Jackson v. Gibson

• Citation: 409 N.E.2d 1236
• Decision Date: 25 September 1980
• Docket Number: No. 2-278A43,2-278A43
• Parties: Duane JACKSON, Appellant (Plaintiff Below), v. Earl W. GIBSON, Individually and Earl W. Gibson, as Trustee, Appellee(Defendant Below).
• Court: Court of Appeals of Indiana

Page 1236

409 N.E.2d 1236

Duane JACKSON, Appellant (Plaintiff Below), v. Earl W. GIBSON, Individually and Earl W. Gibson, as Trustee,

Appellee(Defendant Below).

No. 2-278A43.

Court of Appeals of Indiana, Fourth District.

Sept. 25, 1980.

Michael S. Miller, Sutherlin, Kennedy & Miller, Indianapolis, for appellant.

Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee.

YOUNG, Presiding Judge.

Appellant-plaintiff Duane Jackson appeals from the entry of judgment in favor of appellee-defendant Earl Gibson. We affirm.

Duane Jackson was employed by Sun Realty Company, Inc. as a custodian. He was injured while performing his duties as custodian at a building owned by Earl Gibson. Earl Gibson was also the sole shareholder of Sun Realty and the president, resident agent and manager of the corporation. There is no dispute that the injury resulted from an accident arising out of and in the course of employment. Therefore, the Workmen's Compensation Act was applicable. Jackson has entered a settlement agreement pursuant to which he is receiving benefits under the Act. However, Jackson brings this negligence action against Gibson maintaining that Gibson is liable in a capacity other than by reason of an employee-employer relationship. He asserts these claims pursuant to Ind.Code 22-3-2-13 which states in part:

"Whenever an injury . . . for which compensation is payable . . . shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee . . . may commence legal proceedings against the other person to recover damages notwithstanding the employer's or the employer's compensation insurance carrier's payment of or liability to pay compensation . . . ."

The theories on which Jackson bases his claim sound of premises liability and operation of an ultrahazardous activity. Gibson contends that Jackson's injuries arose out of and in the course of employment, and compensation under the Act is exclusive. Ind.Code 22-3-2-6.

The trial court found that the facts were not in dispute and that it lacked jurisdiction of the subject matter because Gibson and Jackson were jointly employed and Gibson may not be held liable other than under the Act.

Generally, the rights and remedies granted to an employee by the Act on account of personal injury exclude all other rights and remedies of such employee at common law or otherwise because of such injury. Ind.Code 22-3-2-6. An exception is created which allows proceedings to be brought against some person other than the employer or one in the same employ in which a legal liability was created by an injury compensable under the Act. Ind.Code 22-3-2-13 (quoted in part above). In creating this exception the Legislature clearly limited the possibility of bringing suit against persons to those other than the employer or fellow employees. Each employer who is bound by the compensation provisions of the Act is required to carry insurance to insure payment of compensation to the employees. The employer, or those conducting his business, shall be liable to an employee for injury caused by accident arising out of and in the course of employment only to the extent set out in the Act. Ind.Code 22-3-2-5.

Two factually similar cases cited by appellee as controlling are Needham v. Fred's Frozen Foods, Inc., (1977) Ind.App., 359 N.E.2d 544, and Kottis v. United States Steel Corp., (7th Cir. 1976) 543 F.2d 22. In Kottis, an employee of U.S. Steel was killed in an accident that arose out of and in the course of his employment. His dependents were compensated under the Act. The administratrix of Kottis' estate brought an action against the employer to recover damages under a dual capacity theory. She argued U.S. Steel was not only Kottis' employer, but was also the owner of the land and the manufacturer of the crane on which the accident occurred. She contends that in these capacities, other duties were owed the decedent based upon theories of premises liability and product liability. Basing her argument on Ind.Code 22-3-2-13, she contended that this provision should be interpreted to permit an action against the employer when there is a capacity or a relationship to the employee other than employer. The United States Court of Appeals, Seventh Circuit, held that this was not consistent with the statute "which abrogates 'all other rights and remedies . . . at common law or otherwise, on account of such injury or death' except those against 'some other person than the employer not in the same employ.' " The court correctly affirmed the summary judgment for the employer. Similarly in Needham an employee brought suit against his employer in a capacity other than as employer. Needham was injured by an accident arising out of and in the course of his employment. He asserted that an employee covered by the Act may sue his employer not as employer but in the capacity of a manufacturer of a defective product. Judge Sullivan adopted the reasoning of Kottis and held it dispositive of the appeal. Both of these cases reject the "dual-capacity" doctrine. See Utken, Workmen's Compensation, Survey of Recent Development in Indiana Law, 11 Ind.L.Rev. 340.

However, our case is different in an important aspect. Jackson was employed by Sun Realty, Inc. He is bringing suit against Gibson, the owner of the land on which he was injured. Sun Realty, Inc. did not own the land....