Carie v. PSI Energy, Inc.

• Decision Date: 03 September 1999
• Docket Number: No. 83S01-9811-CV-695.,83S01-9811-CV-695.
• Citation: 715 N.E.2d 853
• Parties: Harold CARIE and Al Harper, Appellants (Plaintiffs Below), v. PSI ENERGY, INC., Appellee (Defendant Below).
• Court: Indiana Supreme Court

715 N.E.2d 853

Harold CARIE and Al Harper, Appellants (Plaintiffs Below), v. PSI ENERGY, INC., Appellee (Defendant Below).

No. 83S01-9811-CV-695.

Supreme Court of Indiana.

September 3, 1999.

Stephen L. Williams, Terre Haute, Indiana, Paul B. Ledford, Vincennes, Indiana, Attorneys for Appellants. William W. Drummy, John Christopher Wall, Terre Haute, Indiana, Eric M. Cavanaugh, Plainfield, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

Harold Carie and Al Harper, employees of an independent contractor, each sued PSI Energy, Inc., for injuries sustained while performing maintenance on PSI's equipment. The trial court granted summary judgment in favor of PSI. The Court of Appeals reversed, holding that PSI might be liable under the "due precaution" exception. Carie v. PSI Energy, Inc., 694 N.E.2d 729 (Ind.Ct. App.1998). We now grant transfer and affirm the trial court.

Facts and Procedural Posture

The relevant facts in this case are undisputed. PSI's Cayuga Generating Station produces electricity using pulverized coal. After the coal is pulverized, it is moved into exhausters. An exhauster is a fan-like apparatus containing eight blades and resembling a paddle wheel. The exhausters distribute the coal to the boilers which generate the electricity.

At one time, PSI performed its own maintenance at the Cayuga plant. PSI employees developed a fixture to facilitate maintenance on the exhausters. The fixture enabled PSI employees to remove the 5,200-pound front cover of an exhauster. The removal process involved bolting the fixture to the cover, unbolting the cover from the exhauster, securing a forklift to the fixture, and backing the forklift away from the exhauster with the fixture and the cover. As the fixture was not designed to be self-supporting, the forklift would then generally move the cover and fixture away from the exhauster to be tied off to an overhead beam. Until the fixture and cover were tied off to another structure, the forklift was required to support them.

In 1979, PSI began to employ independent contractors to do mill maintenance. In August of 1989, PSI contracted with Blount, Inc. for maintenance at the Cayuga plant.¹ Timothy Weiss was the Blount boilermaker foreman in charge of the Cayuga station maintenance. From the time Blount hired him in 1986, Weiss had performed maintenance work at several PSI plants, including repairs on exhausters. A PSI employee taught Weiss how to remove the exhauster covers using the jig fixture and a forklift. By September of 1991, Weiss had performed the removal procedure on exhauster covers several times.

On September 5, 1991, Weiss and his crew were repairing one of the exhausters at the Cayuga plant. Plaintiffs Carie and Harper were part of that crew. Weiss testified that he knew, and informed his crew members, that the fixture and exhauster cover were not self-supporting. (Supp. R. at 433-34.) Beginning the repairs, a Blount crew member named Kenneth Richmond used a forklift owned by PSI to remove the exhauster cover and attached fixture. Richmond later testified that he did not know the fixture and exhauster cover were not self-supporting. (R. at 639.) Richmond backed the forklift up four or five feet when it stalled. As was customary, when the forklift stalled, Weiss left the area to get a PSI employee to fix the machine. Before leaving, Weiss told his crew members "to leave it alone, don't touch it, I'll go get—I'll go tell somebody to fix it." (Supp. R. at 440.)

While Weiss was away from the area, PSI mechanics came to the scene and examined the forklift. The mechanics instructed Richmond how to operate the forklift without stalling it. Richmond then restarted the forklift and backed up another eight to ten feet. He lowered the fixture and cover to the floor, leaving the hooks of the forklift inserted in the fixture. While Richmond was waiting for Weiss to return, another forklift approached the area and needed to pass. Richmond's forklift, the cover, and the fixture were blocking his way. Richmond removed the forklift hooks and backed up to let the other forklift pass. Left unsupported, the fixture and the attached exhauster cover fell, seriously injuring Carie and Harper.

