Robinson v. Kinnick

• Decision Date: 30 November 1989
• Docket Number: No. 53A01-8908-CV-299,53A01-8908-CV-299
• Citation: 548 N.E.2d 1167
• Parties: Gene E. ROBINSON, Plaintiff-Appellant, v. Chris T. KINNICK and Laura Kinnick, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1167

548 N.E.2d 1167

Gene E. ROBINSON, Plaintiff-Appellant, v. Chris T. KINNICK and Laura Kinnick, Defendants-Appellees.

No. 53A01-8908-CV-299.

Court of Appeals of Indiana,

First District.

Nov. 30, 1989.

Rehearing Denied Jan. 11, 1990.

Richard D. Schreiber, Schreiber & Sevenish, Indianapolis, for plaintiff-appellant.

Mark R. Smith, Jennings & Maas, Indianapolis, for defendants-appellees.

BAKER, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Gene E. Robinson (Robinson), appeals the entry of an adverse summary judgment in favor of defendant-appellants, Chris T. Kinnick and his wife Laura Kinnick (the Kinnicks), on his suit to recover for the personal injuries he sustained when he fell from the roof of the Kinnicks' home.

We affirm.

STATEMENT OF THE FACTS

In late January, or early February, 1985, Robinson was hired by the Kinnicks as an independent contractor to aid in the construction of their personal residence. Specifically, Robinson was hired to perform roofing work on the home. Early in the morning of February 28, 1985, Robinson climbed a ladder in order to get to the back part of the roof where he was to continue shingling that day. Although Robinson observed water, frost, and ice on the roof's surface, he proceeded to shingle. While in the process of carrying a bundle of shingles across the roof, Robinson slipped on Thereafter, Robinson filed a complaint against the Kinnicks in order to recover for the personal injuries he sustained from the fall. In his complaint, Robinson alleged the Kinnicks had been negligent in failing to provide him with adequate safety equipment or proper supervision and in permitting him to work on the roof when they should have known it was not safe due to the inclement weather conditions. The Kinnicks subsequently filed a motion for summary judgment alleging that they owed no duty to provide Robinson with safety equipment or supervise his work. Further, they asserted that Robinson had superior knowledge of any allegedly dangerous conditions on the roof absolving them of any duty with respect thereto. Following a hearing, the trial court granted the Kinnicks' motion for summary judgment. Robinson subsequently instituted this appeal.

an accumulation of ice, slid down the roof, and fell 26 feet to the ground.

ISSUES

Robinson raises the following issues for our review:

I. Whether the Kinnicks voluntarily or gratuitously assumed a duty to provide a safe work place to Robinson.

II. Whether the Kinnicks owed a duty to provide Robinson a safe place to work under IND.CODE 22-1-1-10.

DISCUSSION AND DECISION

The rules governing summary judgment are well settled. In reviewing a motion for summary judgment, we apply the same standard as that employed by the trial court. Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits and testimony, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Howard v. H.J. Ricks Construction Co., Inc. (1987), Ind.App., 509 N.E.2d 201, trans. denied. The party seeking summary judgment has the burden of demonstrating the absence of a genuine issue of material fact. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51. If there is any doubt as to the existence of a material factual issue, the motion should be resolved in favor of the nonmovant. In ascertaining the existence of any doubt, the contents of all pleadings, papers, and affidavits are liberally construed in favor of the nonmovant. Bell v. Northside Finance Corp. (1983), Ind., 452 N.E.2d 951. We will reverse only if the record discloses an unresolved issue of fact or an incorrect application of the law to undisputed facts. Morris v. Lyons Capital Resources, Inc. (1987), Ind., 510 N.E.2d 221.

In his complaint, Robinson asserted the Kinnicks were negligent in failing to exercise due care for his safety. It is axiomatic that in order to recover on a theory of negligence, a plaintiff must establish that there existed a duty on the part of the defendant in relation to the plaintiff. Whether a duty exists is a question of law for the court. State v. Flanigan (1986), Ind.App., 489 N.E.2d 1216. Absent a duty, there can be no actionable negligence based upon a breach of such.

As a general rule, an owner of property is not required to provide an independent contractor with a safe place to work. Howard, supra; Hoosier Cardinal Corp. v. Brizius (1964), 136 Ind.App. 363, 199 N.E.2d 481, 486, trans. denied. Robinson contends, however, that the Kinnicks gratuitously or voluntarily assumed a duty to provide him with a safe work place. In support of this contention, he cites Plan-Tec, Inc. v. Wiggins (1983), Ind.App., 443 N.E.2d 1212.

A duty of care may arise where one party assumes such a duty, either gratuitously or voluntarily. Plan-Tec, supra; Clyde E. Williams & Associates, Inc. v. Boatman (1978), 176 Ind.App. 430, 375 N.E.2d 1138, trans. denied. The assumption of a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person. Id. Whether a party has assumed a duty and the extent of that duty, if any, are questions for the trier of fact. Perry v. Northern Indiana Public Service Co. (1982), Ind.App., 433 N.E.2d 44, trans. denied.

In several instances our courts have determined that there existed sufficient facts of probative value to create a jury question regarding whether a party gratuitously assumed a duty to provide a safe work place to another. Perry, supra; Plan-Tec, supra; Phillips v. United Engineers (1986), Ind.App., 500 N.E.2d 1265.

In Perry, a contractor's employee was seriously injured when he fell from an elevated fan housing where he had been sent to work without scaffolding or other safety equipment. Although the defendant-property-owner did not contractually undertake the duty of job site safety, this court held that by its actions it nevertheless may have assumed such a duty. In reversing the entry of summary judgment in favor of the defendant, this court concluded that the fact that the property owner held regular safety meetings for employees of subcontractors and employed safety men with jurisdiction of the safety program on the job site, presented sufficient evidence to allow the question of assumption of a duty to go to the jury.

In Plan-Tec, an employee of a subcontractor was injured when scaffolding upon which he was working to modify the exterior skin of a building collapsed and fell to the ground. Plan-Tec, the construction manager of the project, had not contractually agreed to provide on the job safety. This court, however, found that several facts presented sufficient evidence to create a factual issue to the jury as to the assumption of that duty. Specifically, Plan-Tec had appointed a safety director for the job site, held weekly safety meetings, issued directives instructing contractors to observe certain safety precautions on the job site, and inspected the scaffolding each morning before contractors were permitted to work on the project.

In Phillips, the decedent was fatally injured when he fell 119 feet from an unfinished catwalk where he had been installing sheet metal siding. The defendant-construction engineer of the project appointed a "safety coordinator" for the job site who conducted bi-weekly safety meetings for superintendents of contractors. The safety coordinator also conducted tours of the job site during which he noted safety violations and unsafe practices and after which he advised the violator by letter to remedy the problem. The Phillips court determined that this evidence was sufficient to present to a jury the question of whether the defendant had assumed a duty...