Pelak v. Indiana Industrial Services, Inc.

• Decision Date: 25 July 2005
• Docket Number: No. 49A02-0402-CV-119.,49A02-0402-CV-119.
• Citation: 831 N.E.2d 765
• Parties: Thomas PELAK and Diane Kaye Pelak, Appellants-Plaintiffs, v. INDIANA INDUSTRIAL SERVICES, INC., Pearson Education, Inc., and Prentice-Hall, Inc., Appellees-Defendants.
• Court: Indiana Supreme Court

831 N.E.2d 765

Thomas PELAK and Diane Kaye Pelak, Appellants-Plaintiffs, v. INDIANA INDUSTRIAL SERVICES, INC., Pearson Education, Inc., and Prentice-Hall, Inc., Appellees-Defendants.

No. 49A02-0402-CV-119.

Court of Appeals of Indiana.

July 25, 2005.

COPYRIGHT MATERIAL OMITTED

Ralph E. Dowling, Norris Choplin & Schroeder, LLP, Indianapolis, for Appellants.

Thomas C. Hays, Robert R. Foos, Jr., Lewis & Wagner, Indianapolis, for Pearson Education, Inc., and Prentice Hall, Inc.

OPINION

MAY, Judge.

Thomas Pelak and Diane Kaye Pelak appeal the trial court's grant of summary judgment on their claim of negligence against Pearson Education, Inc. and Prentice-Hall, Inc. (collectively "Pearson") for injuries Thomas suffered.¹ The Pelaks raise several issues, which we consolidate and restate as whether a genuine issue of material fact existed as to Pearson's control of the premises where Pelak was injured.

We affirm.²

FACTS AND PROCEDURAL HISTORY³

Pearson purchased a new conveyor and related equipment from Rapistan Systems.⁴ Pearson issued a purchase order based on a bid proposal solicited from Rapistan. Rapistan sub-contracted with Indiana Industrial Systems ("IIS") to install the conveyor. The installation required the construction of a temporary catwalk system along an elevated section of the conveyor system. IIS built a catwalk consisting of sheets of bar grating placed on top of, but not affixed to, supporting structural steel. The catwalk had gaps where there was no grating, planking, warning signs, chains, rails or footboards.

On March 1, 2000, during the final stage of the conveyor's installation, Pelak, a senior project engineer for Rapistan, was on the catwalk at the center of the conveyor trouble-shooting the conveyor system's electronic controls. As he walked toward the front end of the conveyor, he fell through a two-to-three foot gap in the catwalk. He fell fifteen feet to a concrete floor and suffered severe injuries. On February 26, 2002, the Pelaks brought a premises liability action against Pearson and IIS.

Pearson filed a motion for summary judgment, which the trial court denied. Pearson then designated additional evidence and filed a second motion for summary judgment. The trial court granted the second motion for summary judgment, but it did not specify on what basis the motion was granted. Pelak requested permission to bring an interlocutory appeal, which we granted. Additional facts will be set forth as necessary.

DISCUSSION AND DECISION

The Pelaks argue the trial court erred by entering summary judgment for Pearson because Pearson, as owner of the premises where Pelak was injured, owed Pelak a duty of care. Pearson argues it did not have a duty to provide a safe work environment for Pelak, who was an employee of an independent contractor, "because it did not control the allegedly dangerous condition, or the manner and means by which it was installed." (Appellee's Br. at 10.)

On appeal, the standard of review for a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 984 (Ind.1998). Review of a summary judgment motion is limited to those materials designated to the trial court. T.R. 56(H); Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). We must carefully review a grant of summary judgment to ensure a party was not improperly denied its day in court. Estate of Shebel ex rel. Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind.1999).

A negligence action is generally not appropriate for disposal by summary judgment. Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind.Ct.App.2002). However, a defendant may obtain summary judgment in a negligence action when the undisputed facts negate at least one element of the plaintiff's claim. Id. While proximate cause is generally a question of fact, it becomes a question of law where only a single conclusion can be drawn from the facts. Id. To avoid summary judgment, the Pelaks had to establish specific facts that support an inference Pearson was negligent. Barsz v. Max Shapiro, Inc., 600 N.E.2d 151, 152-53 (Ind.Ct.App.1992).

