ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOHN R. OBENCHAIN CHARLES P. RICE
J. THOMAS VETNE Boveri Murphy Rice Ryan
Jones Obenchain, LLP & LaDue, LLP
South Bend, Indiana South Bend, Indiana
COURT OF APPEALS OF INDIANA
GARY W. OSTERLOO, )
Appellant-Defendant, ) )
vs. ) No. 20A04-0103-CV-117
CHARLES A. WALLAR, a minor )
by and through TINA M. WALLAR, his )
mother and natural guardian, ) )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Stephen E. Platt, Judge
Cause No. 20D02-9509-CT-0585
October 31, 2001
Appellant-defendant Gary W. Osterloo brings this interlocutory appeal.
See footnote He challenges the trial courts
denial of his motion for summary judgment on Charles Wallars claim against him
for personal injuries. Specifically, Osterloo asserts that no evidence was designated to
the trial court demonstrating that Osterloo had breached a duty of care to
Wallar or that any purported breach of a duty proximately caused Wallars injuries.
Osterloo also argues that the trial court abused its discretion in refusing
to permit him to amend his answer to the complaint in accordance with
Ind.Trial Rule 15(A).
On January 21, 1995, approximately six to eight inches of snow fell in
Elkhart. The roads in Elkhart were hazardous and slippery as a result
of the snowfall. The next day, six-year-old Charles and his two brothers,
Brandon Wallar and Scot Eby, obtained permission from their father, William B. Wallar
(Mr. Wallar), to go sledding on some piles of fill dirt that were
located on an unimproved six-acre parcel of land off Neff Street. Niblock
Excavating, Inc. (Niblock Excavating) owned the property and had placed the piles of
fill on the parcel during the course of a sanitary sewer construction project
it was performing for the City of Elkhart.
As the children began to sled, Scot, who was four years old at
the time, started to pull Charles and his sled up one of the
large dirt piles. The rope slipped from Scots hands and caused Charles
to slide down the front of the hill onto Neff Street. Charles
darted into the path of Osterloos oncoming vehicle. Osterloo estimated that his
vehicle was traveling approximately 26 to 27 miles per hour. Just before
the collision, Osterloo noticed a black streak out of the corner of his
left eye as something came flying out in front of [the] truck.
Appellants App. at 82, 108, 115-16. Osterloo was unable to control his
vehicle and eventually skidded into a neighbors yard after the impact.
Charles filed a complaint against Osterloo on September 20, 1995, for the personal
injuries he sustained in the accident.See footnote In answering the complaint, Osterloo identified
Mr. Wallar and Niblock Excavating as potentially culpable nonparties. Charles then amended
his complaint and brought claims against Mr. Wallar and Niblock Excavating. The
claim against Niblock Excavating alleged that its negligent placement of the fill dirt
piles created an attractive nuisance that proximately caused the injuries.
On March 19, 1997, Mr. Wallar filed a motion for summary judgment, claiming
that the doctrine of parental immunity shielded him from liability for his sons
injuries as a matter of law. Osterloo then sought leave of the
court to amend his answer pursuant to Ind.Trial Rule 15(A),See footnote to assert the
fault of Mr. Wallar as a nonparty in the event that Mr. Wallar
was dismissed from the action. Charles objected to Osterloos motion, contending that
inasmuch as Mr. Wallar had been joined in the action as a defendant,
he could not be later named as a nonparty to the action.
Thereafter, the trial court granted both Mr. Wallars summary judgment motionafter finding that
no party had objected to the entry of summary judgment on Mr. Wallars
behalfand Osterloos T.R. 15(A) motion. After the T.R. 15(A) motion was granted,
Charles moved to strike Osterloos nonparty defense as to Mr. Wallar. While
the motion to strike was under advisement, Osterloo again moved to file an
amended answer in accordance with T.R. 15(A), which sought to identify Mr. Wallar
and Niblock Excavating as nonparties. The trial court denied Osterloos motion on
December 21, 2000, and determined as follows:
Defendants William B. Wallar and Niblock Excavating, Inc. were dismissed as defendants in
the lawsuit. By definition, a nonparty [according to] Indiana law cannot be
a person who caused or contributed to cause the alleged injury, death, or
damage to property but who has not been joined in the action as
a defendant. I.C. §34-6-2-88. Both Wallar and Niblock were joined in
the action as
defendants and thus by statute, cannot be rejoined as non-parties.
Appellants App. at 21 (emphasis in original). Osterloo now appeals this ruling
along with the denial of his motion for summary judgment.
DISCUSSION AND DECISION
I. Standard of Review
A grant of summary judgment requires that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a matter
of law. Ind.Trial Rule 56(C). On appeal from summary judgment, the
reviewing court faces the same issues that were before the trial court and
analyzes them in the same way. Carie v. PSI Energy, Inc., 715
N.E.2d 853, 855 (Ind. 1999). We view the pleadings, depositions, answers to
interrogatories, and affidavits in the light most favorable to the nonmoving party.
