Jones v. Indianapolis Power & Light Co.

• Decision Date: 13 December 1973
• Docket Number: No. 2--672A26,2--672A26
• Citation: 304 N.E.2d 337,158 Ind.App. 676
• Parties: Olive H. JONES, Administratrix of the Estate of Dareld James Jones, Deceased, Appellant (Plaintiff below), v. INDIANAPOLIS POWER & LIGHT CO., Appellee (Defendant below), Combustion Engineering, Inc., Appellee (Third-Party Defendant below).
• Court: Indiana Appellate Court

Page 337

304 N.E.2d 337

158 Ind.App. 676

Olive H. JONES, Administratrix of the Estate of Dareld James Jones, Deceased, Appellant (Plaintiff below), v. INDIANAPOLIS POWER & LIGHT CO., Appellee (Defendant below) Combustion Engineering, Inc., Appellee (Third-Party Defendant below).

No. 2--672A26.

Court of Appeals of Indiana, Second District.

Dec. 13, 1973.

Rehearing Denied Feb. 21, 1974.

Paul G. Smith, Smith, Pearce & Barr, Noblesville, Gleason, Woods & Johnson, Indianapolis, for appellant

Erle A. Kightlinger, Howard J. DeTrude, Jr., John T. Lorenz, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Plaintiff-Appellant Olive Jones (Jones) appeals from a judgment on the evidence We affirm.

entered by the trial court in a Wrongful Death action brought by her against Defendant-Appellee Indianapolis Power and Light Company (Ipalco), claiming that sufficient evidence was presented from which the jury could have found Ipalco negligent in causing the death of her husband (decedent), who was employed by a contractor retained by Ipalco to supply and install steam generating equipment.

FACTS

The evidence most favorable to Jones' case is:

In March of 1968 Ipalco completed construction of Unit I of a power plant on land it owned in Petersburg, Indiana. Thereafter, construction began on Unit II, and on March 25, 1968 the accident occurred which resulted in the death of Jones' husband, Dareld James Jones (Decedent).

In connection with this construction project, Ipalco retained the services of Stone and Webster Engineering Corporation to prepare plans and specifications and act as supervisors of construction. As between Ipalco and Stone and Webster, Ipalco retained the power to award contracts and direct the progress of construction.

Ipalco contracted directly with several contractors to erect Unit II, including Combustion Engineering, Inc. (Combustion), Decedent's employer. Combustion was employed to supply and install steam generating equipment (boiler and ash hopper). Two contracts were executed between Ipalco and Combustion--one a 'material only' contract by the terms of which Combustion was to furnish boiler equipment, and the second contract provided for the installation of the boiler equipment.

These two contracts and purchase orders issued thereunder contained provisions that:

All work to be done under the general supervision of Ipalco's engineers (Stone & Webster).

All work to comply with local ordinances, rules, regulations and statutes of the State of Indiana which were incorporated by reference.

All Combustion and Stone & Webster's employees to comply with all regulations of Ipalco regarding admission to the property.

Work to be performed under the direction and to the satisfaction of Ipalco and/or its engineer (Stone & Webster).

Combustion to conduct its operation so as to provide maximum safety for all employees and comply with all safety regulations of applicable laws as prescribed by Ipalco or its engineer, and promptly correct any unsafe conditions when directed to do so by the engineer.

Work coordination and scheduling to be subject to check by Stone & Webster.

Combustion to furnish and maintain all labor and special tools necessary for complete installation, including hoisting and hauling equipment.

To assist in installation of the generating equipment, Combustion installed a man and materials hoist on the exterior of the plant under construction. This hoist, or electrically operated elevator, was owned by Combustion and was inspected and maintained and used exclusively by its employees.

Decedent was employed by Combustion to operate this hoist.

On the morning of March 25, 1968, Decedent commenced operation of the hoist at about 8:00 A.M. and about 9:00 A.M., after he had taken a load of men approximately 100 feet above the ground, the hoist stuck. Because the voice communication system was not operative, Decedent signaled by the use of gestures to Combustion ground-level employees that the hoist would not move. They then manipulated master override controls at the base of the hoist which caused the hoist car to descend about six feet where it came to rest upon Decedent subsequently died from injuries thus received on April 18, 1968.

Decedent, crushing him between the top of the car and the floor landing. Apparently he was trapped, with part of his body inside the hoist car and part on the floor landing when the car descended.

