Ramon v. Glenroy Const. Co., Inc., 54A01-9206-CV-181

Citation609 N.E.2d 1123
Decision Date03 March 1993
Docket NumberNo. 54A01-9206-CV-181,54A01-9206-CV-181
PartiesJeffrey B. RAMON and Michelle Ramon, Appellants-Plaintiffs, Grunau Company, Inc., d/b/a Grunau Mechanical Contractors, Appellant-Defendant v. GLENROY CONSTRUCTION COMPANY, INC., Huber Hunt & Nichols, Inc., Ceco Corporation, Appellees-Defendants.
CourtCourt of Appeals of Indiana

Peter B. Stewart, William N. Ivers, Stewart & Irwin, Indianapolis, Larry S. Pugh, Stewart Due Miller & Pugh, Indianapolis, for appellants-plaintiffs.

James L. Petersen, Teresa E. Kofodimos, Ice Miller Donadio & Ryan, Peter A. Schroeder Norris, Choplin & Schroeder, William H. Vobach, Nicholas C. Pappas, Locke Reynolds Boyd & Weisell, Indianapolis, for appellees-defendants.


Jeffrey B. Ramon, his wife, Michelle Ramon, and Grunau Company, Inc. (Grunau), a defendant below, appeal the entry of summary judgments in favor of contractors Glenroy Construction Company, Inc. (Glenroy), Huber Hunt & Nichols, Inc. (HHN), and Ceco Corporation (Ceco), in Ramon's action against the contractors for injuries he sustained while working at the site of the Indiana State Office Building II parking facility, a multi-prime contractor project.

We affirm.

On October 10, 1989, Ramon had been moving tool boxes for Grunau Fire Protection, Inc., his employer and a subcontractor under Grunau, when he encountered a piece of plywood in his path, kicked the plywood aside and fell through an uncovered manhole into a concrete chill water tank, resulting in injury. The parking facility project had no single general contractor who was to be responsible for seeing the project through to completion. Glenroy, HHN and Grunau were each prime contractors. Ceco was a subcontractor of Glenroy. 1

The trial court disposed of Ramon's claims against Glenroy, HHN and Ceco on the ground that these contractors owed no duty of care to Ramon. Grunau also moved for summary judgment but its motion was denied. Grunau now joins Ramon in arguing that summary judgment was inappropriately entered in favor of the appellee contractors. 2

On appeal from the grant or denial of summary judgment we use the same standard in ascertaining the propriety of summary judgment as does the trial court. Newhouse v. Farmers National Bank of Shelbyville (1989), Ind.App., 532 N.E.2d 26, 28. In summary judgment proceedings, the trial court is called upon to derive the matters placed in issue from the pleadings and to examine the forms of admissible evidence sanctioned by Ind.Trial Rule 56(C) which have been made available by the parties. Burke v. Capello (1988), Ind., 520 N.E.2d 439, 440. The probative value of each piece of evidence is then to be determined without setting weight or credibility. Id. Rational assertions of fact and reasonable inferences therefrom are deemed to be true. Id. Summary judgment is appropriate when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. T.R. 56(C).

The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in a light most favorable to the non-movant. Newhouse, 532 N.E.2d at 28; Norman v. Turkey Run Community School Corp. (1980), 274 Ind. 310, 411 N.E.2d 614. When evidence presented by the movant establishes a lack of any genuine issue of material fact, however, the non-movant may not rest upon the mere allegations or denials of his pleadings but must respond by affidavit or by other appropriate evidence, setting forth specific facts to show a genuine issue for trial. Kerr v. Carlos (1991), Ind.App., 582 N.E.2d 860, 865. The failure of the non-movant to offer evidence in opposition to the undisputed facts shown by the evidentiary materials or designate facts establishing a question of fact for trial will permit summary judgment to be entered against him. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1102. This court is not precluded from affirming a summary judgment where the final result is correct although it may have been rendered upon a different theory than that upon which we sustain it. Howard v. H.J. Ricks Construction Co. (1987), Ind.App., 509 N.E.2d 201, 204.

In order to prevail in a negligence action, the plaintiff must provide evidence sufficient to demonstrate the existence of all the requisite elements of a cause of action. Rubin v. Johnson (1990), Ind.App., 550 N.E.2d 324, 329, trans. denied. Hence, a defendant in a negligence action may obtain summary judgment by demonstrating that the undisputed material facts negate at least one element of the plaintiff's claim. Id. at 328.

