# City of South Bend v. Dollahan

> Indiana Court of Appeals · December 15, 2009 · 918 N.E.2d 343

URL: https://www.frixlaw.com/law-library/cases/9712383

## Case

- **Full name:** CITY OF SOUTH BEND, Appellant, v. Charles DOLLAHAN, Appellee
- **Court:** Indiana Court of Appeals
- **Decided:** December 15, 2009
- **Citations:** 918 N.E.2d 343; 2009 Ind. App. LEXIS 2595; 2009 WL 4824728
- **Precedential status:** Published
- **Opinion:** Dissent by Robb
- **Judges:** Darden, Mathias, Robb
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712383

## How later opinions describe it (automated extraction)

- observing that “the critical inquiry” is not whether the defense could have been raised earlier but whether defendant’s delay in doing so prejudiced the plaintiff
- observing that Trial Rule 8(C) “provides that a party seeking to raise an affirmative defense must specifically plead said defense in its responsive pleading”
- observing that Rule 8(C) “provides that a party seeking to raise an affirmative defense must specifically plead said offense in its responsive pleading”

## Opinion text

ROBB, Judge,
dissenting.
The majority concludes the evidence supports the trial court's conclusion that the City "knew or should have known that placing heavy mechanical equipment on the sidewalk, given the sidewalk's history of instability, would create an unreasonable risk of harm to Dollahan." Op. at 353. I respectfully dissent.
John May, City engineer, testified in his deposition that steel beams had been placed directly under the sidewalk every six feet and the space between the beams had been backfilled and compacted before the sidewalk was poured. The purpose of the beams was reinforcement; use of the beams is not common and would not have been necessary if the subgrade was sufficient. Once the sidewalk collapsed, it was clear the sand between the beams had washed away and although the concrete sitting atop the beams could still "support a substantial amount of weight," it could not support "something unforeseen that was really heavy." Appellant's App. at 30. However, May had no reason to believe there was any noticeable sign of missing subgrade under the sidewalk prior to its collapse.
Given this evidence, I come to a conclusion opposite that of the trial court and the majority. The City knew there had previously been a void under the sidewalk and took steps to reinforce the sidewalk. There is no evidence suggesting the steel beams and backfill were an insufficient means of reinforcement. There is no evidence suggesting the City knew when it issued this permit the sidewalk was no longer adequately reinforced. In short, I believe the evidence shows the City corrected the defect in the sidewalk by placement of the steel beams and did not know and had no reason to know the defect had recurred. See Louisville Cement Co. v. Mumaw, 448 N.E.2d 1219, 1221 (Ind.Ct.App.1983) ("The owner ... of premises who discovers the existence of a latent or concealed defect in the property which is *355 not likely to be discovered by an invitee may at his option, either correct the condition, or warn the invitee of the latent defect's existence. The owner discharges his duty to the invitee if he follows either course."), disapproved on other grounds, Bagley v. Insight Commc'ns Co., L.P., 658 N.E.2d 584, 588 (Ind.1995). I would hold the trial court's judgment is not supported by the evidence and reverse.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712383. Public record. Not legal advice.