Merritt v. Bethlehem Steel Corp.

Decision Date22 May 1989
Docket NumberNo. 88-2249,88-2249
PartiesRoger Curtis MERRITT, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, a foreign corporation licensed to do business in the State of Indiana, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

William S. Spangler, Spangler Jennings Spangler & Dougherty, Merrillville, Ind., for plaintiff-appellant.

Mark S. Dym, Gessler Flynn Laswell Fleischmann Hughes & Socol, Ltd., Chicago, Ill., for defendant-appellee.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge. *

GRANT, Senior District Judge.

Roger Merritt, an employee of an independent contractor, brought this diversity action against Bethlehem Steel Corporation, as the landowner/contractee, to recover for injuries he sustained while working at Bethlehem's plant in Burns Harbor, Indiana. The district court's grant of summary judgment for Bethlehem forms the basis of the appeal.


Bethlehem Steel owns and operates a steel manufacturing plant in Burns Harbor, Indiana, which requires the use of high voltage electricity. As part of its integrated operation, Bethlehem maintains on its property the lines, towers and insulators necessary to supply that electricity.

On March 27, 1984, Bethlehem contracted with Petronol Company, Inc., advertised professionals in cleaning electrical equipment while the lines remain electrically charged, to clean and refurbish various electric towers and insulators at the Burns Harbor plant. The contract specifically provided that Petronol was "to supply all labor, equipment and material to clean the ... energized lines." It is undisputed that under the terms of the contract, Petronol was an independent contractor.

Roger Merritt was employed by Petronol as part of the cleaning crew at the Burns Harbor plant when he fell and touched an energized line. As a result of both the electrical shock and his fall from the tower on which he was working, Merritt sustained serious personal injuries. It is undisputed that Merritt knew the lines were energized when he undertook the job, that his safety belt was not attached, and that there were signs posted in the area warning "Danger 13,800 Volts".

While Merritt acknowledges that a landowner/contractee will generally not be liable for injuries to an employee of an independent contractor resulting from the contractor's negligence, Johns v. New York Blower Co., 442 N.E.2d 382, 384 (Ind.App.1982); Perry v. Northern Indiana Public Service Co., 433 N.E.2d 44, 46 (Ind.App.1982); Denneau v. Indiana & Michigan Electric Co., 150 Ind.App. 615, 277 N.E.2d 8, 12 (1971), he contends that it is Bethlehem's own negligence and not that of the contractor which forms the basis of liability in the present case. See, i.e., Ruhs v. Pacific Power & Light, 671 F.2d 1268, 1272 (10th Cir.1982). Merritt's claim is premised on the presumption that Bethlehem had the ability and the duty to alternately deenergize the electrical lines nearest the work activity to protect Petronol employees from injury, and that it failed to meet that duty. Merritt proposes three sources for such a duty: (1) the common law, (2) Bethlehem's contract with Petronol, and (3) various federal and state safety regulations.

In granting Bethlehem's motion for summary judgment, the district court found that neither the common law nor the contract between Bethlehem and Petronol imposed upon Bethlehem any duty to deenergize the lines. While the court found that the safety regulations promulgated under the Occupational Safety and Health Act (OSHA), 29 U.S.C. Sec. 651 et seq., and the Indiana Occupational Safety and Health Act (IOSHA), I.C. 22-8-1.1-1 et seq., specifically the National Electrical Safety Code and National Electrical Code, applied to Bethlehem with respect to Merritt, Teal v. E.I. DuPont de Nemours and Co., 728

                F.2d 799, 804-05 (6th Cir.1984);  Marshall v. Knutson Construction Co., 566 F.2d 596, 599 (8th Cir.1977), the regulations could not be used to expand or otherwise affect Bethlehem's common law duties or liabilities under a negligence per se theory, or as evidence of an expanded standard of care.  29 U.S.C. Sec. 653(b)(4);  I.C. 22-8-1.1-48.3;  Hebel v. Conrail, Inc., 475 N.E.2d 652, 658 (Ind.1985).  The court concluded that "even as evidence of negligence, no jury question would be presented [as] Bethlehem's duty of care was adequately met by warning Merritt that the lines were energized."    For the following reasons, we now affirm the judgment of the district court

Under the common law, Bethlehem owes a duty to its business invitees to keep and maintain the job site in a reasonably safe condition. Bogard v. Mac's Restaurant, Inc., 530 N.E.2d 776, 777 (Ind.App.1988); Wingett v. Teledyne Industries, Inc., 479 N.E.2d 51, 54 (Ind.1985); Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind.App.1983). Merritt maintains that where the contracted work involves a "dangerous instrumentality" such as electricity and creates a "peculiar unreasonable risk of harm to others," that duty becomes non-delegable and imposes upon a landowner/contractee the responsibility for taking reasonably necessary steps to prevent the harm. Restatement (Second) of Torts, Sec. 413, pp. 384-85 (1965); Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1010 (7th Cir.1982); Ruhs, 671 F.2d at 1272; Curl v. Bethlehem Steel Corp., 181 Ind.App. 132, 390 N.E.2d 709, 711 (1979); Denneau, 277 N.E.2d at 12. He concludes that such steps include deenergizing the power lines.

