Opinion
24A-CT-868
12-30-2024
John Burbank, Appellant-Plaintiff v. Roy Parsons and Doris Parsons, Appellees-Defendants
ATTORNEY FOR APPELLANT Kevin B. Sciantarelli Sciantarelli Law Firm Louisville, Kentucky ATTORNEY FOR APPELLEES Marc Tawfik Church Langdon Lopp & Banet LLC New Albany, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Circuit Court The Honorable Justin B. Brown, Judge Trial Court Cause No. 22C01-1902-CT-245
ATTORNEY FOR APPELLANT Kevin B. Sciantarelli Sciantarelli Law Firm Louisville, Kentucky
ATTORNEY FOR APPELLEES Marc Tawfik Church Langdon Lopp & Banet LLC New Albany, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE.
Case Summary
[¶1] John Burbank filed a negligence action against Roy Parsons and Doris Parsons after Burbank fell down a flight of stairs at the Parsons' home. A jury found for the Parsons. Burbank appeals and claims that the trial court erred by refusing to instruct the jury regarding negligence per se. We agree with Burbank and, accordingly, reverse and remand.
Issue
[¶2] Burbank raises one issue on appeal, which we restate as whether the trial court erred by refusing to instruct the jury regarding negligence per se.
Facts
[¶3] On February 18, 2018, Burbank was working as a handyman at the Parsons' home. As part of the project he was working on, Burbank had to make several trips up and down the basement stairs to access a crawlspace. The stairs were steep and narrow, and the stairway was poorly lit. The top step was just 7.125 inches in depth, and only about half of Burbank's foot fit on the step. On one of his trips, Burbank lost his footing on the top step and fell to the bottom of the stairs. Burbank suffered serious injuries as a result of his fall.
[¶4] On February 19, 2019, Burbank filed a complaint against the Parsons and alleged claims of premises liability, standard negligence, and negligence per se.
The latter of these claims was based on an allegation that the stairs that Burbank fell down did not comply with the applicable building code.
[¶5] A jury trial was held on February 6, 2024. Burbank presented evidence that the minimum depth for stair treads allowed by the applicable building code was nine inches and that the step on which he fell did not comply with this minimum tread-depth requirement. At the conclusion of the evidence, Burbank submitted a proposed final instruction regarding negligence per se. Burbank's proposed instruction included language from Floyd County Ordinance 87-8 ("Ordinance 87-8"), the portions of the Indiana Administrative Code ("IAC") adopted by Ordinance 87-8, and the 2003 International Residential Code for One and Two Family Dwellings ("2003 Residential Code"), as adopted and modified by the IAC. Particular to this case, Ordinance 87-8 adopted and incorporated 675 IAC Section 14-4.3-31, which in turn adopted and modified Rule 311.5.3.2 of the 2003 Residential Code. Under the 2003 Residential Code, the minimum depth for stair treads was nine inches.
[¶6] The trial court refused to instruct the jury regarding negligence per se because it concluded that Ordinance 87-8 did not create a private cause of action. The jury then returned a verdict in favor of the Parsons. The trial court entered judgment on the verdict on February 13, 2024. Burbank filed a motion to correct error on March 12, 2024, which the trial court denied the next day. Burbank now appeals.
Discussion and Decision
I. Standard of Review
[¶7] Burbank claims that the trial court erred by failing to give to the jury Burbank's tendered instruction regarding negligence per se. A trial court generally has considerable discretion when instructing the jury. Ind. State Police v. Estate of Damore, 194 N.E.3d 1147, 1165 (Ind.Ct.App. 2022) (citing Humphrey v. Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020)), trans. denied. When an appellant claims that the trial court's decision to either give or refuse a proposed jury instruction was erroneous, we consider three things: (1) whether the instruction correctly stated the law; (2) whether the instruction was supported by evidence in the record; and (3) whether the substance of the instruction was covered by other instructions. Id. (citing Humphrey, 151 N.E.3d at 1207). "The first of these considerations is a legal question on which the trial court receives no deference; the other two are reviewed for an abuse of discretion." Id. (citing Humphrey, 151 N.E.3d at 1207).
