Eclectic Investment, LLC. v. Patterson

The distinction between active and passive negligence is but one factor to consider when determining whether or not indemnification among co-defendants is proper.

Jackson County (“County”) appealed the trial court’s decision that County was not entitled to indemnity for litigation expenses from co-defendant McAllister. Eclectic hired McAllister to perform some excavation on their property to expand a parking lot. County inspected the work and issued a permit. A rainstorm caused dirt to wash off a slope created by the excavation onto the parking lot and into a building, causing damage to Eclectic’s property. Eclectic brought a negligence action against McAllister, the County, and two neighbors, and sought damages for property damage resulting from the rainstorm. The jury found Eclectic’s contributory negligence exceeded 50 percent, so the court entered judgment in favor of the defendants. County filed a cross-claim against McAllister for indemnity, which was severed from the other lawsuit. County argued that because the trial court found McAllister to be “minorly active” and County only “barely passive” in terms of negligence, that County was entitled to indemnification. The Court disagreed and noted that the distinction between active and passive was only one factor that the trial court considered. The Court found that the evidence of County’s independent actions in issuing the permit provided a sufficient basis to conclude that indemnity was not proper. Affirmed.