National Steel Erection v. Hinkle

• Decision Date: 17 July 1989
• Docket Number: No. 63A04-8711-CV-338,63A04-8711-CV-338
• Parties: NATIONAL STEEL ERECTION, Appellant (Defendant), v. Kelly E. HINKLE, Appellee (Plaintiff).
• Court: Indiana Appellate Court

Page 288

541 N.E.2d 288

NATIONAL STEEL ERECTION, Appellant (Defendant), v. Kelly E. HINKLE, Appellee (Plaintiff).

No. 63A04-8711-CV-338.

Court of Appeals of Indiana,

Fourth District.

July 17, 1989.

Peter G. Tamulonis, John B. Drummy, Kightlinger & Gray, Indianapolis, Ron A. Hobgood, Brent R. Weil, Kightlinger & Gray, Evansville, for appellant.

Bruce A. Smith, Washington, for appellee.

MILLER, Judge.

National Steel Erection [National] appeals a jury verdict in favor of Kelly E. Hinkle [Hinkle] who was injured when a roof constructed by National collapsed under his weight and he fell 20 to 25 feet to the floor below. We have consolidated and rephrased the issues as follows:

1. Whether the judgment was contrary to law and not supported by the evidence. ¹

2. Whether the trial court erred in denying National's motion for summary judgment.

3. Whether the trial court erred in giving two of Hinkle's tendered instructions and refusing three of National's tendered instructions.

Although we find National was not entitled to summary judgment and the evidence was sufficient to support the verdict, we reverse with instructions to grant National a new trial because Hinkle's instruction No. 1, given by the trial court, misstated the law with regard to the contractor's liability. ²

FACTS

Hinkle was employed as a maintenance worker by Alumax, Inc., which operated an aluminum recycling plant near Bicknell, Indiana. The recycling process used by Alumax creates an environment that is corrosive to metal.

In January or February 1984, Alumax had to replace the roof over a dross storage shed because the old fiberglass roof had been destroyed by fire. Alumax asked National to submit an estimate for replacing the roof. Beginning in 1980, National had been employed by Alumax for various construction jobs, and was aware of the corrosive environment in the plant. It submitted an estimate for replacing the roof with Resolite, a fire-retardant fiberglass material which is resistant to corrosion. ³ Steve Richardson, Alumax's plant manager, rejected the bid because he felt the Resolite was too expensive, instead he asked National to rebid the job on a labor only basis with Alumax providing the roofing material. Richardson instructed the Alumax purchasing agent, Teresa Yokum, to buy the cheapest material she could. In accordance with Richardson's instructions, Yokum purchased 28 gauge galvanized metal, which National used to replace the roof.

The roof of the dross storage shed was relatively flat and consisted of a number of large beams laid north to south approximately twenty feet apart, and eighteen purlins ⁴ laid east to west approximately five feet apart. The sheets of galvanized metal were laid north to south over the purlins The dross storage shed contained a number of tanks used to store dross, potash and salt. One of the tanks, located in the northeast corner of the shed penetrated the roof. Alumax intended to replace this tank and instructed National to leave the roof open in that area.

and attached to the purlins with sheet metal screws. The sides of the sheets were affixed to each other with stitch screws. Each sheet of metal was twelve feet long. Because the purlins were five feet apart, there was a two foot overlap at every other purlin. The normal overlap on a roof of this kind is one foot. After installing some of the sheets, National suggested cutting the sheets to create the normal overlap but was instructed not to do so by Alumax.

National completed work on the roof in January or February 1984. In July 1984, after the tank was replaced, Alumax decided to roof the area over it. Although Alumax had never done its own roofing work, it was decided because the plant was in "financial crisis", that Alumax would use its own employees to do the work rather than employing National or another roofing contractor. John White, Alumax's maintenance supervisor, instructed Hinkle, David Overton and Mitch Arthur to roof the area over the tank. They used the same material and method as used by National. In order to do the work, they had to stand on the roof installed by National. They worked by standing on the purlins. When it was necessary to move from one purlin to another, Hinkle walked on the roof, while Overton jumped from one purlin to the next. Hinkle and Overton did not use pickboards (pieces of wood laid from one purlin to the next to redistribute the weight on the roof), as was customary in the roofing industry. However, both Hinkle and Overton testified they were unaware of this custom.

