Carie v. PSI Energy, Inc.

• Decision Date: 23 April 1998
• Docket Number: No. 83A01-9707-CV-229,83A01-9707-CV-229
• Parties: Harold CARIE and Al Harper, Appellants-Plaintiffs, v. PSI ENERGY, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 729

694 N.E.2d 729

Harold CARIE and Al Harper, Appellants-Plaintiffs, v. PSI ENERGY, INC., Appellee-Defendant.

No. 83A01-9707-CV-229.

Court of Appeals of Indiana.

April 23, 1998.

Rehearing Denied June 1, 1998.

Stephen L. Williams, Mann Law Firm, Terre Haute, Paul B. Ledford, Vincennes, for Appellants-Plaintiffs.

William W. Drummy, John C. Wall, Wilkinson Goeller Modesitt Wilkinson & Drummy, Terre Haute, Eric M. Cavanaugh, Cinergy Services, Inc., Plainfield, for Appellee-Defendant.

OPINION

KIRSCH, Judge.

In this consolidated appeal, Harold Carie and Al Harper challenge the trial court's grant of summary judgment in favor of PSI Energy, Inc. Carie and Harper were employees of Blount, Inc., an independent contractor PSI hired to perform maintenance work at PSI's Cayuga Generating Station. They were injured while performing maintenance work on a piece of PSI's equipment known as an exhauster. Carie and Harper raise several issues for our review, the following of which are dispositive of this appeal:

I. Whether PSI's relationship with Blount was one of contractee/independent contractor so as to render the general rule that a contractee is not liable for the negligence of its independent contractor applicable to PSI.

II. Whether Blount contracted with PSI to perform intrinsically dangerous work so as to subject PSI to liability under one of the exceptions to the general rule.

III. Whether the particular project which Blount employees were performing at the time of Carie and Harper's injuries carried with it the probability of injury unless due precaution was taken so as to subject PSI to liability under another one of the exceptions to the general rule.

We reverse.

FACTS AND PROCEDURAL HISTORY

On August 8, 1989, PSI entered into a contract with Blount for maintenance services at PSI's generating stations. The contract provided that Blount "shall have the obligation to provide a safe working environment for its employees and [Blount] shall maintain its own safety standards. [Blount] shall ensure that its employees follow safe work practices." Record at 30. The contract also required Blount to comply with "all applicable laws, ordinances, rules and regulations, including provisions of the Occupational Safety and Health Act[,]" and to "abide by any and all rules PSI may have in effect or hereafter put into effect at the site of the Work pertaining to ... the handling of Equipment ¹...." Record at 30.

The Cayuga Generating Station generates electricity by means of pulverized coal. Once the coal is pulverized, it is moved into exhausters. An exhauster is a massive fan-like apparatus which contains eight blades, resembling a steamboat's paddle wheel. The exhausters distribute the coal to the boilers which generate electricity.

At one time, PSI performed its own maintenance on the exhausters. During this time, PSI developed a fixture to make the exhauster maintenance more efficient. This fixture was the means for removing the 5,200-pound covers of the exhausters so that maintenance could be performed. The removal process involved bolting the fixture to the cover and detaching the cover from the exhauster by securing the fixture, with the attached cover, to a forklift. The forklift would then be operated to remove the cover from the exhauster. Because the fixture is not self-supporting, it would be placed in a position allowing for it to be tied off to an overhead structure. Until the tying off could be accomplished, the forklift was the only support for the fixture and attached cover.

PSI eventually began to employ contractors to perform the maintenance work and, in August of 1989, awarded the work to Blount. Timothy Weiss was a foreman for Blount and was in charge of the maintenance at the Cayuga Generating Station in September of 1991. Prior to PSI's awarding the work to Blount, Weiss had performed work at PSI, including removing the exhauster covers. A PSI employee told Weiss how to perform the cover removal procedure. Supplemental Record at 469. Weiss had performed the procedure several times and had experience in removing the cover from each one of the twelve exhausters. Weiss knew, and informed his maintenance crew who was working on the exhausters, that the fixture with the exhauster cover attached to it was not self-supporting. Supplemental Record at 433-34.

