PSI Energy, Inc. v. Roberts

• Decision Date: 28 January 2004
• Docket Number: No. 49A02-0210-CV-883.,49A02-0210-CV-883.
• Citation: 802 N.E.2d 468
• Parties: PSI ENERGY, INC., Appellant-Defendant, v. William Lee ROBERTS, Jr., and Beverly Roberts, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

802 N.E.2d 468

PSI ENERGY, INC., Appellant-Defendant, v. William Lee ROBERTS, Jr., and Beverly Roberts, Appellees-Plaintiffs.

No. 49A02-0210-CV-883.

Court of Appeals of Indiana.

January 28, 2004.

Transfer Granted May 21, 2004.

Robert K. Stanley, Kevin M. Toner, Kathy L. Osborn, Meg A. Gallmeyer, Baker & Daniels, Indianapolis, IN, Eric M. Cavanaugh, Plainfield, IN, Attorneys for Appellant.

Linda George, W. Russell Sipes, Laudig George Rutherford & Sipes, Indianapolis, IN, Attorneys for Appellees.

OPINION

SHARPNACK, Judge.

In this case, PSI Energy, Inc. ("PSI") seeks to reverse the judgment against it in favor of William L. Roberts, Jr., and Beverly Roberts (collectively, the "Robertses"), which was rendered after a jury returned a verdict for the Robertses and against PSI.¹ PSI contends that the evidence is insufficient to support the verdict under either of the theories upon which the jury was instructed and brings the appeal from the trial court's denial of PSI's motions for judgment on the evidence and motion to correct error.

The essence of the theories upon which the case was tried is embodied in Final Instructions 18, 19, and 20. Final Instruction 18 reads:

A landowner has a common law duty to exercise due care to keep its property in a reasonably safe condition for employees of independent contractors. The landowner in such case has an affirmative duty to exercise ordinary care to keep its property in a reasonably safe condition consistent with the purpose of the landowner's invitation to the independent contractor.

In this case, a landowner would be liable for physical harm to Mr. Roberts, by a condition on its property, if Plaintiffs prove each of the following:

(a) The landowner knew or by the exercise of reasonable care should have discovered the condition, and should have realized that it involved an unreasonable risk of harm to Mr. Roberts;

(b) The landowner should have expected that Mr. Roberts would not discover or realize the danger, or would fail to protect himself against it;

(c) The landowner failed to exercise reasonable care to protect Mr. Roberts against the danger; and

(d) The Landowners' breach proximately caused Mr. Roberts' disease.

Appellant's Appendix at 199. In conjunction with Final Instruction 18, Final Instruction 19 provides that:

In determining whether a Premises Defendant breached its duty to Mr. Roberts when he was present on the landowner's premises as an employee of an independent contractor it is appropriate to take into account the comparative knowledge of the Premises Defendant and Mr. Roberts. A Premises Defendant is not liable to Mr. Roberts for physical harm caused to him by any activity or condition on the land whose danger is known or obvious to him, unless the Premises Defendant should anticipate the harm despite such knowledge or obviousness.

Id. at 200.

Final Instruction 20 reads:

As a general rule, a landowner is not liable for the negligence of an independent contractor. A non-delegable duty may be imposed on the landowner, however, if one of the following two exceptions applies.

First, the law imposes a duty on a landowner if the work to be performed is intrinsically dangerous. Work is "intrinsically dangerous" if the danger exists in the doing of the activity regardless of the method used. The work is intrinsically dangerous if the risk of injury cannot be eliminated or significantly reduced by taking proper precautions.

Second, the law imposes a duty on a landowner if the work to be performed will probably cause injury to others unless due precautions are taken to avoid harm. The essence of this exception is the foreseeability of both the peculiar risk involved in the work and the need for special precautions. For purposes of this exception, the phase "peculiar risk" refers to the risk of a particularized harm specific to the work being performed or the conditions under which it is performed. Moreover, the exception applies only when the risk involved is something more than the routine and predictable hazards generally associated with a given occupation: it must be a risk unique to the circumstances of a given job.

The plaintiffs have the burden of proof to establish that at least one of these two exceptions applies and that Mr. Roberts' disease was proximately caused by the breach of such duty.

Id. at 201.