II. Negligence and Negligence Per Se
A. Negligence
To prevail on a claim of negligence, a plaintiff must show: (1) a duty owed to the plaintiff by the defendant; (2) a breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by the defendant's breach of duty. Goodwin v. Yeakle's Sports Bar &Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Here, it is undisputed that Burbank was an invitee on the Parsons' property. Thus, the Parsons, as the premises owners, were required to "exercise reasonable care" for the protection of such an invitee. Rogers v. Martin, 63 N.E.3d 316, 322 (Ind. 2016).
B. Negligence Per Se
[¶8] At issue in the present case is the doctrine of negligence per se. Under this doctrine, the unexcused violation of a statute or ordinance constitutes negligence per se if the statute or ordinance: (1) protects the class of persons in which the plaintiff is included, and (2) protects against the type of harm that occurred as a result of the violation of the statute or ordinance. Stachowski v. Estate of Radman, 95 N.E.3d 542, 544 (Ind.Ct.App. 2018) (quoting Fort Wayne v. Parrish, 32 N.E.3d 275, 277 (Ind.Ct.App. 2015)); accord Gresser v. Reliable Exterminators, Inc., 160 N.E.3d 184, 190 (Ind.Ct.App. 2020).
For purposes of negligence per se, it makes no difference whether the plaintiff is alleged to have violated a statute or an ordinance. For over 100 years, our Supreme Court has held that "ordinances, authorized and duly enacted within the municipal power, have the same local force and effect as a statute. Where a standard of duty is fixed, and its measure defined by law, the omission of that duty is negligence per se." Prest-O-Lite Co. v. Skeel, 106 N.E. 365, 368 (Ind. 1914) (citations omitted).
[¶9] We explained in Stachowski that "the doctrine of negligence per se doesn't concern the duty element of a negligence action; rather, the doctrine assumes the existence of a common-law duty of reasonable care[.]" 95 N.E.3d at 544. Under negligence per se, the standard of conduct required under the preexisting common-law duty is set by the statute or ordinance. Id. Thus, an unexcused violation of the statute or ordinance "serves to satisfy the breach element of a negligence action." Id. "In other words, a finding of negligence per se merely represents a judicial acceptance of 'the legislative judgment that acts in violation of the statute [or ordinance] constitute unreasonable conduct.'" Id. (quoting Cook v. Whitsell-Sherman, 796 N.E.2d 271, 276 (Ind. 2003)).
[¶10] The trial court here refused Burbank's negligence per se instruction because it found that Ordinance 87-8 did not create a private cause of action. Burbank argues that the trial court confused his claim of negligence per se with a claim stating a private cause of action arising from a statute. We agree.
[¶11] As we explained in Gresser, "if a defendant had an existing common-law duty of reasonable care, and if a plaintiff argues the defendant's violation of a statute or ordinance proves the breach of that existing common-law duty, then the plaintiff has been said to be raising a negligence-per-se claim." 160 N.E.3d at 190 (citing Stachowski, 95 N.E.3d at 543). If, however, the defendant had no common-law duty, and the plaintiff claims that a statute or ordinance created a duty that is enforceable by the plaintiff against the defendant, "then the plaintiff is said to be raising a private-right-of-action claim." Id. (footnote omitted) (citing Stachowski, 95 N.E.3d at 543).
[¶12] These two types of claims are often confused or conflated. Id. (citing Stachowski, 95 N.E.3d at 543). We explained in Gresser, however, that a tort action based on a statute that creates a duty and gives rise to a private right of action should not be called a claim of negligence per se. Id. Accordingly, as we did in Gresser, when we use the term "negligence per se," we mean "the doctrine of demonstrating breach of duty by evidence a defendant violated a statute [or ordinance]." Id. The other sort of claim is better referred to as a statutory-duty claim. Id.
