
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
Steve Carter
Attorney General of Indiana

John H. Lewis
Office of the Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                           No.  50S03-0403-CV-118

Julee Schlosser, as Administratrix of the
ESTATE OF JOCELYN H. SCHLOSSER, DECEASED;
JORDAN SCHLOSSER, INDIVIDUALLY AND ON
BEHALF OF MADYSEN WAGONER, A MINOR; AND
JOSHUA WAGONER, ON BEHALF OF MADYSEN
WAGONER, A MINOR,
                                              APPELLANTS (PLAINTIFFS BELOW),

                                     V.

Rock Industries, Inc.,
                                              Appellee (Defendant below).

                             ___________________

State of Indiana,
                                             Appellant (Plaintiff below),

                                     v.

Rock Industries, Inc.,
                                             Appellee (Defendant below).
                      _________________________________

        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

Rucker, Justice.

      Based on  the  “acceptance  rule”  the  trial  court  granted  summary
judgment in an action  arising  out  of  an  automobile  collision.   In  an
opinion handed down today we abandoned the rule.   See  Peters  v.  Forster,
___ N.E.2d ___,  No.  42S01-0301-CV-24  (Ind.  2004).   We  therefore  grant
transfer and reverse the judgment of the trial court.


                        Facts and Procedural History

      On January 7, 1999, the Indiana Department of  Transportation  (INDOT)
contracted with Rock Industries, Inc., to remove snow from the  intersection
of U.S. Highway 31 and Old Michigan  Road  south  of  Plymouth  in  Marshall
County, Indiana.  A Rock Industries employee noted a pile  of  snow  in  the
median of the highway that he estimated as  between  three  and  eight  feet
high.  Using a front-end loader, the employee cleared the  intersection  and
reduced the snow pile to the ground on the west side of  a  yield  sign  but
added snow on the east side of the  sign.  According  to  the  employee,  he
cleared the pile in such a way that “everybody could see.”

      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 Schlosser’s 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”).[1]  According to Plaintiffs  the
Defendants’ snow removal efforts created the  large  pile  of  snow  on  the
median, reducing visibility, and  thereby  causing  their  injuries.   After
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.”   Appellant’s  Br.  at  35.   In
affirming the trial court’s 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.

                                 Discussion

      Generally, Indiana has followed the rule that “contractors do not  owe
a duty of care to third parties after the  owner  has  accepted  the  work.”
Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 170  (Ind.  1996);  Citizens
Gas & Coke Util. v. Am. Econ. Ins. Co., 486 N.E.2d 998,  1000  (Ind.  1985).
This  rule  is  commonly  referred  to  as  the  “acceptance  rule”  or  the
“completed  and  accepted  rule.”   In  an  opinion  handed  down  today  we
abandoned the acceptance rule in favor of what has  been  described  as  the
“modern rule” or the “foreseeability doctrine.”  In  doing  so  we  embraced
the trend reflected in the Restatement (Second) of Torts which provides:

           One who on behalf of the possessor of land erects a structure or
           creates any other condition thereon is subject to  liability  to
           others upon or outside of the land for physical harm  caused  to
           them by the dangerous character of the  structure  or  condition
           after his work has been accepted by  the  possessor,  under  the
           same rules as those determining the  liability  of  one  who  as
           manufacturer or independent contractor makes a chattel  for  the
           use of others.


Peters, ___ N.E.2d at ___, slip op. at 8 (quoting  Restatement  (Second)  of
Torts § 385  (1965)).   In  our  view  this  approach  “is  consistent  with
traditional  principles  of  negligence  upon  which  Indiana’s  scheme   of
negligence law is based.”  Id.

      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
Appellee’s 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.

                                 Conclusion

      We reverse the judgment of the trial court and remand this  cause  for
further proceedings.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

-----------------------
[1] By stipulation, Marshall County was dismissed in July 2001, and thus  is
not a party to this  appeal.   Also  by  stipulation,  Plaintiffs  dismissed
their claims against the State of Indiana on February 12, 2003.   The  State
of Indiana remains a party to this  appeal  because  it  alleged  the  trial
court improperly denied it the right to amend its answer to assert a  cross-
claim against Rock Industries for breach of contract.   However,  the  Court
of Appeals affirmed the judgment of the trial court on this issue,  and  the
State did not seek transfer.  We therefore summarily affirm that portion  of
the Court of Appeals’ opinion addressing the claims raised by the  State  of
Indiana.

