Johns v. New York Blower Co.

• Decision Date: 30 November 1982
• Docket Number: No. 3-382A52,3-382A52
• Citation: 442 N.E.2d 382,34 A.L.R.4th 904
• Parties: Roger G. JOHNS, Plaintiff-Appellant, v. NEW YORK BLOWER COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 382

442 N.E.2d 382

34 A.L.R.4th 904

Roger G. JOHNS, Plaintiff-Appellant, v. NEW YORK BLOWER COMPANY, Defendant-Appellee.

No. 3-382A52.

Court of Appeals of Indiana Third District.

Nov. 30, 1982.

Charles A. Sweeney, Jr., Sweeney, Butler & Simeri, South Bend, for plaintiff-appellant.

Arthur A. May, Thomas D. Blackburn, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for defendant-appellee.

GARRARD, Judge.

This appeal arises from the trial court's ruling on New York Blower Co.'s (Owner) motion for summary judgment which deemed certain facts established and restricted trial to one remaining issue, and from the court's subsequent grant of owner's motion for judgment on the evidence.

Appellant Roger G. Johns (Johns) was employed as an iron worker by the Larson-Danielson Construction Co. (Contractor) and in June of 1977 was working on the erection of a building for the owner in LaPorte, Indiana. On June 21, 1977 Johns sustained personal injuries when he fell from the steel beam he was working on to the ground approximately thirty feet below.

Johns subsequently brought suit in two counts. Count I alleged that Johns' injuries resulted from the owner's carelessness and negligence in maintaining unsafe and unhealthful working conditions. In Count II Johns alleged that his injuries resulted from the owner's breach of its duty to supervise the progress of construction.

The owner filed a motion for summary judgment and the trial court denied the motion but held that the following facts appeared without controversy:

"1. That the Defendant, New York Blower Company, did not maintain the structure and is not liable under Section 422 of the restatement of torts second.

2. That the Defendant, New York Blower Company, did not control the safety precautions to the extent necessary to create a duty of reasonable care or to be responsible for the enforcement of OSHA regulations.

3. That the Defendant, New York Blower Company, employed the Plaintiff's employer and was not under a duty towards the Plaintiff to take precautions to avoid harm due to the nature of the acts to be performed for his employer."

The court also restricted the issues to be considered at trial to: "Whether or not the contract required work that was inherently dangerous."

Jury trial was held on September 29 and 30, 1981 and at the close of Johns' case-in-chief the owner orally moved for judgment on the evidence pursuant to Indiana Rules of Procedure, Trial Rule 50. The court granted this motion, finding that the remaining issue regarding Johns' allegation that working on steel beams without a safety net is inherently dangerous was not supported by the evidence.

The only issue argued on appeal is the grant of the Trial Rule 50 motion. Thus, any error in the court's ruling on the motion for summary judgment has been waived, and our review accepts the undisputed facts found by the court to exist.

The issue before us is whether the trial court erred in finding that there was no evidence of negligence on the part of the owner. Under the facts adduced at trial the question becomes whether there was sufficient evidence to create an issue of fact as to whether an iron worker working some thirty feet above the ground without a safety net below him is in an inherently or intrinsically dangerous occupation as that term is defined by Indiana law. If so, the question expands into an examination of the duty owed, and whether there was evidence of a breach of the duty that proximately caused Johns' injuries.

In reviewing the court's action in granting judgment on the evidence we must consider the evidence from the perspective favoring the non-moving party to determine whether there was introduced evidence of probative value on each element of the claim such that a reasonable jury might have found for the opponent of the motion. Haidri v. Egolf (1982), Ind.App., 430 N.E.2d 429.

As a prelude to deciding whether the trial court erred it is necessary to understand the relationship between the owner, the contractor, and Johns. In this regard certain pretrial admissions by Johns become important. In his response to requests for admissions, Johns admitted that: (1) he was employed by the contractor on the date of his injury, and (2) that he took instruction and direction from the contractor. These admissions support the trial court's characterization of the parties' relationship as one of owner-independent contractor rather than as one of master-servant. The characterization is important since Indiana courts follow the rule that:

"Generally, one is not liable for the acts or negligence of another unless the relation of master and servant exists between them. Thus, where a party exercising independent employment causes injury to another, the person employing that party will not be liable in damages for injury resulting from such party's wrongful acts or omissions. Allison v. Huber, Hunt and Nichols, Inc. (1977), 173 Ind.App. 41, 362 N.E.2d 193."

