Perry v. Northern Indiana Public Service Co., 3-580A146

• Decision Date: 25 March 1982
• Docket Number: No. 3-580A146,3-580A146
• Citation: 433 N.E.2d 44
• Parties: James PERRY and Wilda Perry, Appellants-Plaintiffs v. NORTHERN INDIANA PUBLIC SERVICE COMPANY and Babcock and Wilcox Company, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 44

433 N.E.2d 44

James PERRY and Wilda Perry, Appellants-Plaintiffs v. NORTHERN INDIANA PUBLIC SERVICE COMPANY and Babcock and Wilcox Company, Appellees-Defendants.

No. 3-580A146.

Court of Appeals of Indiana, Fourth District.

March 25, 1982.

George Kohl, Marvin Lopata, Raskosky & Kohl, Hammond, for appellants-plaintiffs.

David C. Jensen, Paul A. Rake, Eichhorn, Eichhorn & Link, Hammond, for appellees-defendants.

CONOVER, Judge.

Plaintiffs-appellants James and Wilda Perry appeal a summary judgment granted to defendant-appellee Northern Indiana Public Service Company (NIPSCO). The Perrys claim there are genuine issues of material fact concerning NIPSCO's liability for James' injury, sustained when he fell while working on new construction at a NIPSCO plant.

We affirm in part and reverse in part.

SCOPE OF REVIEW

The purpose underlying the summary judgment procedure is to terminate those causes of action which have no factual disputes and thus may be determined as a matter of law. ¹ However, the summary When reviewing a grant of summary judgment, we must determine whether there is any genuine issue of material fact, and whether the law was correctly applied. Hale v. Peabody Coal Company, (1976) 168 Ind.App. 336, 343 N.E.2d 316. The moving party has the burden of establishing that no material facts are in genuine issue. All doubts and inferences are resolved in favor of the non-moving party. Smith v. P. & B. Corp., (1979) Ind.App., 386 N.E.2d 1232. Accordingly, the products of discovery are liberally construed in the non-moving party's favor. Podgorny v. Great Central Insurance Co., (1974) 160 Ind.App. 244, 311 N.E.2d 640.

judgment procedure must be applied with caution, so that a party's right to a fair determination of a genuine issue is not jeopardized. Bassett v. Glock, (1977) Ind.App., 368 N.E.2d 18.

A fact is material if its resolution is decisive of either the action or a relevant secondary issue. Lee v. Weston, (1980) Ind.App., 402 N.E.2d 23. The factual issue is genuine if it cannot be foreclosed by reference to undisputed facts, but rather requires a trier of fact to resolve the opposing parties' differing versions. Stuteville v. Downing, (1979) Ind.App., 391 N.E.2d 629.

In a word, we are to reverse if there is any genuine issue for the trier of fact to determine.

ISSUES

The one issue raised in this appeal is whether the trial court erred in finding as a matter of law that NIPSCO owed James Perry no duty to exercise reasonable care relative to job safety.

FACTS

On October 8, 1971, NIPSCO entered into a written agreement with Babcock and Wilcox Co. (B&W), one of several contractors engaged by NIPSCO for the erection of certain mechanical equipment at its Michigan City generating station. This contract, numbered W-2497C with its attachments was 102 pages in length. Under it, B&W, acting as one of NIPSCO's subcontractors, was to erect certain mechanical equipment as part of the construction of Unit 12, a new generating unit, at that site.

On April 12, 1972, James Perry (James), one of B&W's welders, was ordered by his foreman to weld metal clips onto a fan housing approximately 20 feet above the ground. He was to do so without using a scaffold or other safety apparatus. When James complained of the danger, his foreman told him that scaffolding could be made for the job but it would take some time to get around to it, he could either do the job or go home.

James then complained about the danger involved to his shop steward and later, to a NIPSCO man in a white hat standing near the place James was to do the welding. He received no help from his shop steward. The NIPSCO man told him, "I have no control over what you do for your contractor, you know." Fully aware of the danger, but in fear of losing his job if he did not perform, James attempted to do the welding as ordered. He fell and was severely injured.

After the Perrys filed suit, the trial court granted NIPSCO's Motion for Summary Judgment, from which the Perrys appeal.

DISCUSSION AND DECISION

DUTY OF CARE

Generally, one is not liable for the acts or negligence of another unless the relation of master and servant exists between them. Thus, where a party exercising independent employment causes injury to another, the person employing that party will not be liable in damages for injury resulting from such party's wrongful acts or omissions. Allison v. Huber, Hunt and Nichols, Inc., (1977) 173 Ind.App. 41, 362 "It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work, except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is let. An independent contractor is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer, except as to the product or result of the work. When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor, and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer does not render the person contracted with to do the work a servant."

