Indiana State Highway Commission v. Thomas

• Decision Date: 20 April 1976
• Docket Number: No. 2174A21,2174A21
• Citation: 169 Ind.App. 13,346 N.E.2d 252
• Parties: State of Indiana, INDIANA STATE HIGHWAY COMMISSION, Appellant (Defendant and Third-Party Plaintiff below), v. Richard THOMAS, Appellee (Plaintiff below), Russell F. Davis, Inc., and McMahan Construction Company, Appellees (Third-Party Defendants below), and Public Service Company of Indiana, Appellee (Co-Defendants below).
• Court: Indiana Appellate Court

Page 252

346 N.E.2d 252

169 Ind.App. 13

State of Indiana, INDIANA STATE HIGHWAY COMMISSION, Appellant (Defendant and Third-Party Plaintiff below), v. Richard THOMAS, Appellee (Plaintiff below), Russell F. Davis, Inc., and McMahan Construction Company,

Appellees (Third-Party Defendants below),

and

Public Service Company of Indiana, Appellee (Co-Defendants below).

No. 2174A21.

Court of Appeals of Indiana, Second District.

April 20, 1976.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellant.

Floyd Cook, Cook & Cook, Kokomo, Theodore J. Smith, Lafayette, for Richard Thomas.

Geoffrey Seger, Ice Donadio & Ryan, Indianapolis, Schultz, Ewan & Burns, Lafayette, for Russell F. Davis, Inc. and McMahan Const. Co.

Russell H. Hart, Stuart, Branigin, Ricks & Schilling, Lafayette, for Public Service Co. of Indiana.

SULLIVAN, Judge.

This case arises out of a highway construction accident on July 17, 1968 in which plaintiff Richard Thomas suffered personal injuries while employed by Third-Party Defendant Russell F. Davis, Inc. (Davis) in the widening and relocating of the U.S. 52 By-Pass near Lafayette. The construction work in which Thomas was involved was undertaken by Davis and its joint venturer, Third-Party Defendant McMahan Construction Company (McMahan), per their contract (designated R--7635) with Defendant/Third-Party Defendant/Third-Party Plaintiff State of Indiana, State Highway Commission (State). Thomas' injuries resulted when the boom of a crane, the bucket of which he was touching, came in contact with energized overhead power lines owned and maintained by Defendant/Third-Party Plaintiff Public Service Co. of Indiana (PSCI).

Initially, Thomas sued PSCI for negligence in maintaining its power lines above the work site. PSCI filed third-party complaints against the State, Davis and McMahan, seeking indemnity on various theories. The State filed third-party complaints against Davis and McMahan, seeking indemnity pursuant to terms of the construction contract, # R--7635. This action, pending in the Tippecanoe Circuit Court as Cause No. C--427--68, was, by stipulation of the parties on December 20, 1972, consolidated with an action then pending in the Marion County Superior Court as Cause No. S570--6. In the latter action, plaintiff Thomas was seeking recompense for his injuries directly from the State, alleging the State's negligence in its supervision of the construction in which Thomas was engaged. In No. S570--6, the State had filed third-party complaints against Davis and McMahan for indemnification, based upon their contract with the State.

By stipulation of the parties, plaintiff Thomas' actions in negligence against PSCI and the State were tried to a jury in the Tippecanoe Circuit Court. Also by stipulation of the parties, it was agreed that 'all Third and Fourth-Party indemnity actions shall be tried to the Court . . ..' By the court's Pre-Trial Order, the contested issues of fact were stated to be, inter alia, (1) the negligence, if any, of PSCI as a proximate cause of the accident; (2) the negligence, if any, of the State as a proximate cause of the accident; and (3) whether the State is entitled to indemnity from Davis and McMahan.

The negligence questions (as well as Plaintiff's damages, contributory negligence, and assumption and incurrence of risk) were submitted to the jury, the verdict being as follows:

'We, the jury, find for the plaintiff, Richard Thomas, and against the defendant, State of Indiana, and Indiana State Highway Commission, and assess plaintiff's damages in the sum of Two Hundred and Thirty-Five Thousand Dollars ($235,000.00), and in favor of the Defendant Public Service Company of Indiana.'

The trial court, pursuant to the parties' earlier stipulation, then considered the question of whether the State was entitled to indemnification from Davis and McMahan. The court concluded that the State was not entitled to indemnity and entered judgment for Thomas against the State for $235,000, the amount found by the jury. The State appeals, asserting that (1) it ought not be held liable to Thomas, either because the State's employees were not negligent at all, or because the asserted negligence of Davis was the sole proximate cause of plaintiff's injuries, and (2) even if properly found liable to Thomas, the State is nonetheless entitled to indemnification from Davis and McMahan.

