holding that issue of whether death was proximately caused by intervenihg and superseding cause was not appropriately resolved by summary judgment
How later courts described this case
- holding that issue of whether death was proximately caused by intervenihg and superseding cause was not appropriately resolved by summary judgment
- outlining the elements of a "joint venture" and noting that "at least one jurist . . . has advocated the abandonment of the doctrine of imputed negligence in view of his state's adoption of comparative fault"
- “A negligent act or omission is the proximate cause of an injury if the injury is a natural and probable consequence which, in light of the circumstances, should reasonably have been foreseen or anticipated, regardless of whether the earlier negligence concurs with other proximate causes of injury[.]”
Written by the judges who cited it.
The opinion
OPINION ON JOINT PETITION FOR CLARIFICATION AND REHEARING
ROBERTSON, J.
Appellees Public Service Company of Indiana, Inc. [PSI] and Wanda R. Schnell have petitioned this court for clarification and rehearing of our written opinion designated for publication, McKinney v. PSI and Schnell (1992), Ind.App., 597 N.E.2d 1001 , in which we reversed the summary judgment entered in favor of PSI and Schnell in the wrongful death action brought by Beverly McKinney, as the Ad-ministratrix of the Estate of Hugh L. McKinney [McKinney]. PSI and Schnell assert that McKinney failed to timely file a praecipe in the trial court below and failed to file a record of proceedings and an appellant's brief in our court. Thus, PSI and Schnell argue, McKinney may not benefit from the relief granted on appeal and may not ultimately be awarded a judgment against PSI and Schnell. Instead, PSI and Schnell argue that, upon remand, they should be considered non-parties within the meaning of the Indiana Comparative Fault Act, IND.CODE 34-4-88-1 et seq. In oth er words, although fault may be allocated to PSI and Schnell, no judgment may be entered against them.
Indiana Appellate Rule 2(B) provides that all parties of record in the trial court shall be parties on appeal. Parties who fail to perfect an appeal in their own right are inactive parties on appeal. Marshall v. Russell R. Ewin, Inc. (1972), 152 Ind.App. 171 , 282 N.E.2d 841 , trans. denied.
Since parties to the action in the trial court are parties to the appeal by operation of A.R. 2(B), the failure to name all parties in the caption does not deprive the court of appeals of jurisdiction over all parties to the appeal. State ex rel. Murray v. Estate of Heithecker (1975), 165 Ind.App. 613 , 333 N.E.2d 308 . Even though the State's brief expressly stated that the Governor was not a party to the appeal, A.R. 2(B) operates of its own force to make all parties in the trial court parties on appeal whether such parties participate actively or not. State v. Nixon (1979), 270 Ind. 192 , 384 N.E.2d 152 .
Clearly, McKinney is a party to this appeal under A.R. 2(B) notwithstanding her failure to perfect an appeal in her own right. McKinney's inactive status in this appeal does not deprive this court of jurisdiction or diminish our ability to render relief to any party on appeal. Therefore, McKinney has forfeited no rights by failing to perfect an appeal in her own right and PSI and Schnell are not to be considered non-parties upon remand.
Petition for clarification granted: petition for rehearing denied.
BAKER, J. AND HOFFMAN, J. CONCUR.