[¶13] Here, Burbank did not claim that Ordinance 87-8, and the regulations it incorporates, created a private cause of action, nor did he claim that the ordinance created the duty the Parsons owed to him. Instead, Burbank claimed that the Parsons owed him a common-law duty of reasonable care and that the violation of Ordinance 87-8, if unexcused, constituted the breach of this common-law duty. Thus, Burbank asserted negligence per se, not a statutory-duty claim, and there was no need for the ordinance to create a private cause of action. The trial court's reason for refusing Burbank's instruction was, therefore, incorrect as a matter of law. But this does not require us to reverse, as we may affirm the trial court on any basis supported by the record. See Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 312 (Ind.Ct.App. 2015) (citing J.M. v. Review Bd. of Ind. Dep't of Workforce Dev., 975 N.E.2d 1283, 1289 (Ind. 2012)). We, therefore, must still address the question of whether the trial court properly refused to give Burbank's proposed instruction on negligence per se.
III. The unexcused violation of Ordinance 87-8 would support a claim of negligence per se.
[¶14] Before considering whether the trial court properly refused Burbank's proposed instruction, we first address a threshold issue: whether an unexcused violation of Ordinance 87-8 can even support a claim of negligence per se. To determine whether an unexcused violation of an ordinance can support a claim of negligence per se, we consider whether the ordinance protects the class of persons in which the plaintiff is included and protects against the type of harm that occurred as a result of the violation. See Stachowski, 95 N.E.3d at 544. This requires us to consider the text of Ordinance 87-8 and the regulations it incorporates. Like a set of Russian Matryoshka nesting dolls, Ordinance 87-8 adopts certain provisions of the IAC, which in turn adopts and modifies portions of the 2003 Residential Code. We now consider the text of these provisions.
A. Ordinance 87-8.
[¶15] Ordinance 87-8 was enacted in 1987 and sets forth the Floyd County Building Code. Section 4 of Ordinance 87-8 defines the scope of the ordinance and provides, "[t]he provisions of this code apply to the construction, alterations, repair, use, occupancy, maintenance and additions to all buildings and structures, other than fences, in the County of Floyd."
[¶16] Section 5 of Ordinance 87-8 then provides:
ADOPTION OF RULES BY REFERENCE.
a. Building rules of the Indiana Fire Prevention and Building Safety Commission as set out in the following Articles of Title 675 of the Indiana Administration [sic] Code are hereby incorporated by reference in this ordinance and shall include later amendments to those Articles as the same are published in the Indiana Register or the Indiana Administrative Code with effective dates as fixed therein:
* * * * *
(2) Article 14 - One and Two Family Dwelling Codes
(a) Council of American Building Officials One and Two Family Dwelling Code....Ordinance 87-8 § 5(a). Thus, Ordinance 87-8 adopts and incorporates 675 IAC Article 14.
B. 675 IAC Chapter 14-4.3.
[¶17] At the time relevant to this case, 675 IAC Section 14-4.3-1 provided that:
This is the version of the regulation that was in effect at the time of Burbank's fall. The entirety of 675 IAC Chapter 14-4.3 was repealed in 2019 and replaced by 675 IAC Chapter 14-4.4, which contains a similar provision adopting and incorporating the 2018 International Residential Code for One and Two Family Dwellings. The relevant portions of the 2018 International Residential Code are substantially similar to the 2003 version with regard to the minimum tread-depth requirement for stairs, which remains nine inches. See 675 IAC § 14-4.4-17.
(a) Those certain documents being titled the 2003 International Residential Code for One and Two Family Dwellings, fifth printing, and Chapter 43 of the 2006 International Residential Code for One and Two Family Dwellings . . . are hereby adopted
by reference as if fully set out in this rule save and except those revisions made in this rule.
* * * * *
(d) The purpose of this code is to provide minimum requirements for safety and to safeguard property, public safety, and general welfare through affordability, by regulating and controlling the design, construction, installation, and quality of materials of residential structures as regulated by this code.675 IAC § 14-4.3-1. This section of the IAC, thus, adopts and incorporates the 2003 International Residential Code for One and Two Family Dwellings ("2003 Residential Code"), with certain modifications as stated in the IAC.
C. The 2003 Residential Code
[¶18] Rule 311.5.3.2 of the 2003 Residential Code states that: "The minimum [stair] tread depth shall be 10 inches (254 mm). The tread depth shall be measured horizontally between the vertical planes of the foremost projection of adjacent treads and at a right angle to the tread's leading edge ...." 675 IAC Section 14-4.3-31 modified this by providing: "In the first and fourth sentences of SECTION R311.5.3.2, delete "10 inches (354 mm)" and substitute "9 inches (229 mm)."