The contractors maintain that the undisputed facts establish they had no relationship with Ramon from which an obligation might have arisen to conform their conduct to the standard of reasonable care for the benefit of Ramon. The question of whether the law recognizes such an obligation is a legal one for the court. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995. However, Indiana law recognizes that a factual question may be interwoven with the determination of the existence of a relation, making the ultimate question of the existence of a duty a mixed question of law and fact. Clyde E. Williams & Associates v. Boatman (1978), 176 Ind.App. 430, 375 N.E.2d 1138, 1141. A duty might exist, then, if a certain set of facts is found. Northern Indiana Public Service Co. v. East Chicago Sanitary District (1992), Ind.App., 590 N.E.2d 1067, 1072.

At common law, one is not liable for the acts or negligence of another unless the relation of master and servant exists between them. Perry v. Northern Indiana Public Service Co. (1982), Ind.App., 433 N.E.2d 44, 46. Consequently, each prime contractor may be fully responsible for the conduct of work to be performed under its individual contract with the owner, but a prime contractor has no responsibility or authority over work proceeding under the authority of another self-governing prime contractor. See Teitge v. Remy Construction Co. (1988), Ind.App., 526 N.E.2d 1008; Walters v. Kellam & Foley (1977), 172 Ind.App. 207, 360 N.E.2d 199. As a general rule, a prime contractor is not responsible for injuries to employees of its negligent independent subcontractor. Lewis v. Lockard (1986), Ind.App., 498 N.E.2d 1024, 1027, trans. denied; Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, 1147.

However, a party may be charged with a specific nondelegable duty by law or contract. Id. It may also be charged with a duty to use due care in the enforcement of safety regulations, a duty owed by the employer to his employee, where the party has by its conduct voluntarily assumed control of the supervision of safety at the site. 3 Perry, 433 N.E.2d at 49; Boatman, 375 N.E.2d at 1141.

Indiana has adopted as its own all federal occupational safety and health standards. Ind.Code 22-8-1.1-13.1. In addition, the General Assembly has mandated that every employer furnish employment that is safe, furnish and use safety devices, safeguards, methods, and processes which are reasonably adequate to render employment and a place of employment safe, and do every other thing reasonably necessary to protect the safety of the employee. I.C. 22-1-1-10. The commissioner of labor has been authorized and directed to

investigate and adopt rules ... prescribing what safety devices, safeguards, or other means of protection shall be adopted for the prevention of accidents in every employment or place of employment, to determine what suitable devices, safeguards, or other means of protection for the prevention of industrial accidents ... shall be adopted and followed in any or all employments or places of employment, and to adopt rules ... applicable to either employers or employees, or both, for the prevention of accidents ...

I.C. 22-1-1-11(1).

At the time of Ramon's accident, standards adopted by the Indiana Commissioner of Labor pursuant to this authority had been repealed. 11 I.R. 1784 (January 15, 1988). Since Ramon's injury did not occur until October 10, 1989, no right to a cause of action based upon these regulations had vested in him. Martin v. Simplimatic Engineering Corp. (1979), 181 Ind.App. 10, 390 N.E.2d 235, 237. Thus, the numerous cases interpreting and applying these regulations, including Stevens v. Thompson (1988), Ind.App., 525 N.E.2d 353, cited by Ramon, are inapposite. None of these cases, in any event, imposed a statutory duty on a subcontractor of a second prime contractor, such as Ceco, as opposed to a general contractor with authority over the entire project.

Federal standards adopted pursuant to I.C. 22-8-1.1-13.1, IOSHA, have been construed to apply only to the immediate employer of an injured employee. See e.g. Skidmore v. Travelers Ins. Co. (E.D.La., 1973), 356 F.Supp. 670, 672, affirmed, 483 F.2d 67. Only Grunau Fire Protection, Inc. meets that definition as Ramon's employer. More importantly, IOSHA specifically precludes a private right of action based upon the regulations. I.C. 22-8-1.1-48.1.

Whether I.C. 22-1-1-10 provides a basis for imposing a duty in the multi-prime contractor context is a question not easily answered by the case law because the cases all involve application of the regulations which have been repealed. Moreover, while I.C. 22-1-1-11 has been construed to authorize regulations imposing upon prime contractors a duty to ensure compliance with safety regulations for the protection of all workers on a job site, Maynard v. Flanagin Brothers, Inc. (1985), Ind.App., 484 N.E.2d 71, (Staton, J. and Garrard, J. concurring), on rehearing, 490 N.E.2d 1147, trans. denied, I.C. 22-1-1-11, like its federal counterpart, speaks only of employers and "places of employment." Third parties having a direct contractual relationship with the property owner and owner/occupiers...

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