Needham v. Fred's Frozen Foods, Inc.
| Decision Date | 17 January 1977 |
| Docket Number | No. 2--775A190,2--775A190 |
| Citation | 359 N.E.2d 544,171 Ind.App. 671 |
| Parties | Jack NEEDHAM, Jr., b/n/f Jack Needham, Appellant (Plaintiff below), v. FRED'S FROZEN FOODS, INC., Appellee (Defendant below). |
| Court | Indiana Appellate Court |
Richard A. Young, Young & Young, Indianapolis, Eugene B. Burns, Lebanon, for appellant.
Charles G. Reeder, Johnson & Weaver, E. Davis Coots, Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee.
Jack Needham, Jr. (Needham) appeals a judgment dismissing his three count complaint against Fred's Frozen Foods, Inc.'s (Frozen Foods). 1
The facts, as alleged and taken as true 2 reveal that on May 18, 1970, Needham, a part-time employee of Frozen Foods, was assigned the task of cleaning a pressure cooker unit which Frozen Foods had designed, manufactured and installed. While Needham was attempting to fulfill this duty, the unit erupted, spraying him with scalding grease. As a result, Needham received first degree burns over forty per-cent (40%) of his doby.
We are confronted with a question of first impression. Needham asks us to hold, notwithstanding the exclusivity of remedies under the Workmen's Compensation Act, (hereinafter referred to as the Act), I.C. 22--3--2--6 (Burns Code Ed. 1974), that an employee covered by the Act may have an independent cause of action against his employer, not as his employer but as a manufacturer of a defective product used in the course of and in the scope of employment. Needham asserts that his negligence, strict liability and warranty claims can be permissibly asserted against Frozen Foods under a 'dual-capacity' theory. See, Duprey v. Shane (1952) Cal.App., 241 P.2d 78, aff'd, 39 Cal.2d 781, 249 P.2d 8; 2A Larson, Workmen's Compensation Law § 72.80 (1976); Vargo, Survey of Recent Developments in Indiana Law, 8 Ind.L.R. 289, 293 (1974); Kelly, Workmen's Compensation and Employer Suability: The Dual Capacity Doctrine, 5 St. Mary's L.J. 818 (1974). In other words, Needham maintains that Frozen Foods is liable in a capacity which creates obligations apart from those imposed by reason of the employee-employer relationship, and that therefore he may litigate these claims pursuant to I.C. 22--3--2--13 (Burns Code Ed. 1974), a section which permits the initiation of tort claims against 'some other person than the employer and not in the same employ.'
Frozen Foods contends that since Needham's injuries arose out of and in the course of employment, compensation under the Act is his exclusive recourse against Frozen Foods, and no 'legal stratagem or ploy' can circumvent the application of I.C. 22--3--2--6, supra.
The United States Court of Appeals for the Seventh Circuit was confronted with essentially the same question in Kottis v. United States Steel Corporation, 543 F.2d 22, 55 Ind.Dec. 265 (7th Cir. 1976). In Kottis, the decedent-employee was killed while performing his duties as a crane-man for the defendant-employer in its Gary, Indiana plant. The plaintiff-administratrix not only sought and received workmen's compensation benefits, but filed an action, to which the appeal was addressed, against the employer in its capacities as landowner and crane manufacturer. The court, by thoroughly analyzing and accurately applying existing Indiana case and statutory law, rejected the plaintiff's argument that I.C. 22--3--2--13, supra, should be interpreted so as to allow an action against an employer who assumes dual roles with respect to an employee and in so holding said:
'This argument does considerable violence to the statutory language (I.C. 22--3--2--6, supra), 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 and not in the same employ." Kottis...
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