                                                                 Feb 03 2015, 9:07 am




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Mary Stuart White                                          R. Steven Johnson
Stanley L. White                                           Sacopulos, Johnson & Sacopulos
White & White, LLC                                         Terre Haute, Indiana
Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Nick Hunckler,                                             February 3, 2015

Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           84A01-1405-CT-217
        v.                                                 Appeal from the Vigo Superior
                                                           Court.
                                                           The Honorable Michael J. Lewis,
Air Sorce-1, Inc., Timothy                                 Judge.
Miller and Kelly A. Brannen,                               Cause No. 84D06-1209-CT-8684
Appellees-Defendants




Baker, Judge.




Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015              Page 1 of 11
[1]   Nick Hunckler appeals the trial court’s grant of summary judgment in favor of

      appellees Timothy Miller and Air Sorce-1, Inc., (Air Sorce-1) regarding his

      personal injury claim. Finding that material issues of fact exist, thereby

      precluding summary judgment, we reverse and remand for proceedings

      consistent with this opinion.


                                                      Facts     1




[2]   At the time the action arose, Miller was the president and only employee of Air

      Sorce-1, an incorporated heating and air conditioning business located in Terre

      Haute. At some point before October 20, 2010, Miller sold a new furnace to

      Kelly Brannen.2 Prior to that sale, Miller visited Brannen’s home to inspect the

      basement, where the new furnace would be installed.


[3]   Miller delivered a new furnace to Brannen’s home on October 20, 2010. At

      that time, Hunckler was living with Brannen. He was home when the furnace

      was delivered. Miller arrived with a friend who had a bad back and intended to

      move the furnace himself. Miller was planning to slide the furnace down the

      basement stairs without help, a procedure he had done many times. Miller




      1
       We heard oral argument on December 16, 2014, in the courtroom of the Indiana Court of Appeals in
      Indianapolis. We thank counsel for their informative and illustrative oral advocacy.


      2
        Brannen was a defendant to Hunckler’s personal injury action. She filed a separate motion for summary
      judgment, which was granted. Hunckler does not appeal the grant of summary judgment in favor of
      Brannen.



      Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015                    Page 2 of 11
      asked Hunckler if he would help him move the furnace down to the basement. 3

      At the time of the delivery, Brannen was upstairs in the dining room using her

      computer. She did not witness the two men attempt to move the furnace into

      the basement.


[4]   The two men prepared to slide the furnace down the stairs, entering through the

      laundry room. Miller went down the stairs first, backwards, supporting the

      bottom of the furnace. Hunckler waited at the top of the stairs in the laundry

      room, planning to lift the furnace to help carry it down the stairs. He initially

      grabbed the top sides of the furnace, but felt he needed a better grip on the

      furnace before continuing down the stairs. The top of the furnace was open,

      with four edges of sheet metal. When Hunckler moved his hand to better grip

      the furnace at its top edges, he thought it was being pulled away from him as

      though Miller had taken a step down the stairs. Hunckler then fell into the

      furnace and his hands came into contact with the metal edges. It was

      approximately ten seconds from the time that Hunckler placed his hands on the

      furnace that he was injured. The two men did not even move the furnace one

      step down the stairs.


[5]   At this point, Brannen heard the commotion, and Hunckler and Miller came

      into the dining room. Brannen observed that Hunckler was bleeding from his




      3
        At oral argument, both parties stipulated that Miller had asked Hunkler to help him move the furnace down
      the stairs.

      Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015                     Page 3 of 11
      hands. Brannen drove Hunckler to the hospital; Miller accompanied them and

      assisted Hunckler with his bleeding hands.


[6]   As a result of this incident, Hunckler sustained serious injuries to the webbing

      on his hands between his thumbs and palms. His left hand was more seriously

      injured; it has required four surgeries as well as physical therapy to treat his left

      palm. The movement and use of his left hand remains impaired.


[7]   On September 10, 2012, Hunckler filed a personal injury action alleging

      negligence against Miller and Air Sorce-1. On October 4, 2012, Miller and Air

      Sorce-1 filed their answer and named Brannen as a liable non-party. On

      October 15, 2012, Hunckler filed an amended complaint adding Brannen as a

      defendant. Miller and Air Sorce-1 filed a motion for summary judgment on

      February 7, 2014, and Hunckler filed his response opposing the motion on

      March 5, 2012.


[8]   The trial court held a hearing on the motion for summary judgment on May 1,

      2014. The trial court entered an order summarily granting Miller and Air

      Sorce-1’s motion for summary judgment. Hunckler now appeals.