[¶19] Accordingly, the minimum tread-depth requirement for stairs in one and two family dwellings-as set forth in the 2003 Residential Code as adopted by 675 IAC Article 14-was, at the time relevant to this case, nine inches. And this minimum tread-depth requirement was adopted and incorporated by Floyd County in Ordinance 87-8.
[¶20] After considering these provisions, we conclude that violation of the minimum tread-depth requirement incorporated by Ordinance 87-8 would support a finding of negligence per se. That is, Ordinance 87-8 protects the class of persons in which Burbank is included-those who use stairs in residences-and protects against the type of harm that occurred as a result of the violation- falling because stair treads are too shallow. The obvious purpose of the treaddepth requirement is to make stairs in residences safe for those traversing them, including invitees such as Burbank.
[¶21] The Parsons, however, argue that Ordinance 87-8 is inapplicable to their home because it was built decades before the enactment of that ordinance. The Parsons, however, cite no authority to support their argument that Ordinance 87-8 does not apply to their home. See Ind. Appellate Rule 46(A)(8)(a). In fact, Ordinance 87-8, by its explicit terms, applies not only to the construction, alteration, and repair of all buildings and structures in Floyd County, but also to the "use" and "occupancy" of all buildings and structures in the county. Ordinance 87-8 § 4. The Parsons do not refer to, and our review of the ordinance has not revealed, any "grandfather" clause that would exempt the Parsons' home from the requirements of the building code as adopted by Ordinance 87-8. We, therefore, conclude that Ordinance 87-8, which incorporates the nine-inch minimum tread-depth requirement of 675 Indiana Administrative Code § 14-4.3-31, applies to the basement stairs in the Parsons' home at the time of Burbank's fall.
We also note that Burbank's expert witness testified that when the Parsons built their home in 1976, the then-applicable 1969 version of the building code also contained a minimum tread-depth requirement of nine inches. Tr. Vol. II p. 231, Vol. III p. 21. Indeed, Burbank's expert witness testified that he was unaware of any building code that had a minimum tread-depth requirement of less than nine inches. Thus, for the entire existence of the Parsons' home, the minimum tread-depth requirement was nine inches, and applying Ordinance 87-8 to the Parsons does not impose any burden on the Parsons that did not already exist.
[¶22] Consequently, we conclude that a violation of Ordinance 87-8 would support a finding of negligence per se if the violation were not excused and the violation was the proximate cause of the injuries claimed. See French v. Bristol Myers Co., 574 N.E.2d 940, 943 (Ind.Ct.App. 1991) (holding that violation of city ordinance stating that property owners could not allow items on their property to obstruct the view of drivers or pedestrians within twenty-five feet of an intersection supported a claim of negligence per se); Ray v. Goldsmith, 400 N.E.2d 176, 178 (Ind.Ct.App. 1980) (holding that violation of ordinance requiring owners of refrigerators and freezers with locking doors to disable such doors if kept in a place accessible to children supported a claim of negligence per se); see also N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1185 (Alaska 1997) (holding that violation of Uniform Building Code, as adopted by administrative code, supported a claim of negligence per se), aff'd on reh'g, 563 P.2d 256.
The Parsons argue that Ordinance 87-8 was never introduced as an exhibit and is, therefore, not part of the record on appeal. They also claim that the trial court never took judicial notice of the Ordinance. We disagree. Since the adoption of the Indiana Rules of Evidence in 1996, Evidence Rule 201(b)(4) has permitted courts to take judicial notice of "a law, which includes . . . codified ordinances of municipalities." See also Indianapolis v. Armour, 946 N.E.2d 553, 562 n.10 (Ind. 2011) (taking judicial notice of City-County ordinance); Monroe Cnty. v. Boathouse Apartments, LLC, 177 N.E.3d 1201, 1203 n.1 (Ind.Ct.App. 2021) (taking judicial notice of county ordinance), trans. denied. Here, the trial court specifically noted that it "pulled the Floyd County Ordinance from the commissioners. I had them directly send that to me, to make sure that was the accurate ordinance." Tr. Vol. IV p. 110. Although the trial court did not use the words "judicial notice," it is apparent that the court took judicial notice of the ordinance. In addition, Burbank included the language of Ordinance 87-8 in his tendered instruction, which the trial court confirmed was accurate by comparing it with the language of the ordinance. Furthermore, the relevant portions of the 2003 Residential Code were admitted as evidence and expounded on by Burbank's expert witness. See Ex. Vol. pp. 17-22; Tr. Vol. III pp. 10-12.
