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Myers v. Bremen Casting, Inc.

Court of Appeals of Indiana

September 28, 2016

Larry Myers and Loa Myers, Appellants-Plaintiffs,
v.
Bremen Casting, Inc., and Mastic Home Exteriors, Inc., Appellees-Defendants.

         Appeal from the Marion Superior Court The Honorable Timothy W. Oakes, Judge Trial Court Cause No. 49D02-1405-MI-14372

          ATTORNEYS FOR APPELLANTS Linda George Kathleen A. Farinas Todd Barnes Sarah Broderick George & Farinas, LLP Indianapolis, Indiana

          ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION Jeffrey A. Hammond Cohen & Malad, LLP Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE BREMEN CASTING, INC. Keith D. Mundrick Susan E. Mehringer Dennis F. Cantrell Cantrell Strenski & Mehringer, LLP Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE MASTIC HOME EXTERIORS, INC. John McCauley Meaghan Klem Haller Greg Neibarger Bingham Greenebaum Doll, LLP Indianapolis, Indiana

          Robb, Judge.

         Case Summary and Issue

         [¶1] Larry Myers spent the majority of his career working as an electrician in primarily industrial and commercial spaces, and during this time, Larry was exposed to asbestos. In February 2014, doctors diagnosed Larry with mesothelioma. Thereafter, Larry and his wife, Loa, filed a complaint alleging negligence against numerous product manufacturers and premises owners, including Bremen Casting, Inc. ("Bremen") and Mastic Home Exteriors, Inc. ("Mastic") (collectively, the "Defendants").[1] Specifically, the Myerses allege the Defendants are (1) vicariously liable for the acts of the employees of their independent contractors under the non-delegable duty doctrine, (2) vicariously liable for the acts of their own employees under the doctrine of respondeat superior, and (3) liable as premises owners. The Defendants each moved for summary judgment, and the trial court partially granted each motion. On the motion of all parties, the trial court's orders were certified for interlocutory appeal and this court accepted jurisdiction and consolidated the appeals under a single cause number, designating the Myerses as Appellants/Cross-Appellees[2] and the Defendants as Appellees/Cross-Appellants.

         [¶2] On appeal, the Myerses argue the trial court erred in granting summary judgment in favor of the Defendants on the Myerses' vicarious liability claim under the non-delegable duty doctrine and premises liability claim; on cross-appeal, the Defendants argue the trial court erred in denying their motions for summary judgment on the Myerses' respondeat superior claim. Therefore, we consolidate and restate the issues before us as whether the trial court erred in granting in part and denying in part the Defendants' motions for summary judgment. We conclude: (1) the trial court erred in granting the Defendants summary judgment on the Myerses' vicarious liability claim pertaining to the negligence of independent contractors, (2) the trial court did not err in denying the Defendants summary judgment on the Myerses' respondeat superior claim, and (3) the trial court erred in granting the Defendants summary judgment on the Myerses' premises liability claim. We therefore affirm in part, reverse in part and remand for further proceedings on the Myerses' claims.

         Facts and Procedural History

         [¶3] Between 1961 and 1980, Koontz-Wagner Electric ("Koontz") employed Larry as an electrician. During this time, the Defendants hired Koontz as an independent contractor to perform electrical work at the Defendants' facilities. While working at the Defendants' facilities, Larry worked alongside the Defendants' employees as well as the employees of other independent contractors hired by the Defendants. As an electrician, Larry's duties generally included installing and maintaining wire, conduit, light fixtures, transformers, junction boxes, and circuit breakers. In carrying out these duties, Larry occasionally worked near asbestos insulation and with products containing asbestos. Larry was not warned of the dangers associated with asbestos exposure. In addition, he was neither trained nor hired to handle asbestos, and he did not wear any protective gear. Larry claims he was exposed to asbestos by inhaling asbestos dust as a result of the Defendants' failure to maintain their premises in reasonably safe condition, and as a result of the acts of the Defendants' employees and the acts of other independent contractors' employees.[3] In the 1990s, Larry learned asbestos could be dangerous. In 2014, doctors diagnosed Larry with malignant pleural mesothelioma, citing Larry's exposure to asbestos.