On September 5, 1991, Carie and Harper were a part of Weiss's crew performing maintenance work on Exhauster 1-A. The crew began the procedure of removing the cover from the exhauster. The fixture and the attached cover were secured to a forklift owned by PSI and operated by Kenneth Richmond, another Blount employee. Richmond backed the forklift up about four or five feet when it stalled.

The malfunctioning of a PSI forklift was typically reported to a PSI supervisor. Accordingly, when the forklift with which Weiss's crew was working stalled, Weiss told his people "to leave it alone, don't touch it, I'll go get--I'll go tell somebody to fix it," and Weiss left the scene. Supplemental Record at 440. PSI mechanics came to the scene and examined the forklift. The mechanics told Richmond what the problem was and instructed him on how to operate the forklift to avoid stalling. Richmond restarted the forklift and backed it up another eight to ten feet. He then set the fixture with the cover attached on the floor. He left the forks inserted into the fixture until another Blount employee approached in another forklift and could not pass by Richmond's forklift. Richmond had not been told, and did not otherwise know, that the fixture was not self-supporting. ² Richmond then backed up his forklift, removing the forks from the fixture, leaving it free-standing. The fixture, with the attached exhauster cover, fell on Carie and Harper resulting in their serious injuries.

Carie and Harper filed separate complaints against PSI, each alleging that his injuries were the result of PSI's carelessness and negligence. The two cases were consolidated in the trial court. PSI filed a motion for summary judgment, contending that under the general rule of contractee nonliability, it owed no duty to the employees of an independent contractor and that it was not liable under any of the rule's exceptions. The trial court granted PSI's motion on the ground that PSI did not owe a duty to Carie and Harper. Carie and Harper appeal.

DISCUSSION AND DECISION

The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind.Ct.App.1995). When reviewing a decision on a summary judgment motion, this court applies the same standard as does the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Thus, we are not bound by the findings and conclusions entered by the trial court when ruling on a motion for summary judgment as we base our decision upon the Trial Rule 56(C) materials properly presented to the trial court. Campbell v. Spade, 617 N.E.2d 580, 582-83 (Ind.Ct.App.1993). Summary judgment shall be granted if the designated evidentiary matter demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Wickey, 642 N.E.2d at 265. In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.

Carie and Harper's claim against PSI sounds in negligence. The tort of negligence consists of the following elements: 1) a duty owed to the plaintiff by the defendant; 2) a breach of that duty by the defendant; and 3) injury to the plaintiff proximately caused by that breach. Id. A defendant may obtain summary judgment in a negligence action by demonstrating that the undisputed material facts negate at least one element of the plaintiff's claim or that the claim is barred by an affirmative defense. Goldsberry v. Grubbs, 672 N.E.2d 475, 477 (Ind.Ct.App.1996).

The element at issue here is duty. ³ Generally, a contractee is not liable for the negligence of an independent contractor. Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584, 587 (Ind.1995); Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 597, 106 N.E. 365, 367 (1914). A duty will be imposed, however, if one of five exceptions to the general rule of contractee nonliability exists. Those exceptions are:

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

(2) where the principal is by law or contract charged with performing 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; and

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

Bagley, 658 N.E.2d at 586. These exceptions create non-delegable duties on the part of one hiring an independent contractor. Id. at 588.

I. Relationship between PSI and Blount

For the general rule to apply, the relationship between PSI and Blount must be that of PSI as contractee and Blount as independent contractor. If, however, Blount was acting not as an independent contractor but as PSI's employee, then the general rule and its attendant exceptions do not apply, and PSI may be held vicariously liable for Blount's negligence.

The terms of the written contract between PSI and Blount designate Blount as an independent contractor. Record at 28 (Section 202.1). Nonetheless, Carie and Harper contend that this contractee/independent contractor relationship was destroyed because PSI retained control over the instrumentalities and procedures Blount used in the cover removal process. According to Carie and Harper, the destruction of this relationship renders the general rule of contractee nonliability inapplicable.

The essence of Carie and Harper's argument in this regard is that PSI, by its conduct,...