IV. Did the trial court properly refuse Burbank's proposed instruction?
[¶23] Having determined that an unexcused violation of Ordinance 87-8, and the regulations it adopts and incorporates, would support a claim of negligence per se, we now consider whether the trial court properly refused Burbank's proposed instruction. To determine whether a trial court erred in refusing a tendered instruction, we consider whether the instruction was: (1) a correct statement of the law; (2) supported by evidence in the record; and (3) covered by other instructions. Estate of Damore, 194 N.E.3d at 1165 (citing Humphrey, 151 N.E.3d at 1207).
A. Burbank's proposed instruction was a correct statement of the law.
[¶24] Burbank's proposed instruction on negligence per se first set forth the relevant portions of Ordinance 87-8, 675 IAC Section 14-4.3-31, and Rule 311.5.3.2 of the 2003 Residential Code. It then provided, "If you decide from the greater weight of the evidence that a person violated the above-referenced Indiana Regulations and Ordinances in the ownership, use or occupancy of a property and the violation was not excused, then you must decide that [the] person was negligent." Appellant's App. Vol. II p. 118. This instruction is a correct statement of the law of negligence per se; in fact, it tracks the language of the Model Civil Jury Instruction on negligence per se.
Because the instruction states that, if the jury finds the Parsons violated the ordinance, the jury "must" find the Parsons "negligent," it might appear at first glance to require the jury to find in Burbank's favor based solely on the unexcused violation of the ordinance, without requiring a finding of proximate cause. We must, however, consider all of the instructions as a whole. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 525 (Ind. 2012). The trial court's other instructions defined "negligence" as:
the failure to use reasonable care. A person may be negligent by acting or failing to act. A person is negligent if he or she does something a reasonably careful person would not do in the same situation or fails to do something a reasonably careful person would do in the same situation.Tr. Vol. IV p. 197. This is also a correct statement of the law. See Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 685 (Ind. 2024) (defining negligence as the failure to use reasonable care under the circumstances). And the court defined "reasonable care" as "being careful and using good judgment and common sense." Id. In other words, Burbank's proposed instruction properly stated that the violation of Ordinance 87-8, if unexcused, established the breach element of Burbank's negligence claim by failing to use reasonable care. In addition, the trial court separately instructed the jury that, "a person's conduct is legally responsible for causing injury if, one, the injury would not have occurred without the conduct; and two, the injury is a natural, probable, and foreseeable result of the conduct. This is called a responsible cause." Tr. Vol. IV p. 197. This too tracks the language of the Model Civil Jury Instruction for proximate cause, now referred to as "reasonable cause" in the instruction. See Model Civil Jury Instruction 1117 (defining "Responsible Cause (Proximate Cause)").
Indiana Model Civil Jury Instruction 1139 provides:
Violation of Statutory Duty as Negligence
When the events in this case happened [Indiana Code §___] [ordinance number and name] provided [in part] as follows: [here set out applicable portions of statute or ordinance].
If you decide from the greater weight of the evidence that a person violated [Indiana Code §___] [ordinance number and name], and that the violation was not excused, then you must decide that person was negligent.
Accordingly, we conclude that Burbank's proposed instruction correctly stated the law of negligence per se.
B. Burbank's proposed instruction was supported by evidence in the record.
[¶25] "A trial court should give a tendered instruction 'if the record, though meager, contains any facts or circumstances pertinent to the case.'" Estate of Damore, 194 N.E.3d at 1166 (quoting Humphrey, 151 N.E.3d at 1207) (other internal quotations omitted). "A trial court may refuse a jury instruction only when none of the facts in the record would support the legal theory offered in the instruction." Id. (citing Humphrey, 151 N.E.3d at 1207).