Perry v. Northern Ind. Pub. Serv. Co. (1982) Ind.App., 433 N.E.2d 44, 46. See also Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, 367; Cummings v. Hoosier Marine Properties, Inc. (1977), 173 Ind.App. 372, 363 N.E.2d 1266, 1277; Hale v. Peabody Coal Co. (1976), 168 Ind.App. 336, 343 N.E.2d 316, 320-21; Jones v. Indianapolis Power & Light Co. (1973), 158 Ind.App. 676, 304 N.E.2d 337, 343; Scott Const. Co. v. Cobb (1928), 86 Ind.App. 699, 159 N.E. 763, 765.

Johns does not dispute the existence of the general rule; rather he argues that the owner should be liable for his injuries according to the "intrinsically dangerous work" exception to that rule. This exception was first noted in Scott, supra, 159 N.E. at 765 where the court said the general rule "... does not apply in the following cases: (1) Where the contract requires the performance of work intrinsically dangerous; ...." See also Perry, 433 N.E.2d at 47; Cummings, 363 N.E.2d at 1274; Jones, 304 N.E.2d at 343-44. This exception, like others to the general rule, ¹ exemplifies a situation where liability may not be delegated to an independent contractor. Perry, 433 N.E.2d at 47.

The "intrinsically dangerous work exception" has been discussed in several Indiana cases. In Jones, supra, the court said:

"Intrinsic or inherent danger possesses a special meaning in the law. It can not be used to describe circumstances and conditions which are not natural, ever-present components of the instrumentality itself, but are merely dangers arising from casual or collateral negligence of others. Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280; Black's Law Dictionary, p. 921 (West 4th Ed. 1951)."

304 N.E.2d at 344. In Cummings, supra, the court said:

"[I]nherently dangerous means that the danger exists in the doing of the activity regardless of the method used. It is a risk intrinsic to the accomplishment of the task and not simply a danger arising from a causal or collateral negligence of others. Neal, Admr. v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280. Thus liability under the inherently dangerous exception is imposed on a rationale sounding in strict liability as would exist for example in blasting."

363 N.E.2d at 1275.

Appellants who have argued for expansion of the "intrinsically dangerous work" exception have not fared well in Indiana courts. In upholding the trial court's grant of a defendant's motion for summary judgment, the court in Perry held that welding metal clips onto a fan housing approximately 20 feet above ground without using a scaffold or other safety apparatus was not inherently dangerous work. 433 N.E.2d at 47. Sustaining the trial court's grant of the defendant's motion for judgment on the evidence in Cummings, the court held that excavation of sewer trenches eighteen feet deep and five feet wide was not inherently dangerous work. 363 N.E.2d at 1275. In Hale the court upheld summary judgment for the defendant and ruled that attaching metal panels to a conveyor belt housing twenty five feet above the ground was not inherently dangerous work. 343 N.E.2d at 322. Jones, affirming the trial court's grant of defendant's motion for judgment on the evidence, held that use of a hoist to lift men approximately 100 feet above ground was not inherently dangerous work. 304 N.E.2d at 342.

Johns claims that working on a steel beam thirty feet above ground without safety neeting should be deemed inherently dangerous work within the meaning of that exception to the general rule of non-liability. He cites Kelley v. Howard S. Wright Const. Co. (1978), 90 Wash.2d 323, 582 P.2d 500 decided by the Supreme Court of Washington. This case also involved a fall from a steel beam giving rise to a suit against the general contractor. In its decision the court found four alternative grounds for liability, including a common law claim for inherently dangerous work. ² It deemed work inherently dangerous whenever the work by its very nature creates some peculiar risk of injury which the defendant has reason to know of.

We decline to adopt this view. We base our conclusion on two reasons.

First, our courts have held that work is not "inherently dangerous" if the risk of injury can be eliminated or significantly reduced by taking safety precautions. Secondly, we conclude that the inherently dangerous work exception is not applicable to employees of an independent contractor.

In Hale, supra, the court said:

"[A]n instrumentality is not considered intrinsically dangerous if the risk of injury involved in its use can be eliminated or significantly reduced by taking proper precautions. Denneau v. Indiana & Michigan Electric Company [ (1971), 150 Ind.App. 615, 277 N.E.2d 8.]"

343 N.E.2d at 322. See also Perry, supra, 433 N.E.2d at 47.

In the present case the risk of injury could have been eliminated through the use of safety, or tag, lines. ³ On cross-examination Johns, himself, testified that had he been wearing his tag...