The tort of negligence consists of three elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused by that breach. Kincade, 773 N.E.2d at 911. Negligence "cannot be inferred from the mere fact of an accident." Hale v. Community Hosp. of Indianapolis, Inc., 567 N.E.2d 842, 843 (Ind.Ct.App.1991). Rather, all the elements of negligence must be supported by specific facts designated to the trial court or reasonable inferences that might be drawn from those facts. Kincade, 773 N.E.2d at 911. An inference is not reasonable when it rests on no more than speculation or conjecture. Id.

Duty of Landowners Generally

The duty a possessor of a premises owes to an employee of an independent contractor is well-settled. Generally, an owner of property is under no duty to provide an independent contractor with a safe place to work. Zawacki v. U.S.X., 750 N.E.2d 410, 414 (Ind.Ct.App.2001), trans. denied 774 N.E.2d 508 (Ind.2002). However, the owner has a duty to maintain the property in a reasonably safe condition for business invitees, including employees of independent contractors. Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1264-65 (Ind.Ct.App.2002), trans, denied 783 N.E.2d 703; Zawacki, 750 N.E.2d at 414.

According to the Restatement (Second) of Torts § 343 (1965) on which Pelak relies, a possessor of land is subject to liability if the possessor: (1) knows or should know of a danger and should realize it involves an unreasonable risk; (2) should expect that invitees will not realize the danger or will not protect themselves against such; and (3) fails to exercise reasonable care to protect the invitees from danger. Merrill, 771 N.E.2d at 1265.

Similarly, control over a premises is used to determine who is liable for injuries on the premises. The thread through the law imposing liability based on occupancy of a premises is control. Reed, 781 N.E.2d at 1148. "[O]nly the party who controls the land can remedy the hazardous conditions which exist upon it and only the party who controls the land has the right to prevent others from coming onto it." Id. Thus, the party in control of the land has the exclusive ability to prevent injury from occurring. Id. The rationale is to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm. Harris v. Traini, 759 N.E.2d 215, 225 (Ind.Ct.App.2001), trans. denied 774 N.E.2d 516 (Ind.2002).

It is not apparent from the allegations of the complaint and the Pelaks' theory of the case that the Pelaks allege a duty arose based on the creation of a dangerous condition on the premises. Rather, their theory is that a duty arose based on the control Pearson retained as the premises owner. That theory is consistent with § 414 of the Restatement (Second) of Torts.⁵ Therefore, we will address when a premises owner owes a duty of care to an employee of an independent contractor under § 414 of the Restatement. See, e.g., Ross v. Dae Julie, Inc., 341 Ill.App.3d 1065, 275 Ill.Dec. 588, 793 N.E.2d 68 (2003); see also Wajer v. Baltimore Gas and Electric Co., 157 Md.App. 228, 850 A.2d 394, 400 (2004) ("Appellants concentrated on the latent danger element of § 343 and on the amount of control appellees exerted over the three work sites in question, which is indicative of § 414.")

Restatement Section 414

Section 414 provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Section 414 applies where there is retention of control over the operative detail of the work. Wajer, 850 A.2d at 402. Comment c to § 414 discusses the limits of the rule:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

Restatement (Second) of Torts § 414, cmt. c (1965) (emphasis supplied).

There is no persuasive public policy argument for imposing on a landowner a duty to guard a contractor's employees from an instrumentality exclusively controlled by the contractor. Generally, a contractor has the superior experience, equipment, knowledge, staff, and incentive to protect its employees. Teitge v. Remy Const. Co., Inc., 526 N.E.2d 1008, 1012 (Ind.Ct.App.1988). "Chaos would reign supreme on any job where several [entities] with divergent concepts of safety might take seriously their supposed duty to supervise the safety practices of themselves and each other." Id.

Under § 414, if Pearson did not have sufficient control over the property to create a duty, then Pearson was entitled to summary judgment because the Pelaks' negligence claim would fail...