                                    Discussion and Decision
[9]   When we review the grant or denial of a summary judgment motion, we apply

      the same standard as the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5

      (Ind. 2010). Summary judgment is appropriate only where the evidence shows

      that no genuine issue of material fact exists and the moving party is entitled to

      judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and
      Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015   Page 4 of 11
       reasonable inferences drawn from those facts are construed in favor of the non-

       moving party, and all doubts concerning the existence of a material issue must

       be resolved against the non-moving party. Id. Nevertheless, the trial court’s

       grant of summary judgment “enters appellate review clothed with a

       presumption of validity,” and the appellant bears the burden of demonstrating

       that the trial court erred. Trustcorp Mortg. Co. v. Metro Mortg. Co. Inc., 867 N.E.2d

       203, 211 (Ind. Ct. App. 2007).


[10]   Hunckler argues that the trial court erred when it granted summary judgment in

       favor of Miller and Air Sorce-1. He contends that the trial court erred in

       determining that he was a “volunteer” and maintains that the trial court erred

       in applying the volunteer duty of care as stated in Thompson v. Owen, 141 Ind.

       App. 190, 218 N.E.2d 351 (Ind. Ct. App. 1966), to his negligence claim. 4 5


[11]   Hunckler argues that the trial court misapplied Thompson, because the standard

       articulated therein is only applicable in premises liability cases. Both parties

       agree that this is not a premises liability case. In Thompson, Becky Owen asked

       Thompson to help her start her father’s lawnmower as she was attempting to




       4
         The trial court’s order granting summary judgment does not state the legal authority upon which the trial
       court relied. However, as both parties assert that the trial court relied on Thompson, we will proceed under
       that assumption.


       5
        We also note that Thompson is not binding precedent, as Judge Smith dissented and Judge Hunter
       concurred only in result. At the time Thompson was decided, this Court was the Indiana Appellate Court,
       and it decided cases in panels of four. Therefore, as Thompson was a split decision, we question whether it
       was ever binding precedent. However, we will address this case so as to render our holding regarding the
       continued applicability of the volunteer doctrine.

       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015                        Page 5 of 11
       mow the lawn of a home two doors down from her own. Id. at 196, 355.

       Thompson did so, and was injured when the lawnmower jerked and ran over

       his foot; he subsequently sued Becky’s father for damages. Id. Thompson was

       aware that the lawnmower might have a faulty belt when he agreed to help. Id.

       It was determined that there was no evidence that a faulty belt contributed to

       Thompson’s injuries. Id. at 200, 357. The Thompson Court found that

       Thompson was a volunteer and held that “the rule is well established by case

       law in this state that, unless [there is] proof of wilful [sic] injury, a volunteer

       cannot recover.” Id. at 201, 358.


[12]   Hunckler argues that Thompson does not apply to him because the case at bar is

       not a premises liability case. Miller concedes that this is not a premises liability

       case, but argues that the volunteer doctrine is not limited to premises liability

       cases. In May 2001, the Supreme Court of Michigan addressed the continued

       relevance of the volunteer doctrine, and abandoned it entirely. James v. Alberts,

       626 N.W.2d 158, 161-162 (Mich. 2001). It stated that it would “return this area

       of law to traditional agency and tort principles, comfortable that they will better

       resolve the matters to which the doctrine might have applied.” Id. at 162.


[13]   We now adopt the same approach. We will continue to rely on traditional tort

       and agency principles and, to the extent it was ever applied, abandon the

       volunteer doctrine. Therefore, it follows that ordinary negligence principles

       apply in the instant case. We find that there are genuine issues of material fact

       as to duty, causation, breach, and damages.



       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015    Page 6 of 11
[14]   Moving on to the second issue before us, we address Miller’s argument that he

       is not personally liable for any damages that Hunckler might have incurred as a

       result of his negligence. Miller argues that he is not personally liable because

       Hunkler has failed to present any evidence to pierce the corporate veil. He

       maintains that Indiana law imposing liability on a shareholder or officer of a

       corporation is limited to cases of fraud or injustice.


[15]   In support of his argument, Miller cites to several Indiana cases. He first points

       us to Birt v. St. Mary Mercy Hospital of Gary, Inc., 175 Ind. App. 32, 370 N.E.2d

       379 (Ind. Ct. App. 1977). In Birt, this Court affirmed a grant of summary

       judgment in favor of non-treating physicians on Birt’s malpractice claim. Id. at

       43, 385. The trial court in Birt found that the individual non-treating physicians

       had not been involved in Birt’s treatment or present when the malpractice

       occurred. Id. at 34, 380. This Court held that no vicarious liability arose solely

       because the physicians were associated under the Indiana Medical Professional

       Corporation Act. Id. at 43, 385. Likewise, in the second case Miller cites to,

       Wauchop v. Domino’s Pizza Inc., 832 F.Supp. 1572, (N.D. Ind. 1993), the district

       court held that, under Indiana law, the CEO could not be held personally liable

       in connection with an automobile accident caused by an employee. Miller

       points us to the district court’s holding that “it is well settled that a corporate

       stockholder, director or officer is not personally liable for the torts of the

       corporation or any of its agents merely because of his or her office or holdings;

       some additional connection with the tort is required.” Id. at 1575.




