ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
Mark K. Phillips John B. Drummy
Phillips & Phillips, PC Brent R. Weil
Boonville, Indiana Kightlinger & Gray, LLP
Henderson, Daily, Withrow & DeVoe
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 ). )
The old line ran beneath a garage and driveway. The Kreileins took
Kruegers 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
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 16
th 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.
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 courts decision is clothed with a presumption of validity.
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 courts 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).
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
will create a nuisance. Standard sewer repairs do not necessarily (in
fact, do not even usually) create a nuisance, so this exception also does
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).
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.