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April 19, 2006

Changes to Indiana Court Rules

INDIANA CASELAW AND COURT RULE REVIEW

Stephen E. Arthur

Changes to Indiana Court Rules:

On July 1, 2005, the Indiana Supreme Court amended a number of its Court rules including Trial Rules 3.1(H) and 56(C); Jury Rules 2 and 4; and Appellate Rules 12, 34 and 44. In addition, Administrative Rule 15, which regulates electronic filing and electronic service pilot projects, was substantially rewritten. These rule changes will go into effect on January 1, 2006.

Trial Rule 3.1 (H) will provide: “In the event an attorney, different from any specifically identified in a previously filed appearance, is temporarily representing a party in a proceeding before the court, through filing a pleading with the court or in any other capacity including discovery, the new attorney shall file an appearance form. The appearance form shall contain the information set out in [Trial Rule 3.1(A)(1) and (2)], shall provide the name, attorney number and all contact information of the attorney who has file the prior appearance in the case, the new attorney’s temporary status, and the date the temporary appearance shall end. The court shall not be required to act on the temporary appearance unless the new temporary attorney has not appeared at the request of a party’s previously identified counsel.”

Trial Rule 56(C) will provide: “…. The Court may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the court shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response.”

Jury Rule 2 will delete the requirement that jury pools must be selected from county voter registration lists. The amended rule will require the Jury Administrator to “…. compile the jury pool annually by selecting names from lists approved by the Supreme Court. In compiling the jury pool, the jury administrator shall avoid duplication of names….”

Jury Rule 4 will provide: “A judge may authorize the jury administrator to use technological programs for receiving responses to juror qualification forms or to supplement information provided to jurors in the notice of selection and summons. The judge may authorize automated telephone services or web-based programs which include appropriate verification, such as juror identification numbers, PIN numbers, and passwords. The judge must ensure that jurors who are unable or unwilling to use these technological programs are able to complete the proper forms and receive the above-required information by contacting the jury administrator.”

Appellate Rule 12(A) will provide that when a party requests a copy of the Clerk Record, or a portion thereof, the trial court clerk shall provide those copies within thirty (30) days “subject to the payment of any usual and customary copying charges.”

Appellate Rule 34(C) will change the time for filing a response to a motion from ten (10) to fifteen (15) days after the motion has been served.

Appellate Rule 44(D) and (E) will provide ten (10) page and 4,200 word limits respectively for briefs filed by an intervenor or amicus curiae on transfer or rehearing.


Standard of Proof under Trial Rule 56

In Indiana, a party moving for summary judgment may not simply attack the sufficiency of plaintiff’s evidence supporting a claim. Rather, the moving party must designate sufficient evidence to affirmatively demonstrate the absence of a genuine issue of material fact as to a determinative issue. Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d 118 (Ind. 1994). As noted in the recent case of Dennis v. Greyhound Lines, Inc., 831 N.E.2d 171, 173 (Ind.Ct.App. 2005), the Jarboe standard departs from federal rule 56. Dennis stated: “In federal practice, the party seeking summary judgment is not required to negate an opponent’s claim; instead, summary judgment must be granted when the nonmovant has failed to establish an essential element of its claim.…[Under Indiana law] ‘Merely alleging that the plaintiff has failed to produce evidence on each element … is insufficient to entitle the defendant to summary judgment.’” quoting Jarboe, 644 N.E.2d at 123. Dennis emphasized: “Our task is not to judge whether the [nonmoving party] have proven each element, but instead to determine whether [the moving party] has adequately met its burden of proving a lack of any genuine issue of material fact in the evidence designated to the trial court.”


Class Action Standing:

Illegal aliens have standing to maintain a class-action for declaratory and injunctive relief challenging BMV identification requirements for obtaining Indiana driver licenses and identification cards. Villegas v. Silverman, 832 N.E.2d 598 (Ind.Ct.App. 2005) affirmed that each named plaintiff must have standing to assert a claim in a class action.





Landowner’s Duty to Independent Contractor

The principle that a property owner generally owes no duty to provide a safe work place to the employees of an independent contractor working on the owner’s land was affirmed in Pelak v. Indiana Industrial Services, Inc., 831 N.E.2d 765 (Ind.Ct.App. 2005). In that action, the employee of an independent contract (“Pelaks”) was injured when he fell through a gap in a catwalk while trouble-shooting a conveyor system’s electronic controls. The trial court granted summary judgment against the Pelaks. In affirming the trial court’s judgment, the court discussed two important exceptions to this general rule.

First, a landowner may be liable for injuries to an invitee if he (1) knows or should know of a danger and should realize it involves an unreasonable risk; (2) should expect that an invitee on his property will not realize the danger or will not protect himself against that risk; and (3) fails to exercise reasonable care to protect the invitee from danger.

Second, a landowner may be liable for the safety of an independent contractor, or that contractor’s employees, if the owner retains control over any part of the work performed by the contractor on his land. In order for this exception to apply the property owner must exercise control over the job site, or the manner or means by which the contractor performs his work. As noted in Comment c to the Restatement (Second) of Torts, Sec. 414: “It is not enough that the owner merely retain a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.”


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Stephen Arthur (sarthur@h-mlaw.com) is a partner with Harrison & Moberly, LLP, in Indianapolis, concentrating his practice on federal and state complex commercial litigation. Mr. Arthur is the author of the 2 volume Civil Practice and Procedure component of West Publishing’s Indiana Practice series. Opinions expressed in this column are those of the author.

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