houses and
loading area, and Defendants do not instruct Tyson employees on how to
perform their job. Accordingly, Defendants maintain that at the time Gurtz
was killed, Tyson controlled the land, so only Tyson can be held
responsible for harm to its employees.
Generally, whether a duty exists is a question of law for the court to
decide. Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 517 (Ind. 1994).
Sometimes, however, the existence of a duty depends upon underlying facts
that require resolution by the trier of fact. Douglass, 549 N.E.2d at 369
n.1 (“‘While it is clear that the trial court must determine if an existing
relationship gives rise to a duty, it must also be noted that a factual
question may be interwoven with the determination of the existence of a
relationship, thus making the ultimate existence of a duty a mixed question
of law and fact.’” (quoting Clyde E. Williams & Assocs. v. Boatman, 176
Ind. App. 430, 435, 375 N.E.2d 1138, 1141 (1978))).
We think that there is a sufficient factual dispute about whether
Tyson or Defendants controlled the premises where and when the accident
occurred that a jury should decide the question. See Carroll by Carroll v.
Jagoe Homes, Inc., 677 N.E.2d 612, 616 (Ind. Ct. App. 1997) (reversing
summary judgment because there was a genuine issue of material fact
regarding whether defendant was a possessor of the premises where plaintiff
was injured), trans. denied, 690 N.E.2d 1181 (Ind. 1997); see also Crist v.
K-Mart Corp., 653 N.E.2d 140, 145 (Ind. Ct. App. 1995) (stating that “one
commentator has described possession as ‘a question of fact involving
occupation and intent to control the particular area where the injury
occurred’” (quoting Joseph A. Page, The Law of Premises Liability 3 (2d ed.
1988))), trans. denied.
Furthermore, even if Tyson controlled the premises while it caught
chickens, that would not automatically relieve Defendants of responsibility
for injuries to Tyson’s employees. Defendants have always controlled the
external lighting. Tyson provided its contract growers with specifications
for building the chicken houses, but Tyson never prescribed any procedure
for external lighting around the chicken houses. It neither required nor
forbid the installation of external lights. Out of approximately 50
growers that Tyson employs, “[a]lmost all of the Tyson growers have
external lights outside the entrances to their chicken houses. Less than
five do not have external lights.” (Appellants’ App. at 103.) The lack of
lighting may have contributed to the accident. The Tyson employee that
struck Gurtz with his forklift admitted that “external lights are used to
illuminate the loading area so ‘the drivers can see.’” (Id. (quoting Berry
Dep. at 129).)
Because the facts are in dispute as to whether Tyson or Defendants
controlled the area where the accident occurred at the time it occurred and
because Defendants controlled the external lighting that may have
contributed to Gurtz’s death, summary judgment is inappropriate on this
issue.
Additionally, the parties disagree as to Gurtz’s status, which could
affect the substance of the possible duty owed by Defendants. Plaintiffs
assert that Gurtz was an invitee on Defendants property and so Defendants
owed him a duty to keep the premises in a reasonably safe condition.
Defendants disagree and argue that because Tyson was in control of the area
at the time of the accident “Gurtz . . . was not an invitee of the Wrights
at the time, and in the place, that he was struck and killed by his co-
employee . . . .” (Br. in Resp. to Pet. to Transfer at 8.)
Defendants, however, have already admitted that Gurtz was an invitee
or business visitor “[a]t the time of the incident.” (Appellants’ App. at
128.) Under Ind. Trial Rule 36(B), admissions are “conclusively
established unless the court on motion permits withdrawal or amendment of
the admission.” Defendants have not made any motion to withdraw or amend
these admissions, but instead attempt unsuccessfully to recast their
previous statements. In any event, we view Defendants’ argument here to be
equivalent to their assertion discussed supra that Tyson, and not
Defendants, controlled the area. As we have seen, whether and to what
extent Tyson controlled the premises is a question of fact not amenable to
resolution by summary judgment.
II
Defendants raised several additional arguments for granting summary
judgment in their favor: (1) that the alleged dangers were obvious; (2)
that Mark Wright was not aware of any of the alleged hazards; (3) that
Defendants lacked knowledge superior to Gurtz; and (4) that the lighting
was not a proximate cause of the accident.