Thus, under Indiana law, the party seeking an instruction need only produce some evidence-a "scintilla"-of each element of the underlying claim or defense. There is an important symmetry here. No party-neither plaintiff nor defendant-need affirmatively prove its claim or defense before the trial court instructs the jury on the issue. The party need only point to some evidence in the record that when viewed most favorably would suffice for a reasonable juror to decide the issue in the party's favor.Id. (quoting Humphrey, 151 N.E.3d at 1207).
[¶26] Here, Burbank's expert witness, forensic engineer Herb Goff, testified that the top step of the Parsons' staircase-the step on which Burbank fell-was only 7.125 inches in depth-almost two inches narrower than the nine-inch minimum tread depth set forth in the building code. The Parsons claim that they relied on a contractor to build their home, the home was inspected, and they never had any issues with the basement stairs, nor were they aware that the stairs were out of compliance with the building code. But these are not the relevant questions. The relevant question is whether any evidence supported giving the instruction, and here, Goff's testimony satisfied this requirement. Accordingly, we conclude that Burbank's proposed instruction was supported by evidence in the record.
C. The substance of Burbank's proposed instruction was not covered by other instructions.
[¶27] Lastly, we consider whether the substance of the instruction was covered by the other instructions given to the jury. None of the other instructions referenced the applicable ordinance and regulations or told the jury that a violation of an ordinance, if unexcused, constituted negligence per se-a breach of the common law duty the Parsons owed to Burbank. We, therefore, conclude that the substance of Burbank's proposed instruction was not covered by the other instructions.
[¶28] The Parsons claim, though, that the trial court properly refused the instruction because it was confusing. We first note that the Parsons' argument on this issue lacks any citation to the record or any authority. We, therefore, consider it to be waived. See Ind. Appellate Rule 46(A)(8)(a). Moreover, we disagree with this argument on the merits. The language of the ordinance and regulations, as set forth above and included in Burbank's tendered instruction, is long. Ultimately, however, the meaning of Ordinance 87-8 and 675 IAC Section 144.3-31 is relatively straightforward-treads on stairs can be no less than nine inches in depth. We do not think this is beyond the grasp of our capable jurors.
The present case is, thus, distinguishable from that in Gresser, 160 N.E.3d 184. In that case, we held that the trial court properly refused to give the plaintiff's tendered negligence-per-se instruction because the instruction would have required additional clarification instructions and may have confused the jury. Id. at 194. In Gresser, the statutory violation involved applying certain pesticides in a manner inconsistent with the labeling on the pesticide. Here, in contrast, the ordinance violation is straightforward, i.e., did the Parsons' steps violate the nine-inch minimum tread-depth requirement imposed by Ordinance 87-8. No other clarifying instructions were necessary.
[¶29] We also reject the Parsons' claim that failing to give Burbank's tendered instruction was harmless. The jury was not instructed that an unexcused violation of Ordinance 87-8 constituted negligence per se. This deprived Burbank of one of his main theories of the Parsons' liability. The Parsons are correct that negligence per se does not mean liability per se, as "the violation of a statutory duty is not actionable negligence unless it is also the proximate cause of the injury." See 21 IND. LAW ENCYCLOPEDIA Negligence § 3 (July 2024 Update) (citing Erwin v. Roe, 928 N.E.2d 609 (Ind.Ct.App. 2010); Lindsey v. DeGroot, 898 N.E.2d 1251 (Ind.Ct.App. 2009)). But here, the jury was deprived of the opportunity to consider whether the Parsons' breach of Ordinance 87-8 proximately caused Burbank's injuries because the jury was not instructed that a violation of the ordinance could satisfy the breach prong of a negligence claim.
Conclusion
[¶30] In summary, the trial court improperly conflated Burbank's claim of negligence per se with a statutory-duty claim when it declined to give the jury Burbank's proposed instruction on negligence per se. Burbank's instruction was a correct statement of the law, was supported by evidence in the record, was not covered by other instructions, and was not improperly confusing. We, therefore, conclude that the trial court abused its discretion by refusing Burbank's instruction. And this error was not harmless, as it deprived Burbank of one of his major theories of liability. Accordingly, we reverse the trial court's judgment and remand for proceedings consistent with this opinion.
[¶31] Reversed and remanded.
May, J., and DeBoer, J., concur.