Curl v. Bethlehem Steel Corp., 3-177A3

• Decision Date: 25 June 1979
• Docket Number: No. 3-177A3,3-177A3
• Parties: Francis M. CURL, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 709

390 N.E.2d 709

181 Ind.App. 132

Francis M. CURL, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee.

No. 3-177A3.

Court of Appeals of Indiana, Third District.

June 25, 1979.

David P. Stanton, Gary, for plaintiff-appellant.

Charles T. Clifford, Clifford, Houran, Hiller & Sullivan, Valparaiso, for defendant-appellee.

HOFFMAN, Judge.

Francis M. Curl filed suit against Bethlehem Steel Corporation to recover for personal injuries he sustained while working on the grounds of Bethlehem's plant in Portage, Indiana. After discovery, Bethlehem's motion for summary judgment was granted, and this appeal followed.

Curl argues that the court below erred by finding that Bethlehem owed him no duty to exercise reasonable care for his safety for the following reasons:

(1) that Bethlehem retained sufficient control of Universal's work so as to render it vicariously liable for the negligence of Universal under the doctrine of Respondent superior ;

(2) that even if Universal was indeed an independent contractor, Bethlehem should be held liable under an exception to the general rule of a contractee's nonliability; and

(3) that, independent of any rule imposing vicarious liability, Bethlehem owed a duty directly to him as a business invitee.

The record discloses that Curl was an employee of Universal Power Piping, Inc., a piping contractor which Bethlehem had hired to do work on a boiler system at Bethlehem's plant. On the day of the accident, Curl was assisting several fellow workers in their attempt to bring sections of pipe into the building where the boiler was being constructed. Because the pipe had to be dragged into the building onto a floor which was eight inches below ground level, a large amount of sand, gravel and slag had accumulated just inside the doorway over a period of three weeks. When Curl stepped over one section of pipe in order to push it into the building, he lost his footing in the accumulated debris and fell, violently twisting and breaking his leg.

Curl concedes that, in general, the employer of an independent contractor is not liable for the torts of that contractor (here, Universal's negligence in allowing the debris to accumulate). See: Hale v. Peabody Coal Company (1976), Ind.App., 343 N.E.2d 316, at 320-321; Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 106 N.E. 365. However, he maintains that Bethlehem exercised sufficient control over Universal so as to create a master-servant relationship, a relationship which renders the general rule inapplicable. In support of his argument, Curl draws this Court's attention to a number of provisions contained in the contract between Bethlehem and Universal which reserved to Bethlehem the right to change plans or specifications for the work, the right to require that a sufficient work force be employed, the right to approve or reject subcontracts, the right to regulate working hours and the right to regulate a number of other facets of the work. Yet none of these numerous contract terms gave to Bethlehem the right to control the actual method used by Universal to complete the work of installing the boiler pipe. Absent such control, no master-servant relationship is created, for the control vested in the contractee must be of a greater degree than that which is usually reserved to all those who employ the labors of others. Cummings v. Hoosier Marine Properties, Inc. (1977), Ind.App., 363 N.E.2d 1266, at 1272. Consequently, the court below correctly concluded that, as a matter of law, Universal was an independent contractor, not a servant, and that Bethlehem could therefore not be liable for Universal's torts.

As a second theory upon which Bethlehem could be held liable,...