       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015   Page 7 of 11
[16]   It is clear that the above cases do not apply to the facts in the case at bar. Both

       of those cases involve a situation in which one person commits a tort and the

       plaintiff seeks to hold another person–an officer, shareholder, or associated

       member of a corporation– personally liable for that tort. These are not the facts

       before us. Hunckler does not attempt to hold Miller vicariously liable due to his

       role as president of Air Sorce-1. Rather, he seeks to hold Miller personally

       liable for the direct role he may have played when Hunckler was injured while

       moving the furnace down the stairs. In essence, Hunckler is arguing that the

       “additional connection with the tort” the district court found missing in

       Wauchop is present in these circumstances. 832 F.Supp. at 1575.


[17]   Our Supreme Court has provided guidance for us in such a situation as this. In

       Greg Allen Construction Co. v. Estelle, 798 N.E.2d 171, 175 (Ind. 2003), our

       Supreme Court determined that the president of a construction company, who

       performed much of the renovation work on the Estelles’ home, was not

       personally liable for the negligent work. This was because the Estelles had

       entered into a contract with the construction company, and “without a contract,

       the Estelles would have no other claim for any structure negligently or

       otherwise constructed, and they do not assert any harm to their persons, no

       harm to any other property and any invasion of any other protectible interest.”

       Id. at 173-74. However, our Supreme Court also explained:

               To be sure, Allen could be individually liable to the Estelles if he
               negligently burned their house down while working with a blowtorch
               whether this work was on the Estelles house under a contract with
               them, or the project was a neighbor’s house and had no contractual

       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015     Page 8 of 11
               relationship to the Estelles. The reason is that this negligence goes
               beyond failure to perform up to contractual standards, and constitutes
               a tort even if there were no contractual relationship between the
               Estelles and either Allen or his corporation.


       Id. at 175.


[18]   In the instant case, Hunckler had no contract with Miller. His claim is for

       personal injuries he sustained as a result of Miller’s alleged negligence. We

       agree with Hunckler that this situation is the very type of circumstance that our

       Supreme Court contemplated in Greg Allen Construction Co. when describing the

       possible scenarios in which a tort committed by a corporate officer or

       shareholder might result in personal liability.6 Therefore, any grant of summary

       judgment that determined Miller was not liable by virtue of his position as an

       officer of a corporation would be erroneous.


[19]   The judgment of the trial court is reversed and remanded for proceedings

       consistent with this opinion.


       Kirsch, J., concurs, and Robb, J., concurs in result with opinion.




       6
        Miller also argues that public policy concerns justify limiting the personal liability of
       corporate officers to those cases in which acts of fraud or injustice are committed. We
       disagree. Holding corporate officers who commit torts that result in personal injury liable for
       such torts will encourage corporate officers to ensure the safety of others.



       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015            Page 9 of 11
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Nick Hunckler,
       Appellant- Plaintiff,                                      Court of Appeals Cause No.
                                                                  84A01-1405-CT-217
               v.

       Air Sorce – 1, Inc., Timothy
       Miller and Kelly A. Brannen,
       Appellees-Defendants




       Robb, Judge, concurring in result.

[20]   I respectfully concur in result, believing, as the majority does, that there are

       genuine issues of material fact which preclude judgment for Miller as a matter

       of law.


[21]   I, however, find it unnecessary to discuss Thompson v. Owen at all, let alone

       “abandon” the volunteer doctrine it espoused. First, as the majority notes,

       Thompson may not even be binding precedent, as the majority in that case

       agreed only on the result, not the analysis.


[22]   Second, the situation decided by Thompson is not the situation we have here.

       Although the parties agreed at oral argument that Miller asked Hunckler if he

       would help move the furnace rather than Hunckler offering to assist, whether or

       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015              Page 10 of 11
       not Hunckler was a “volunteer” is a factual issue that would need to be resolved

       before we could even know if Thompson might apply. Is a person a “volunteer”

       only if he offers assistance first, or can he also be a “volunteer” if he agrees to

       assist when he is under no obligation to do so? Does it matter who has asked

       for assistance; i.e. is a person more or less a “volunteer” if he assists a neighbor

       versus a business enterprise? Moreover, Hunckler has not asserted a premises

       liability claim as in Thompson; he has asserted a negligence claim to which

       regular tort principles would apply.


[23]   And finally, I do not believe it is up to us to determine that this state no longer

       recognizes the volunteer doctrine, especially in a case in which the doctrine

       might not even apply.


[24]   With respect to the remainder of the opinion, however, I am in agreement with

       my colleagues, and I therefore concur in the result.




       Court of Appeals of Indiana | Opinion 84A01-1405-CT-217 | February 3, 2015   Page 11 of 11