It was determined that the hoist stuck because a limit control switch on top of the hoist car became clogged with ice and snow; when cleaned away the hoist operated properly.

No warning devices were installed in the hoist car nor was a Combustion-owned public address system functional.

All persons involved in this episode were Combustion employees. The protective fencing around the base of the hoist carried the sign 'C. E. Employees Only.'

Ipalco's sole employee on the job site, the field engineer, was not present when Decedent sustained his injuries nor had he ever inspected or examined the hoist for safety although he did have some knowledge of prior malfunction of the hoist due to the frozen limit control switch.

Jones, as the Administratrix of this Estate, brought this Civil Action under the Indiana Wrongful Death Statute against Ipalco alleging its negligence both directly and by imputation from Combustion.

The case was tried before a Jury and at the conclusion of Plaintiff's evidence, Ipalco moved for judgment on the evidence which motion the trial court granted. This appeal followed.

ISSUES

The issues raised by the parties may be consolidated thusly:

ISSUE ONE. Was there any evidence that Ipalco retained sufficient control over the manner and means of the performance of work under the contracts so as to render Ipalco liable for Combustion's negligence?

ISSUE TWO. Was there any evidence which could sustain Ipalco's liability under any exception to the rule exempting it from liability for the death or injury to a servant of an independent contractor?

As to ISSUE ONE, Jones contends that under the contracts between Ipalco and Combustion, Ipalco retained sufficient control over Combustion's work to render it liable for Combustion's negligence.

In response, Ipalco contends that the contract did not give Ipalco the right to control the manner and means of Combustion's performance of the work. Because of this absence of control, Ipalco argues, Combustion was an independent contractor and not a mere servant of Ipalco, and therefore its negligence (if any) may not be imputed to Ipalco.

As to ISSUE TWO, Jones maintains that, even if Combustion's role was that of an independent contractor, the evidence would warrant allowing the case to go to the jury because of certain exceptions to the general rule of nonliability of an employer of an independent contractor for the latter's torts. These exceptions impose liability upon the employer (1) if the contract requires the performance of work intrinsically dangerous or (2) if the employer is charged by law or contract with the specific duty in question or (3) if the act to be performed will probably cause injuries to others unless due precaution is taken to avoid harm.

Under exception two Jones claims Ipalco was obligated under a specifically legally imposed duty to provide Decedent a safe place to work which duty was breached. Also, the Dangerous Occupation Act ¹ and certain administrative regulations ² obligated Ipalco to insure that the hoist equipment conformed to the specifications set Jones raises other questions in her brief which are either unsubstantial or have been waived pursuant to Rule AP. 8.3(A).

out therein. And last, that the contract imposed a specific duty upon Ipalco to require precautions to be taken to assure the safety of the hoist.

DECISION

As consideration of the issues raised by this appeal necessarily involves the propriety of entering a judgment on the evidence in favor of a Defendant (Ipalco) at the close of Plaintiff's (Jones) case, a statement of the appellate rule governing our review of the trial court's action is appropriate:

"On appeal we will consider only the evidence most favorable to the party against whom the Motion for Directed Verdict was made and all reasonable inferences from such evidence. (Citations omitted.)'

'The quantum of evidence necessary for a plaintiff to avoid a directed verdict at the close of his evidence has been determined by our Supreme Court to be any evidence or legitimate inference therefrom tending to support at least one of the plaintiff's allegations. Specifically, our Supreme Court held in Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N.E.2d 315, 318, that:

"It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a peremptory instruction * * *" (Emphasis supplied.)

Mamula v. Ford Motor Company, (1971), Ind.App., 275 N.E.2d 849 at 851.

See also: Wallace v. Doan (1973), Ind.App., 292 N.E.2d 820; Hammond v. Allegretti (1972), Ind.App., 288 N.E.2d 197; Adkins v. Elvard (1973), Ind.App., 294 N.E.2d 160.

So, we may only reverse if after considering the evidence most favorable to Jones, there is some evidence in support of the claimed negligence of Ipalco.

ISSUE ONE.

CONCLUSION--It is our opinion that there was no evidence from which a jury could find that Ipalco retained sufficient control over Combustion's work to render Ipalco vicariously liable for Combustion's negligence (if any) on the basis of respondeat superior.

Jones grapples with the acknowledged principle that a person employing an independent contractor is usually not liable for the torts of that contractor. As such, the independent contractor's liability usually is not transferable to the employer. Gibbs v....