After the roof was completed, leaks developed over the tank. On August 2, 1984 Hinkle and Overton were instructed to tar the seams in the area of the leaks. They worked on the roof on August 2 and continued working on August 3. In the afternoon, Hinkle walked across the area of the roof installed by National. The roof gave way close to one of the purlins where the metal sheets overlapped and Hinkle fell 20 to 25 feet to the floor below, suffering serious injury.

After the accident, White examined the underside of the roof and found it was seriously deteriorated. The metal was badly corroded in the areas where the sheets overlapped. The corrosion was more evident on the underside of the roof, but there were pin holes and small rust spots on the top.

Hinkle's expert, John Burcham, testified the metal used was too thin for a flat roof with a five foot span between the purlins, and would be dangerous to workers installing the roof. He also testified the excessive overlap aggravated the deterioration problem.

DECISION

Although we reverse and remand on the basis of improper instructions, we must also consider National's contention the verdict was contrary to law and not supported by sufficient evidence and that the trial court erred in denying its motion for summary judgment.

Sufficiency of Evidence

National argues there was insufficient evidence to prove the roof was inherently or imminently dangerous. In addition, it asserts--because it followed the plans and specifications of Alumax--it could not be held liable for defects which resulted from such plans and specifications.

When a verdict is challenged as being contrary to law, this court does not reweigh the evidence or judge the credibility of witnesses. We will consider only the evidence most favorable to the judgment and the reasonable inferences to be drawn therefrom, and will reverse only where the uncontradicted evidence leads to a conclusion opposite to that reached by the trial court. Indiana & Michigan Electric Co. v. Terre Haute Industries, Inc. (1987), Ind.App., 507 N.E.2d 588.

Here, where we are dealing with the liability of an independent contractor, we observe that generally, an independent contractor is not liable for injuries to third persons resulting from defects in construction after the work has been accepted by the owner. Citizens Gas & Coke Utility v. American Economy Insurance Co. (1985), Ind., 486 N.E.2d 998. However, exceptions to this rule exist when the structure was left "in a condition that was dangerously defective, inherently dangerous or imminently dangerous such that it created a risk of imminent personal injury." Id. at 1000; See Snider v. Bob Heinlin Concrete Construction Co. (1987), Ind.App., 506 N.E.2d 77; Holland Furnace Co. v. Nauracaj (1938), 105 Ind.App. 574, 14 N.E.2d 339. In addition, "[i]f the thing sold or constructed be not imminently dangerous to human life, but may become such by reason of some concealed defect, then a liability may arise against such vendor or constructor if he knew of the defect and fraudulently concealed it." Holland Furnace, supra at 581, 14 N.E.2d at 342.

Inherently dangerous is defined as: "Danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury; not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances." BLACK'S LAW DICTIONARY, p. 921 (4th Ed.Rev.1968). See Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280. National argues installing or repairing a roof is not inherently dangerous. ⁵ This argument incorrectly shifts the focus of this case from the condition of the roof to the activity of repairing the roof. The question here is whether the instrumentality (the roof itself) was inherently dangerous not whether the activity (installing or repairing a roof) was inherently dangerous. Nevertheless, National's argument is well taken. A roof, even a thin metal one, is not in itself dangerous at all times. The term "inherently dangerous" is more properly applied to activities or instrumentalities which are, by their nature, always dangerous, i.e. blasting or wild animals. See Johns v. New York Blower Co. (1982), Ind.App., 442 N.E.2d 382.

However, National fails to adequately consider the further language of the exception, which permits a contractor to be held liable if the condition was "imminently dangerous." Indiana courts have not specifically distinguished the two terms, and our research has not revealed an Indiana case expanding on the definition of "imminently dangerous." ⁶ BLACK'S LAW DICTIONARY, supra, p. 885 defines an imminently dangerous article as: "One that is reasonably certain to place life or limb in peril." Courts in other jurisdictions have defined an imminently dangerous instrumentality as: "of such a nature that danger in its use is imminent, that is, its use for the purpose for which it is intended is fraught with immediate peril, carries a threat of serious impending danger," Jump v. Ensign-Bickford Co. (1933), 117 Conn. 110, 118, 167 A. 90, 92 and "[a]n article ... though it may safely be used for the purpose intended if properly constructed, yet by reason of defective construction a threatened injury may be reasonably apprehended from its use." Rulane Gas Co. v. Montgomery Ward Co. (1949), 231 N.C. 270, 56 S.E.2d 689, 693. When determining...