PSI does not question the instructions as incorrect statements of the law, but, as we have noted, claims the evidence is insufficient to support giving any of the instructions or to support the jury's verdict. Our review brings us to the conclusion that there is sufficient evidence to support the jury's verdict and the judgment against PSI upon the law as stated in Final Instructions 18 and 19. We therefore affirm without considering the appeal as to the sufficiency of the evidence on the theory presented in Final Instruction 20.² See, e.g., Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1220-1221 (Ind.1988)

(holding that an appellant's challenge to the trial court's denial of a motion for judgment on the evidence failed because "a challenge to the sufficiency of the evidence must demonstrate inadequate evidence under every theory of liability, not merely one of many, before prejudice is established" and "[a] general verdict will be sustained if the evidence is sufficient to sustain any theory of liability").

Relevant Facts

This litigation arises from the diagnosis of William L. Roberts, Jr., ("Roberts") with peritoneal mesothelioma as a result of his exposure to asbestos during his employment as an insulator.³ In 1958, Roberts joined Local 18 of the Asbestos Union and was employed by Armstrong Contracting and Supply Company ("ACandS") as an insulator. ACandS was the nation's largest insulation contractor. Roberts was employed by ACandS from 1958 through 1986 and again from 1989 through 1991. Roberts retired in 1992, but continued to work part-time until 1997. During his employment, Roberts routinely worked with asbestos insulation. Roberts knew that he was working with asbestos insulation and, in fact, could recognize asbestos when he saw it because of his experience and training.

A link between asbestos exposure and mesothelioma was established as early as the 1940's and 1950's. Roberts received magazines from his asbestos workers' union beginning in 1958. Articles in the magazines urged the use of safety equipment, and "green sheets" included with the magazines from 1969 through 1976 discussed asbestos-related health problems. In the early 1960's, Indiana adopted a construction safety code and an exposure limitation of 5 million particles per cubic foot of air ("mppcf") for asbestos. In the early 1970's, with the promulgation of the Occupational Safety and Health Act of 1970, the Occupational Safety and Health Administration ("OSHA") adopted asbestos exposure limits. However, Roberts testified that, early in his career, ACandS "didn't furnish masks or anything, so we just covered our faces with handkerchiefs, if it was really bad, or we used our T-shirts." Transcript at 2720. "[I]n the `70s sometime," ACandS started supplying masks for the employees. Id. at 2901-2902. However, Roberts testified that he did not learn the true dangers of asbestos until the 1980's. He noticed that asbestos products were being phased out, but no one told him it was for safety reasons. The evidence presented at trial indicated that ACandS was aware of asbestos-related health problems in the early 1960's.

During Roberts's employment as an insulator, he often worked at various generating stations owned by PSI, including the Dresser, Cayuga, Edwardsport, Noblesville, and Wabash River generating stations. In fact, Roberts testified that he "spent most of the `60s and `70s working in the powerhouse units." Id. at 2808-2809; id. at 2901 (Roberts noted that he spent "probably 70 or more percent" of his time in the 1960's and 1970's at the PSI generating stations). All five of the generating stations contained asbestos insulation.

In the late 1960's and into the 1970's, Roberts often worked at PSI's Dresser generating station. According to Roberts, the asbestos insulation at Dresser was in very poor condition, torn up, and "raggy." Id. at 2740. In addition to exposure to asbestos as a result of his own work at PSI, Roberts was also exposed to asbestos as a result of the work of PSI employees and other PSI contractors. For example, the boiler was often damaged, making it necessary for PSI employees to remove and dispose of asbestos insulation that was damaged. Numerous barrels of asbestos insulation were removed, causing asbestos dust. Roberts and others worked nearby without protective clothing, masks, or respirators. No one from PSI told Roberts to protect himself or ACandS to protect its employees from the airborne asbestos dust that the PSI employees were generating from their own work. Roberts was also exposed to asbestos in 1973 when other PSI contractors were performing demolition work at the Dresser plant. The salvage crew allowed pipes covered in asbestos insulation to fall to the ground where the asbestos insulation "just literally exploded" and "flew off" of the pipes. Id. at 2748-2749.

While working at PSI's Cayuga generating plant in the late 1960's and early 1970's, Roberts was also exposed to asbestos as the result of the activities of PSI's own employees. Specifically, Roberts was exposed to airborne asbestos fibers when PSI employees drilled holes in asbestos pipe covering, PSI's traveling maintenance crew performed work at Cayuga, and PSI's maintenance people ground gaskets and otherwise caused asbestos materials to break apart while working over his head. Moreover, it was common at PSI to have asbestos insulation materials lying around on the floor until a PSI employee cleaned them up. While the insulation was lying on the floor, it was broken up and spread to lower floors through the vast areas of grating, which acted like a "cheese...