Attorneys for Appellants Attorneys for Appellee
Douglas D. Small Don G. Blackmond, Jr.
Foley & Small Peter J. Van Dyke
South Bend, Indiana Doran · Blackmond LLP
South Bend, Indiana
Attorney General of Indiana
John H. Lewis
Office of the Attorney General
Appeal from the Marshall Circuit Court, No. 50C01-9908-CT-26
The Honorable Michael D. Cook, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 50A03-0302-CV-56
March 11, 2004
Over the next several days additional snow fell and INDOT plowed the roads
in the area several times. On January 12, in response to an
accident at the intersection of U.S. 31 and Old Michigan Road, a police
officer contacted INDOT concerning the snow pile, and with the help of another
officer physically kicked away a portion of the pile until he felt that
driving conditions were safe. A snowplow dispatched by INDOT later arrived and
pushed snow from one section of the pile.
On January 15, a two-car collision occurred at the intersection. Jordan Schlosser,
the driver of one of the cars, was injured and Jocelyn Schlosser, her
thirteen-year-old sister, was killed. One-year-old Madysen Wagoner was also injured.
Thereafter on August 30, 1999, Julee Schlosser, as Administratrix of Jocelyn Schlossers estate, Jordan Schlosser on her own behalf and on behalf of Madysen Wagoner, and Joshua Wagoner also on behalf of Madysen Wagoner (referred to collectively as Plaintiffs) filed a complaint against the State of Indiana, Rock Industries, and Marshall County, Indiana (referred to collectively as Defendants). See footnote According to Plaintiffs the Defendants snow removal efforts created the large pile of snow on the median, reducing visibility, and thereby causing their injuries. A fter both sides conducted discovery, Rock Industries filed a motion for summary judgment alleging that it could not be held liable for its work once it was accepted by the State. The trial court granted the motion. On review, Plaintiffs argued that exceptions to the acceptance rule created liability on behalf of the State, and that in any event the court should abolish the antiquated common law acceptance rule. Appellants Br. at 35. In affirming the trial courts judgment, the Court of Appeals determined that the exceptions to the rule did not apply in this case. The Court of Appeals declined the invitation to abolish the acceptance rule noting [s]uch is within the province of the Indiana Supreme Court, rather than this Court. Schlosser v. Rock Indus., Inc., 796 N.E.2d 350, 358 n.6 (Ind. Ct. App. 2003). We grant Plaintiffs petition to transfer and reverse the judgment of the trial court.
In this case, the trial court granted summary judgment in favor of Rock
Industries. The trial court did not set forth its reasons for doing
so. However, in its memorandum in support of summary judgment, Rock Industries
argued: (i) the State of Indiana through INDOT had accepted Rock Industries work
prior to the Plaintiffs sustaining injuries, App. to Appellees Br. at 31; (ii)
Rock Industries work did not qualify for an exception to the accepted work
rule, id. at 36-38; and (iii) Rock Industries conduct was not the proximate
cause of the Plaintiffs injuries. Id. at 38-41.
Because we have abandoned the acceptance rule, Rock Industries claims must be evaluated
under traditional principles of negligence. Peters, ___ N.E.2d at ___, slip op.
at 9. In that regard Rock Industries argument that its conduct was
not the proximate cause of the Plaintiffs injuries is best determined by the
trier of fact.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.