Wingett v. Teledyne Industries, Inc.

• Decision Date: 19 June 1985
• Docket Number: No. 685S240,685S240
• Citation: 479 N.E.2d 51
• Parties: Lon A. WINGETT, Appellant, v. TELEDYNE INDUSTRIES, INC., Donald F. Severs and F.D. Ramsey and Company, Inc., Appellees.
• Court: Indiana Supreme Court

Page 51

479 N.E.2d 51

Lon A. WINGETT, Appellant, v.TELEDYNE INDUSTRIES, INC., Donald F. Severs and F.D. Ramsey and Company, Inc., Appellees.

No. 685S240.

Supreme Court of Indiana.

June 19, 1985.

Edward A. Chapleau, David C. Chapleau, South Bend, for appellant.

Leon R. Kaminski, Mark A. Lienhoop, Newby, Lewis, Kaminski & Jones, LaPorte, for Donald F. Severs and F.D. Ramsey and Co., Inc.

Jon.F. Schmoll, Robin D. Pierce, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for Teledyne Industries, Inc.

GIVAN, Chief Justice.

This cause comes before the Court on appellees' Petitions for Transfer.Appellant filed suit against appellees for damages based on injuries he suffered while removing ductwork in a foundry.The trial court granted summary judgment in favor of appellees.The Court of Appeals, in an unpublished memorandum decision, reversed the trial court and remanded for a trial on the merits.Wingett v. Teledyne Industries, Inc. (1984), Ind.App., 466 N.E.2d 497.We grant appellees' petitions and thereby vacate the opinion of the Court of Appeals.

Appellant was injured while engaged in the removal of ductwork from the Teledyne Castings Plant in LaPorte, Indiana.The ductwork was manufactured by appelleeF.D. Ramsey and Company, Inc.(Ramsey) and installed in 1975 by Ramsey and appelleeDonald F. Severs(Severs).Its function was to collect dust and sand from machinery used in the foundry owned by appelleeTeledyne Industries, Inc.(Teledyne).

In 1980 Teledyne hired an independent contractor, Tonn and Blank Construction Company(Tonn and Blank), to remove and demolish the existing ductwork and install a new sand reclamation system.Appellant, a journeyman ironworker, was hired by Tonn and Blank to be a member of the demolition crew.Tonn and Blank was in complete control of the work site as Teledyne closed the foundry during the removal process.

The existing ductwork, approximately thirty inches in diameter, was made of one-half inch gauge steel.Manufactured in segments, it was connected at the end of each segment by an iron collar through which bolts were inserted.The ductwork, which hung twenty-five to thirty feet above the floor, was supported by aluminum hangers attached to the foundry ceiling and located at six to eight-foot intervals.

The removal procedure employed by appellant, under the supervision of Tonn and Blank, was to proceed out onto the ductwork, wrap a cable around it, and attach the cable to a crane.While sitting on the ductwork, appellant would cut the aluminum hangers with an acetylene torch.Affidavits submitted by appellant and two co-workers alleged that the crane supported the ductwork.

On June 30, 1980, appellant was engaged in this procedure.He crawled out onto a section of ductwork, and while sitting on it, proceeded to cut the aluminum hangers.Upon cutting the second of two hangers supporting the segment on which he was sitting, the segment of ductwork and appellant fell to the floor.Appellant's co-workers who inspected the fallen segment observed that it had been connected by a one-eighth inch sheet metal band, sheet metal screws and two clamps rather than an iron collar.

Appellant contends that this allegedly defective connection was the proximate cause of his injuries.He filed suit alleging that Teledyne was negligent in failing to provide him with a safe place to work and in failing to warn him that the work site was dangerous and unsafe.He then amended his complaint to include Ramsey and Severs, based on a theory of strict liability in tort.

After discovery was conducted, appellees moved for summary judgment, which was granted by the trial court.The court found as to Ramsey and Severs, that the ductwork had performed its intended purpose reasonably well and that Ramsey and Severs could not have reasonably foreseen that the ductwork would be used to support a man removing the hangers.As to Teledyne, the court found it had no knowledge of any dangerous conditions and could not with any reasonable degree of care have learned of such conditions.As to appellant, the court found he was contributorily negligent as a matter of law.