The district court found, however, that Bethlehem's duty with respect to Petronol's employees was only coextensive with the purpose and intent of the invitation, Pucalik v. Holiday Inns, Inc., 777 F.2d 359, 362 (7th Cir.1985); Perry v. Northern Indiana Public Service Co., 433 N.E.2d 44, 49 (Ind.App.1982); Hoosier Cardinal Corp. v. Brizius, 136 Ind.App. 363, 199 N.E.2d 481, 487 (1964), and that, given the nature of the invitation which required that the work be performed while the lines remained energized, Bethlehem's only duty was to warn of latent defects in or on the premises. Louisville Cement Co. v. Mumaw, 448 N.E.2d 1219, 1221 (Ind.App.1983). Assuming that the dangers of electricity could be considered "latent," the district court found that Bethlehem had adequately met its duty by posting signs warning of that danger. We concur.

[T]he duty of the inviter, and his corresponding liability for breach of duty, depends upon the circumstances surrounding the invitation, including the character of the premises the invitee is invited to use, the nature of the invitation, the conditions under which it is extended, and the use of the premises to be made by the invitee. The basis of liability of the inviter for failing to render the premises reasonably safe for the invitee must be predicated upon the superior knowledge of the inviter of the dangers of the premises.

Douglass v. Irvin, 531 N.E.2d 1214, 1217 (Ind.App.1988) (quoting Hoosier Cardinal Corp., 199 N.E.2d at 487) (emphasis added). See also Bogard, 530 N.E.2d at 778; Wingett, 479 N.E.2d at 54. Where a dangerous condition or defect exists on the property of which the landowner is aware and which is not likely to be discovered by an invitee, the landowner has a duty to either warn the invitee of the condition or correct the condition. Bogard, 530 N.E.2d at 777; Louisville Cement Co., 448 N.E.2d at 1221. "The owner discharges his duty to the invitee if he follows either course." Louisville Cement Co., 448 N.E.2d at 1221; see also Downham v. Wagner, 408 N.E.2d 606, 610 (Ind.App.1980).

Where an invitee is possessing of knowledge equal or superior to that of the landowner of the hazard causing the injury, the landowner is relieved of any duty which might have otherwise been imposed.

Douglass, 531 N.E.2d at 1217.

Merritt has failed to demonstrate that Bethlehem had the superior knowledge necessary That the contracted work may have been "intrinsically dangerous," involved a "dangerous instrumentality," or created a "peculiar unreasonable risk of physical harm to others" does not impose upon Bethlehem any greater duty. Under Indiana law, the intrinsically dangerous work exception to the general rule of nonliability does not extend to employees of an independent contractor performing the work. Bogard, 530 N.E.2d at 779; Texas Eastern Transmission Corp. v. Seymour National Bank, 451 N.E.2d 698, 699 (Ind.App.1983), trans. denied; Johns v. New York Blower Co., 442 N.E.2d 382, 388 (Ind.App.1982). 3 The same is true of the "injury to others" exception articulated in Restatement (Second) of Torts, Sec. 413. "[The] language 'injury to others' has been held to mean injury to third persons who are not involved in the work being done and less likely to be aware of the associated dangers." Bogard, 530 N.E.2d at 779; see also Louisville Cement Co., 448 N.E.2d at 1222; Johns, 442 N.E.2d at 387 n. 7; Hale v.

                to impose liability.  As we have previously noted, Petronol was a self-professed expert in cleaning electrical equipment for industrial facilities and utilities while the lines remained energized.  Its contract with Bethlehem expressly provided that the work would be performed under those circumstances.  Merritt was also aware of the fact that the lines were energized when he undertook the job.  There is no indication that he did so under duress.  "One who assumes a risk inherent in a contractual obligation cannot later complain that the contractee negligently exposed him to that risk."    Pucalik, 777 F.2d at 362;  see also Meadowlark Farms, Inc. v. Warken, 176 Ind.App. 437, 376 N.E.2d 122, 133 (1978). 1   Under the circumstances, Bethlehem was relieved of any duty which it might have toward Merritt.  See Douglass, 531 N.E.2d at 1217;  Wingett, 479 N.E.2d at 54. 2
                Peabody Coal Co., 168 Ind.App. 336, 343 N.E.2d 316, 323-24 (1976)

Alternatively, Merritt contends that under the...

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