N.E.2d 193. In Prest-O-Lite Co. v. Skeel, (1914) 182 Ind. 593, 106 N.E. 365, 367, our Supreme Court said:

In the years since Prest-O-Lite, this Court has recognized five exceptions to this rule, as follows: ²

"(1) where the contract requires the performance of work intrinsically dangerous;

(2) where a party is by law or contract charged with the specific duty;

(3) where the act will create a nuisance;

(4) where the act to be performed will probably cause injury to others unless due precaution is taken to avoid harm;

(5) where the act to be performed is illegal."

Denneau v. Indiana & Michigan Elec. Co., (1971) 150 Ind.App. 615, 277 N.E.2d 8, 12. These exceptions may not be delegated to an independent contractor. Cummings v. Hoosier Marine Properties, Inc., (1977) 173 Ind.App. 372, 363 N.E.2d 1266. The Perrys raise two of the five recognized exceptions:

(1) the contract required the performance of work that was intrinsically dangerous, and

(2) NIPSCO was charged by contract with the specific duty to provide for safety at the job site.

The Perrys claim the evidence presented to the Court, taken as true, raises a genuine issue of fact requiring jury resolution on each of these issues.

INTRINSICALLY DANGEROUS WORK

As to the Perrys' first issue, the NIPSCO-B&W contract did not require the performance of work that was inherently or intrinsically dangerous. An instrumentality or undertaking is not intrinsically dangerous if the "risk of injury involved in its use can be eliminated or significantly reduced by taking proper precautions." Hale v. Peabody Coal Co., (1976) 168 Ind.App. 336, 343 N.E.2d 316, 322; Cummings, supra, 363 N.E.2d 1275; Jones v. Indianapolis Power & Light Co., (1973) 158 Ind.App. 676, 304 N.E.2d 337, 344. Use of proper scaffolding or other safety equipment would have substantially reduced or eliminated James' risk of injury. There was nothing inherently dangerous in the welding job James was ordered to do by his supervisor.

SPECIFIC CONTRACTUAL DUTY

The Perrys argue extensively that a duty was imposed upon NIPSCO to supervise compliance with safety procedures at the job site by paragraphs 17 and 19 of Exhibit A to its contract with B&W. Paragraph 17 provided the contractor was to keep its tools, equipment and material, etc., "in such condition that the work can be carried on with safety to employees of Purchaser (NIPSCO) and Contractor (B&W)," and that Contractor would maintain a competent superintendent who was "acceptable to Purchaser and may not be changed except by the request of Purchaser" unless he Paragraph 19 reads as follows:

was unsatisfactory to Contractor and ceased to be in Contractor's employment.

"19. PURCHASER'S RULES AND REGULATIONS: Contractor shall abide by any and all rules Purchaser may have in effect or hereafter put into effect at the site of the WORK pertaining to workmen, safety, use of cameras, security procedures or requirements, lighting of fires, and to the handling of equipment, materials or any other part of the WORK. If in Purchaser's judgment it is desirable, Contractor shall at Purchaser's request remove any employee from the WORK."

We must do more than read those two paragraphs of the contract, however. As Buchanan, P.J., observed:

"The court in Prest-O-Lite also offered the following warning against an overly restrictive contractual analysis in the determination of what form of controls the owner-contractee retained:

'The difference between an independent contractor and a mere servant is not to be determined solely by the pretention (sic) of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole,-by its spirit and essence,-and not by the phraseology of the single sentence or paragraph.' (182 Ind. at 598, 106 N.E. at 367)."

Jones v. Indianapolis Power & Light Co., 158 Ind.App. 676, 304 N.E.2d 337, 343. Following the mandate of Prest-O-Lite, we have extensively reviewed the 102 pages of contract W-2497C and its attachments to determine its spirit and essence. While it is true the contract reserves certain inspection and testing rights to NIPSCO while construction is in progress, and makes NIPSCO's consulting engineers the final authority for determining controversies which arise regarding the work in addition to the provisions of paragraphs 17 and 19 of Exhibit A, suffice it to say this document is nothing other than a contract between the "owner" (albeit "general contractor") of the Unit 12 project and B&W, its independent contractor.

Exhibit A's first paragraph containing definitions says:

"Contractor (B&W) is an independent...