304 N.E.2d 337 (Ind.App. 2 Dist. 1973), 2--672A26, Jones v. Indianapolis Power & Light Co.

Docket Nº2--672A26.
Citation304 N.E.2d 337, 158 Ind.App. 676
Party NameOlive 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).
Case DateDecember 13, 1973
CourtCourt of Appeals of Indiana

Page 337

304 N.E.2d 337 (Ind.App. 2 Dist. 1973)

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.

December 13, 1973

Rehearing Denied Feb. 21, 1974.

Page 338

[Copyrighted Material Omitted]

Page 339

[158 Ind.App. 678] 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

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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.

We affirm.

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[158 Ind.App. 679] 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 [158 Ind.App. 680] 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

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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.

Decedent subsequently died from injuries thus received on April 18, 1968.

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.

[158 Ind.App. 681] 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...

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