Carie and Harper filed separate complaints against PSI alleging negligence. The trial court consolidated the two cases. PSI moved for summary judgment, which the trial court granted based on the general rule that a person who hires an independent contractor is not liable for the independent contractor's negligence. Carie and Harper appealed. Applying an exception to the general rule of non-liability, the Court of Appeals reversed, with Judge Friedlander dissenting, Carie, 694 N.E.2d at 737-38. In their petition to transfer, PSI presents one dispositive issue: whether the "due precaution" exception to the general rule of non-liability applies to their case.

Summary Judgment Standard of Review

A grant of summary judgment requires that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Ayres v. Indian Heights Volunteer Fire Dep't., Inc., 493 N.E.2d 1229 (Ind. 1986). On appeal from summary judgment, the reviewing court faces the same issues that were before the trial court, and analyzes them in the same way. Ambassador Fin. Services, Inc. v. Indiana Nat'l Bank, 605 N.E.2d 746, (Ind.1992). "We view the pleadings, depositions, answers to interrogatories and affidavits in the light most favorable to the non-moving party." Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind.1991). Although the nonmovant has the burden of demonstrating the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied his day in court. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664 (Ind.1997).

Analysis

The question is whether PSI owed Blount's employees a duty of care. "[T]he long-standing general rule has been that a principal is not liable for the negligence of an independent contractor." Bagley v. Insight Communications Co., 658 N.E.2d 584, 586 (Ind.1995) (citing Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 597, 106 N.E. 365, 367 (1914); City of Logansport v. Dick, 70 Ind. 65, 78 (1880)). Indiana courts, however, have recognized five exceptions to the general rule. Bagley, 658 N.E.2d at 586. The 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. Id. In Bagley, we explained the rationale for these exceptions like this:

The duties associated with Indiana's five exceptions are considered non-delegable, and an employer will be liable for the negligence of the contractor, because the responsibilities are deemed "so important to the community" that the employer should not be permitted to transfer these duties to another.... The exceptions encourage the employer of the contractor to participate in the control of work covered by the exceptions in order to minimize the risk of resulting injuries.

Bagley, 658 N.E.2d at 587-88 (citations omitted). The exceptions reflect the notion that, in certain circumstances, "the employer is in the best position to identify, minimize, and administer the risks involved in the contractor's activities." 7 Am.Jur. Proof of Facts 3d § 1 at 483 (1990).

The parties agree that the relationship between PSI and Blount was one of contractee and independent contractor, respectively. Thus, unless one of the exceptions applies, the general rule would dictate that PSI did not owe Blount or its employees a duty of care.

The two exceptions potentially applicable include where the contract requires the performance of intrinsically dangerous work and where the act to be performed will probably cause injury to others unless due precaution is taken. The Court of Appeals determined that the exception for intrinsically dangerous work was inapplicable here. That conclusion is not challenged on transfer.² Our inquiry thus focusses solely on the applicability of exception four: where the act to be performed will probably cause injury to others unless due precaution is taken.

Exception Four: Probability of Injury Absent Due Precaution

As the Court of Appeals majority noted, the due precaution exception³ makes an employer "liable for the negligence of an independent contractor `where the act to be performed will probably cause injury to others unless due precaution is taken.'" Carie, 694 N.E.2d at 735 (quoting Bagley, 658 N.E.2d at 586).⁴ This Court explained the exception in Bagley:

The essence of this exception is the foreseeability of the peculiar risk involved in the work and of the need for special precautions. The exception applies where, at the time of the making of the contract, a principal should have foreseen that the performance of the work or the conditions under which it was to be performed would, absent precautionary measures, probably cause injury.

Application of this fourth exception to the plaintiff's claim thus requires an examination of whether, at the time [a party] was employed as an independent contractor, there existed a peculiar risk which was reasonably foreseeable and which recognizably called for precautionary measures.

658 N.E.2d at 588 (citations omitted); see also Cummings v. Hoosier Marine Properties, Inc., 173 Ind.App. 372, 387, 363 N.E.2d 1266, 1275 (1977)

("an action would fail absent a showing by the plaintiff that in view of the nature of the work and the conditions under which it was to be executed, the defendant should have foreseen that the actual catastrophe which occurred was likely to happen"). Rather than focussing on the permutations of "peculiar,"⁵ we...