In negligence cases, summary judgment is “rarely appropriate.” Tibbs
v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996); accord
Guy’s Concrete, Inc. v. Crawford, 793 N.E.2d 288, 293 (Ind. Ct. App. 2003),
trans. denied, Modern Heating & Cooling, Inc. v. Crawford, 2003 Ind. LEXIS
1086 (Ind. Dec. 18, 2003). This is because negligence cases are
particularly fact sensitive and are governed by a standard of the objective
reasonable person – one best applied by a jury after hearing all of the
evidence.
The Court of Appeals affirmed the trial court’s grant of summary
judgment in part on the ground that the danger – reduced visibility – was
obvious. Rhodes, 790 N.E.2d at 580. Plaintiffs argue that the court
misunderstood what the danger was. “The danger was not darkness per se or
even the operation of a forklift at night. Rather, the danger was that the
forklift was being operated backward (1) in the dark; (2) without working
back lights; and (3) without a working back-up alarm.” (Pet. to Transfer
at 7.) This danger, Plaintiffs contend, was not obvious but latent.
If the danger were obvious, then Defendants probably would not be
liable. Restatement (Second) of Torts § 343A(1) states: “A possessor of
land is not liable to his invitees for physical harm caused to them by an
activity or condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite such knowledge or
obviousness.” In this instance, we cannot say with certainty what the
danger was, so we cannot say whether it was obvious. The facts surrounding
Gurtz’s death do not suggest one clear danger. There were no external
lights on the chicken houses and no working backup lights or working backup
alarm on the forklift. Any one of these factors, or some combined, could
have been dangerous and thus required Defendants either to warn Gurtz or to
take precautionary measures. And, the obviousness of any danger still
would not resolve the issue. If Defendants were able to anticipate any
potential harm, they may have been required to take some action to prevent
it. Defendants concede on appeal “that there is an issue of fact as to
whether Mark Wright knew that the backup lights and backup alarm on the
forklift were not working at the time of the accident.” (Br. of Appellees
at 6.)
This concession also undermines Defendants’ argument that Gurtz had
superior knowledge of the situation, which Defendants suggest would relieve
them of a duty to warn Gurtz of any alleged danger. We disagree. Whether
a landowner has superior knowledge goes to the question of breach, not of
duty, and it is one factor among many used to determine if there was a
breach. Douglass, 549 N.E.2d at 370-72. Further, even if a jury were to
find that Defendants were not negligent in failing to warn Gurtz, it could
still find that Defendants were negligent in failing to take precautionary
measures, such as installing external lighting.
Just as we cannot say with certainty what the danger was and whether
it was obvious, we also cannot say with certainty that the lack of outside
lighting was not a proximate cause of Gurtz’s death. One’s action or
omission is the proximate cause of an injury when “‘the ultimate injury
[is] one that was foreseen, or reasonably should have been foreseen, as the
natural and probable consequence of the act or omission.’” Vernon v.
Kroger Co., 712 N.E.2d 976, 981 (Ind. 1999) (quoting Havert v. Caldwell,
452 N.E.2d 154, 158 (Ind. 1983)). The question of proximate cause is one
usually left to the jury. Id. (stating that proximate cause “is primarily
a question of fact to be determined by the jury”); Bridgewater v. Econ.
Eng’g Co., 486 N.E.2d 484, 487 (Ind. 1985) (“It is true that summary
judgments are rarely granted in negligence actions when the sole issue is
either proximate cause or contributory negligence.”). In this case, the
proximate cause inquiry is a question of which missing safety device caused
Gurtz’s death or which, if present, could have prevented his death. The
facts do not dictate a single answer. Palmer & Sons Paving, Inc. v. N.
Ind. Pub. Serv. Co., 758 N.E.2d 550, 557-58 (Ind. Ct. App. 2001)
(“[B]ecause we are unable to predict what would have happened had there
been barricades around the shed or signs posted on the shed, we cannot rule
out the possibility that the . . . incident could have been avoided. Thus,
we cannot find that the facts are undisputed and lead to but a single
inference or conclusion.”).
These four grounds raised by Defendants in support of summary
judgment cannot be resolved in such a hasty manner. The facts do not
provide a clear answer as a matter of law, and a reasonable jury could find
for either party on any of these issues. Summary judgment is therefore
inappropriate.
Conclusion
Having previously granted transfer, we now reverse the judgment of
the trial court. This case is remanded to the trial court for further
proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.