The facts most favorable to the appellees reveal that when the accident occurred, the Davis Construction Co. crew of which Thomas was a member was engaged in constructing a manhole on the sewer line which ran beside the U.S. 52 By-Pass, near the Anheiser-Busch plant. On top of the sewer pipe, a wooden form had been built into which concrete was to be poured. The form and sewer line beneath it were located in an excavation some ten or twelve feet deep. Some thirty feet above ground level and nearly directly over the excavation were the energized power lines of PSCI. A crane with a boom of some fifty to sixty feet, operated by its owner under contract with Davis, sat on the edge of the excavation and was to pour the concrete. The crane was equipped with a steel bucket with which it would scoop up the concrete from a tray supplied by a nearby truck. The crane would then swing its boom over the hole, and lower the bucket to Thomas and two other Davis employees waiting below who would guide the bucket over the form to release the concrete. It was just as Thomas and his co-workers were placing their hands on the bucket that the crane's boom touched the overhead power lines.

The parties do not dispute that performance of the concrete-pouring operation in the manner described above violated certain safety regulations prescribed by the Indiana State Department of Labor and the United States Department of Commerce made applicable to this project by the express terms of the State's contract with Davis and McMahan. Typical of the applicable safety regulations are the sections of Safety Code No. 13, promulgated by the State Department of Labor for the Construction Industry:

'12--21. Power shall be cut off from electric lines within range of shovel or crane operation whenever possible. When not possible to cut off power the shovel or crane shall not be operated within electrical reach of electric transmission lines.

12--22. A man shall be posted to warn shovel or crane operator of close proximity of electric wires or other wire or guy lines when operating or moving machines.' (Emphasis supplied)

Ample testimony buttressed the obvious inference that the operation of a crane with a fifty to sixty foot boom directly beneath live power lines only thirty feet above the ground was, in the words of a Civil Engineer employed by the State, 'highly dangerous.'

The State's contract with Davis and McMahan required that '(i)n the performances of this contract, the contractor shall comply with applicable Federal State and local laws governing safety, health and sanitation.' However, the evidence is clear that the State was not content to rest upon Davis' contractual assurances, but rather took an active hand in supervising the construction to insure that the work was properly and safely performed. To this end the State employed a Project Engineer who, with the assistance of several Inspectors, worked with Davis and McMahan on a daily basis at the job site to insure that the contractors complied with all of the specifications of the contract, including those terms requiring observance of applicable safety regulations. ¹ As stated by an engineer of the State Highway Commission employed as the Project Engineer's immediate superior:

'Well, at that time (July, 1968) and still, I think, the general felling is on a project that it's both the responsibility of the Project Engineer and the contractor's personnel to see that all safety regulations are complied with. If the Project Engineer observes the--the noncompliance of safety regulations, it's his responsibility to inform the contractor's supervisory people that they--they--they are taking chances in violating the specifications.'

The record reveals that the authority of the Project Engineer and the Inspectors to make certain that the work was safely performed was considerably broader than a mere ability to warn or notify the contractor of an unsafe condition or practice. Explicit specifications of the contract authorized the Project Engineer and the Inspectors (the latter subject to the Engineer's approval) to temporarily suspend the work and/or modify the manner of performance contemplated by the contractor. ²

The record contains reference to several instances in which either the Project Engineer, Mr. Shen, or a State Inspector exercised his authority to control the manner of Davis' performance under the contract. For example, on one occasion a State Inspector, Joseph McIntyre, had prevailed upon Davis employees to stop working in an area which McIntyre thought was dangerous to the workers and to the public because of heavy traffic. Immediately prior to the accident here involved, Engineer Shen inspected the excavation into which Thomas was to help pour the concrete and ordered Davis employees to widen the hole so that it would be safer for the workers. After the accident, it was Shen who ordered concrete-pouring operations at that site suspended for the day, and completed the operation on the following day with the use of ground-level chutes rather than a crane.

De-energization, insulation or relocation of the overhead power lines could only be accomplished by PSCI as owner of those lines. Shen's authority as Project Engineer to induce PSCI to take measures with respect to relocating or de-energizing the lines was unquestioned, and in fact was first exercised at a 'head-knocking' pre-construction utilities conference in May of 1968. Shen admitted that he had the authority to require PSCI to relocate or de-energize its lines and thus 'by-pass' the area in which...