A divided Third District of the Court of Appeals determined summary judgment to be inappropriate and remanded for a trial on the merits.The majority found that the affidavits, as well as appellant's statement that the removal method was the standard procedure used in the trade, raise a genuine issue of material fact regarding the reasonable use of the ductwork by appellant and the foreseeability by the manufacturer that the ductwork would be removed using this procedure.The court further found that based on appellant's allegation that this was the standard procedure in the trade for duct removal, a question of fact exists whether the ductwork was a dangerous instrumentality and whether Teledyne, using ordinary care, should have known of the danger and warned appellant.

As stated by Judge Hoffman in his dissent, this case involves purely legal questions properly resolved by the trial judge.

A motion for summary judgment shall be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.Ind.R.Tr.P. 56(C);Bell v. Northside Finance Corp. (1983), Ind., 452 N.E.2d 951.The movant has the burden of proving the nonexistence of a genuine issue of material fact, and the motion should be resolved in favor of the party opposing it if there is any doubt as to the existence of a material factual issue.Bell, supra;Woodward Insurance, Inc. v. White (1982), Ind., 437 N.E.2d 59.Nevertheless, the non-moving party must come forward with probative evidence to controvert a showing by the movant that no triable issue of fact exists for adjudication.Ind.R.Tr.P. 56(E);Raymundo v. Hammond Clinic Assoc. (1983), Ind., 449 N.E.2d 276.Appellant, the non-moving party, has not presented such evidence relative to either of his claims.

Appellant's negligence claim against Teledyne was premised on the common law duty owed by landowners to business invitees.The question of whether a common law duty exists is a matter of law.Hurst v. Board of Commissioners of Pulaski County (1985), Ind., 476 N.E.2d 832;Miller v. Griesel(1974), 261 Ind. 604, 308 N.E.2d 701.The court must determine whether the law recognizes any obligation on the part of a defendant to conform his conduct to a certain standard for the benefit of the plaintiff.Miller, supra;Neal v. Home Builders, Inc.(1953), 232 Ind. 160, 111 N.E.2d 280(duty arises as matter of law out of relation existing between the parties).

Generally, a landowner has a common law duty to exercise care to keep his property in a reasonably safe condition for business invitees, including employees of independent contractors.Plan-Tec, Inc. v. Wiggins (1983), Ind.App., 443 N.E.2d 1212;seeLouisville Cement Co. v. Mumaw (1983), Ind.App., 448 N.E.2d 1219(employees of independent contractor are business invitees)."The basis of liability of the inviter for failing to render the premises reasonably safe for the invitee must be predicated upon the superior knowledge of the inviter of the dangers of the premises."Hoosier Cardinal Corp. v. Brizius(1964), 136 Ind.App. 363, 377, 199 N.E.2d 481, 487-88, trans. denied (emphasis added);seeCurl v. Bethlehem Steel Corp(1979), 181 Ind.App. 132, 390 N.E.2d 709.

Appellant contends Teledyne must be imputed to have had superior knowledge.He argues the ductwork had been in the foundry for five years and when installed was not covered by the layer of dust and soot which he contends caused the alleged defect to be hidden.The crux of his argument is that Teledyne, in exercising reasonable care, should have discovered the allegedly defective connection and, reasonably foreseeing appellant would be employing the removal method used, should have warned him that the ductwork was a dangerous instrumentality.

Yet appellant has not presented evidence to show Teledyne had the superior knowledge of the allegedly dangerous condition of the ductwork upon which its liability must be predicated.Curl, supra;Hoosier Cardinal, supra.Teledyne did not specify, by contract or otherwise, the method of removal to be employed by Tonn and Blank.No Teledyne employees were present in the foundry while the demolition crew was working.Tonn and Blank was in complete control of the ductwork at that time.Appellant's activities were directly supervised by Tonn and Blank who was, along with appellant, in a position to discover any...