Hale v. Peabody Coal Co.

Decision Date10 March 1976
Docket NumberNo. 1--175A17,1--175A17
PartiesDarrell HALE et ux., Plaintiff-Appellant, v. PEABODY COAL COMPANY et al., Defendants-Appellees.
CourtIndiana Appellate Court

B. Michael McCormick, McCormick, Blumberg & Weber, Terre Haute, William G. Brown, Brazil, for plaintiff-appellant.

Robert S. Ratcliffe, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for defendants appellees.

ROBERTSON, Chief Judge.

The plaintiff-appellant, Hale, brings this appeal from the trial court's granting of summary judgment in favor of the defendants-appellees, Peabody and Powered.

The sole issue upon appeal is whether summary judgment was properly entered.

We affirm.

The record reveals the following facts: Peabody is engaged in coal mining in Vermillion County at a location known and designated as the Universal Mine. On October 29, 1969, Peabody contracted with Powered to construct certain coal handling facilitites at the mine including a conveyor belt system. The system was to consist of a sloping conveyor belt forty-eight inches wide encased with metal siding on all sides, running from ground level to the top of coal storage silos.

On January 9, 1970, Powered subcontracted with Langley-Morgan to do the actual erection and construction at the Universal Mine. Hale was employed by Langley-Morgan and was a member of a three-man crew that was to place and fasten metal panels to the sides of the conveyor belt housing.

On May 28, 1970, Hale, working on a scaffolding, was attaching sheet metal to enclose the conveyor belt when one of the ropes securing an end of the scaffolding came untied. Hale fell twenty-five feet to the ground suffering severe and permanent injuries.

Hale filed suit against Peabody and Powered seeking to recover for his injuries. Peabody and Powered filed a motion for summary judgment attaching thereto affidavits and a memorandum in support of their position that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. Peabody and Powered asserted that Hale was the employee of an independent contractor, Langley-Morgan, and as such there was no duty running from Peabody and Powered to Hale which could have been breached. Having heard oral argument upon the motion, the trial court found from the pleadings, affidavits and Hale's deposition that neither Peabody or Powered had any supervision or control over Hale's employment that Hale was not under the power or control of Peabody or Powered and was not subject to their orders or directions in performing his work at the time he was injured, and that neither Peabody or Powered furnished or had any control over the equipment used by Hale. The trial court concluded that there was no duty running from Peabody and Powered to Hale which could have been breached under the circumstances of this case and entered summary judgment.

Hale brings this appeal contending that summary judgment was improperly granted.

Ind. Rules of Procedure, Trial Rule 56 provides that summary judgment shall be rendered:

'. . . if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

Upon review of a grant of summary judgment, this court must determine if there is any genuine issue of material fact, and whether the law was correctly applied.

The burden is upon the moving party to establish that no material facts are in genuine issue, Tapp v. Haskins (1974), Ind.App., 310 N.E.2d 288, and any doubt as to the existence of a genuine issue of a material fact must be resolved against the moving party. McGinnis v. Public Service Co. of Indiana, Inc. (1974), Ind.App., 313 N.E.2d 708; Shaw v. S. S. Kresge Co. (1975), Ind.App., 328 N.E.2d 775. Accordingly, for purposes of determining whether to grant the motion, facts set forth in the non-moving party's affidavits are taken as true, and products of discovery are liberally construed in his favor. Podgorny v. Great Central Insurance Co. (1974), Ind.App., 311 N.E.2d 640. Finally, even if the facts are not in dispute, summary judgment is not appropriate when the information before the court reveals a good faith dispute as to the inferences to be drawn from those facts. Yerkes v. Washington Manufacturing Co., Inc. (1975), Ind.App., 326 N.E.2d 629.

Hale asserts that three issues of fact were presented in this case:

(1) Was Langley-Morgan the servant of Peabody and Powered or an independent contractor?

(2) If Langley-Morgan was an independent contractor, did the information before the trial court establish one of the exceptions to the general rule of non-liability to the servants of an independent contractor?

(3) Did Hale's injuries result from the negligence of Peabody or Powered, independent of any negligence of Langley-Morgan?

Hale first asserts that there was a genuine issue of fact as to whether the relationship between Peabody and Powered was that of master-servant. Hale argues that under the contracts, Peabody and Powered retained sufficient control over Langley-Morgan's work to render them liable for Langley-Morgan's negligence.

In response, Peabody and Powered contend that the contracts did not give them the right to control the manner and means of Langley-Morgan's performance and, thus, they argue that Langley-Morgan was an independent contractor whose negligence may not be imputed to them.

If an employer retains sufficient right to control the work, the relationship of master-servant arises to render the employer vicariously liable for the negligence of the servant under the doctrine of respondeat superior. State v. Gibbs (1975), Ind.App., 336 N.E.2d 703; Gibbs v. Miller (1972), Ind.App., 283 N.E.2d 592.

However, as a general rule, the employer of an independent contractor is not liable for the torts of that contractor. Marion Shoe Company v. Eppley (1914), 181 Ind. 219, 104 N.E. 65; Stewart v. Huff (1938), 105 Ind.App. 447, 14 N.E.2d 322; Bauer v. Plumbers' Supply Corp. of Evansville (1965), 137 Ind.App. 106, 205 N.E.2d 567.

Indiana case law has set forth the degree of control which will cause a person hired for certain work to be designated an independent contractor. As stated in the case of Prest-O-Lite Company v. Skeel (1914), 182 Ind. 593, 106 N.E. 365:

'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.' (Emphasis supplied.) 182 Ind. at 597, 106 N.E. at 367.

See also: Marion Shoe Company v. Eppley (1914), 181 Ind. 219, 104 N.E. 65.

Hales relies upon several specific provisions of the contracts between the parties in an attempt to establish that a master-servant relationship existed. However, as further stated in Prest-O-Lite Company v. Skeel, supra:

'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.' (Emphasis added.) 182 Ind. at 598, 106 N.E. at 367.

See also: Jones v. Indianapolis Power and Light Co. (1973), Ind.App., 304 N.E.2d 337.

When viewed as a whole, the contracts between Peabody and Powered and Langley-Morgan are subject to only one reasonable interpretation, that Peabody and Powered retained only a general supervisory control over what was done and not the specific means or manner of performance. Hale failed to present specific facts to show that he was under the power and control of Peabody or Powered at the time he sustained his injuries--a critical fact in the existence of a master-servant relationship. Marion Shoe Company v. Eppley, supra.

No genuine issue of fact existed as to whether a master-servant relationship existed in this case.

Hale next argues that even if Langley-Morgan was an independent contractor, an issue of fact existed as to whether Peabody and Powered are liable under certain exceptions to the general rule of nonliability of contractees for injuries to the servants of independent contractors.

The exceptions recognized by Indiana law were enumerated in Denneau v. Indiana and Michigan Electric Company (1971), 150 Ind.App. 615, 620, 277 N.E.2d 8, 12:

'There are five (5) exceptions to the general rule that a contractee is not liable to an independent contractor's servants for injuries:

(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.'

Hale argues that there was at least an issue of fact as to whether Peabody and Powered could be held liable under exceptions 1, 2 and 4.

He first asserts that Langley-Morgan's contract required the performance of work intrinsically dangerous--the use of scaffolding.

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