Id. Although the nonmovant has the burden of demonstrating the grant of
summary judgment was erroneous, we carefully assess the trial courts decision to ensure
that the nonmovant was not improperly denied his day in court. Id.
We also note that summary judgment is rarely appropriate in negligence cases.
Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).
Issues of negligence, contributory negligence, causation and reasonable care are more appropriately
left for the determination of a trier of fact. Ousley v. Bd.
of Commrs of Fulton County, 734 N.E.2d 290, 293 (Ind. Ct. App. 2000),
II. Osterloos Claims
A. Denial of Summary Judgment
Osterloo first contends that the trial court erred in denying his motion for
summary judgment. Specifically, he asserts that no designated evidence was presented that
supports an inference that Osterloo breached any duty of care owed to Wallar,
or that any such breach amounted to the proximate cause of Wallers injuries
Osterloo makes the following arguments in support of his claim that summary judgment
was appropriate: 1) evidence showing Osterloos speed at the time of the
accident was not designated to the trial court; 2) Osterloos alleged violation of
our reduced speed statute, I
See footnote was not a proximate
cause of the collision; and 3) Osterloos alleged failure to maintain a proper
lookout did not proximately cause Charless injuries. Appellants brief at 12-16.
In resolving this issue, we need only examine the relevant provisions of our
reduced speed statute:
The driver of each vehicle shall . . . drive at an appropriate
reduced speed as follows:
(1) When approaching and crossing an intersection or railway grade crossing.
(2) When approaching and going around a curve.
(3) When approaching a hill crest.
(4) When traveling upon a narrow or winding roadway.
When special hazard exists with respect to pedestrians or other traffic or
by reason of weather or highway conditions.
I.C. § 9-21-5-4 (emphasis supplied). Proof of the violation of a safety
regulation creates a rebuttable presumption of negligence. Witham v. Norfolk & W.
Ry. Co., 561 N.E.2d 484, 485 (Ind. 1990). More specifically, the violation
of a motor vehicle statute creates a rebuttable presumption of negligence that may
be overcome by evidence that the driver, even though violating the statute, acted
as a reasonable prudent person would act under the circumstances. Stepanek v.
Durbin, 640 N.E.2d 429, 430 (Ind. Ct. App. 1994).
B. Amendment of Answer
Here, the designated evidence shows that the weather was hazardous on the morning
of the collision. Osterloo was familiar with Neff Street and estimated that
he was going approximately 26 to 27 miles per hour. Appellants App.
at 156. Osterloo admitted, however, that his actual speed may have been
different than what he had estimated. Appellants App. at 157. Osterloo
also acknowledged that he was unable to control his vehicle when the accident
occurred, and he began to skid. After the impact, Osterloos vehicle left
lengthy skid marks on the road. This evidence gives rise to conflicting
inferences of negligence that should be reserved to the finder of fact.
Put another way, the issue of whether Osterloos speed was appropriate given the
weather and road conditions is a genuine issue of material fact. Thus,
the trial court properly denied Osterloos motion for summary judgment.
Osterloo next maintains that the trial court abused its discretion by denying him
the opportunity to identify Mr. Wallar as a nonparty after Mr. Wallars dismissal
at the summary judgment stage of the proceedings. Specifically, he contends on
appeal that it would be fundamentally unfair to prevent a remaining defendant from
raising the nonparty defense as to a dismissed defendant that could not properly
have been sued by the plaintiff in the first place. Appellants brief
Consistent with an underlying purpose to facilitate decisions on the merits and to
avoid pleading traps, the Indiana Trial Rules generally implement a policy of liberal
amendment of pleadings, absent prejudice to an opponent. Kimberlin v. DeLong, 637
N.E.2d 121, 128 (Ind. 1994). For its decision to deny or allow
the amending of a complaint, a trial court will be reversed only for
an abuse of discretion. See id.
For purposes of fault allocation, the Comparative Fault Act allows defendants to assert
that a nonparty caused a plaintiffs damages in full or in part.
Ind. Code § 34-4-33-10(a) (1993) (recodified at Ind. Code § 34-51-2-14). The
defendant faces certain time restrictions in pleading the nonparty affirmative defense:
A nonparty defense that is known by the defendant when he files his
first answer shall be pleaded as part of the first answer. A
defendant who gains actual knowledge of a nonparty defense after the filing of
an answer may plead the defense with reasonable promptness.
Ind. Code § 34-4-33-10(c) (1993) (recodified at Ind. Code § 34-51-2-14).
After the accident but before Charles had filed his complaint, the Comparative Fault
Acts definition of nonparty had been amended. Therefore, the amended version of
the Comparative Fault Act applies to the pleadings in this case. Estate
of Robinson v. C&I Leasing, Inc., 691 N.E.2d 474, 476 (Ind. Ct. App.
1998) (holding that the Comparative Fault Act amendment was procedural and therefore application
was prospective where the amendment had gone into effect after the injury but
before the filing of the complaint), trans. denied. The Comparative Fault Act
defines a nonparty as a person who caused or contributed to cause the
alleged injury, death, or damage to property but who has not been joined
in the action as a defendant. Ind. Code Ann. § 34-4-33-2(2) (West
Supp. 1995) (recodified at Ind. Code § 34-6-2-88). Osterloo argues that
out of fairness he should be allowed to amend his answer to add
Mr. Wallar as a nonparty, even though Mr. Wallar had been joined as
a defendant. Charles counters that, because Mr. Wallar had been joined in
the action as a defendant, Mr. Wallar does not fall within the definition
of a nonparty.
Our supreme court recently addressed this issue in Owens Corning Fiberglass Corp. v.
Cobb, 754 N.E.2d 905 (Ind. 2001). In that products liability case, the
plaintiff had filed a complaint against thirty-three manufacturers or distributors of asbestos, including
Owens Corning. Subsequently, some of those defendants settled with the plaintiff or
were otherwise dismissed from the action. As a result, Owens Corning sought
to add the former defendants as nonparties. Id. at 907. In
response, the plaintiff argued in a summary judgment motion that the trial court
should disallow the addition of the nonparties because 1) Owens Corning had not
sought to add the parties in a timely manner, and 2) Owens Corning
lacked sufficient evidence that the nonparties contributed to the plaintiffs injuries. The
trial court granted the plaintiffs summary judgment.
Our supreme court initially observed that there were two obvious consequences of the
fact that those parties were former defendants. First, since they were named
defendants they could not be added as nonparties in the original answer.
Second, they were known to the plaintiff. Id. at 914. Relying
on the intent of the Comparative Fault Act, our supreme court reasoned:
[I]t is clear to us that the notice provisions with respect to nonparty
affirmative defenses are designed, first and foremost, to advise plaintiffs of potential named
defendants from which they may be able to obtain recovery and, secondarily, to
put plaintiffs on notice generally of the contours of the defendants case at
trial. No violence is done to either of those objectives by permitting
a defendant to assert a nonparty affirmative defense reasonably promptly after receiving notice
that a named party defendant has been dismissed from the lawsuit.
Id. at 915. The Supreme Court then held that the trial court
had committed reversible error in granting summary judgment to the plaintiff on Owens
Cornings nonparty affirmative defense with respect to at least one nonparty. Id.
The same code provision, the same reasoning, and facts even more favorable to
the defendant are present in the instant case. To begin with, Osterloo
had originally named Mr. Wallar as a nonparty in one of his affirmative
defenses. Charles then added Mr. Wallar as a defendant, forcing Osterloo to
amend his answer because, by definition, Mr. Wallar could not be considered a
nonparty. So Charles was apprised of a potential defendant from whom he
could seek recovery. Moreover, Charles learned of the general contours of Osterloos
casenamely, the spreading of blame to Charless father, among others. Thus,
the underlying purpose of the Comparative Fault Act was satisfied. See id.
In light of Cobb, we conclude that the trial court abused its discretion
in denying Osterloo the opportunity to add Mr. Wallar as a nonparty.
Shortly after Mr. Wallar filed his motion for summary judgmentjust fifteen days afterwardsOsterloo
filed a motion to add Mr. Wallar as a nonparty in the event
of Mr. Wallars dismissal. In doing so, Osterloo acted with the reasonable
promptness needed to satisfy I.C. § 34-4-33-10(c). Therefore, we find that the
trial court abused its discretion
See footnote and reverse the trial courts order denying Osterloos
motion to amend his complaint to add Mr. Wallar as a nonparty.
Judgment affirmed in part, reversed in part, and remanded for further proceedings not
inconsistent with this opinion.
BROOK, J., and BARNES, J., concur.
Footnote: Oral argument was held on October 4, 2001, at
Culver Academies. We thank Professor Matthew Gerber for organizing the event and
the staff, faculty, and students of Culver Military Academy and Culver Girls Academy
for their hospitality. We also commend counsels oral argument in this cause.
Footnote: Rita Parsons, who was Charless guardian ad litem, originally instituted
the action against Osterloo. On December 1, 2000, Parsons withdrew as guardian
ad litem and the trial court substituted Tina M. Wallar as Charless next
Footnote: This rule provides in part that:
A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is
one to which no responsive pleading is permitted, and the action has not
been placed upon the trial calendar, he may so amend it at any
time within thirty  days after it is served. Otherwise a party
may amend his pleading only by leave of court or by written consent
of the adverse party; and leave shall be given when justice so requires.
Footnote: This court ultimately affirmed the entry of summary judgment in
Niblock Excavatings favor.
Wallar v. Osterloo, No. 20A03-9902-CV-68, slip op. (Ind. Ct.
App. Oct. 20, 1999).
We note that both parties cited
Ind. Code § 9-4-1-57,
which had been repealed and recodified as amended in 1991 at I.C. §
As our supreme court noted, it would be within the
trial courts discretion, as a matter of case management, to establish an orderly
procedure in any given case for the potential dismissal of named party defendants
and assertion of nonparty affirmative defenses with respect to those entities.
754 N.E.2d at 915 n.14.