         [¶4] Following Larry's diagnosis, the Myerses filed a complaint naming nearly forty defendants, including Bremen and Mastic. In the complaint, the Myerses alleged the Defendants negligently hired their independent contractors and were vicariously liable as principals and further liable as premises owners. As to the vicarious liability claims, the Myerses alleged the Defendants' own employees and the employees of their independent contractors negligently exposed Larry to asbestos. The Myerses do not allege Larry's employer, Koontz, is negligent, nor do they allege the Defendants negligently hired Koontz. To be clear, the Myerses only claim the Defendants' employees and independent contractors negligently exposed Larry to asbestos. As to the premises liability claim, the Myerses alleged the Defendants knew or should have known the dangers associated with asbestos, failed to warn Larry of the danger, and therefore failed to maintain the premises in a reasonably safe condition.

         [¶5] The Defendants then each moved for summary judgment on all three claims, arguing they could not be held vicariously liable under respondeat superior or the non-delegable duty doctrine because Larry was an employee of an independent contractor injured by the very condition he was employed to address and further arguing they could not be held liable as premises owners because they did not have superior knowledge of the risks associated with asbestos. In two separate orders, the trial court-relying primarily upon our supreme court's decision in PSI Energy, Inc. v. Roberts, 829 N.E.2d 943 (Ind. 2005), abrogated in part by Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345 (Ind. 2006)-concluded as a matter of law the Defendants could not be held liable for the acts of their independent contractors under the non-delegable duty doctrine and could not be held liable as premises owners and entered partial summary judgment in favor of the Defendants on those two claims. In denying summary judgment on the respondeat superior claim, however, the trial court concluded a genuine issue of material fact existed as to whether the acts of the Defendants' employees exposed Larry to asbestos. This appeal and cross-appeal ensued.

         Discussion and Decision

          I. Standard of Review

         [¶6] When we review a grant or denial of a motion for summary judgment, our standard of review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). The moving party carries the burden of showing there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Id. In Indiana, unlike federal practice, the moving party will not prevail by merely showing the party carrying the burden of proof lacks evidence on a necessary element. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Rather, "we impose a more onerous burden: to affirmatively 'negate an opponent's claim.'" Id. (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). If the moving party carries its burden, then the non-moving party must present evidence establishing the existence of a genuine issue of material fact. Knighten, 45 N.E.3d at 791. In deciding whether summary judgment is proper, we consider only the evidence the parties designated to the trial court. See Ind. Trial Rule 56(C), (H). We construe all factual inferences in favor of the non-moving party and resolve all doubts regarding the existence of a material issue against the moving party. Knighten, 45 N.E.3d at 791. Indiana's heightened summary judgment standard "consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Hughley, 15 N.E.3d at 1004. "In negligence cases, summary judgment is rarely appropriate. This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person- one best applied by a jury after hearing all of the evidence." Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations omitted).

         II. Vicarious Liability

         [¶7] Generally, a plaintiff claiming negligence must show a duty owed to the plaintiff by the defendant, a breach of that duty, and a compensable injury proximately caused by the breach. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). "Absent a duty there can be no negligence or liability based upon the breach." Id. Vicarious liability creates "indirect legal responsibility" whereby "a court can hold a party legally responsible for the negligence of another, not because the party did anything wrong but rather because of the party's relationship to the wrongdoer." Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999) (citation omitted). Courts employ various legal doctrines to hold people vicariously liable, including the non-delegable duty doctrine and the doctrine of respondeat superior. Id.

         [¶8] The Myerses brought vicarious liability claims against the Defendants alleging the Defendants were liable for the negligence of the employees of their independent contractors under the non-delegable duty doctrine and for the negligence of their employees under respondeat superior. In partially granting the Defendants' motion for summary judgment on the vicarious liability claims, the trial court concluded the Defendants did not owe a duty to Larry with respect to the negligence of the Defendants' independent contractors' employees, but did owe a duty to Larry with respect to the negligence of the Defendants' own employees. On appeal, much of the parties' briefs are dedicated to arguing the proper interpretation and application of our supreme court's decision in Roberts, which we address below. The parties agree Larry was an employee of Koontz, Koontz was hired to perform electrical work at the Defendants' facilities, and Larry worked alongside other independent contractors' employees and the Defendants' employees while on the Defendants' premises. See Appellees' Br. at 9. The parties dispute, however, whether the Defendants owed Larry, the employee of an independent contractor, a duty of care to protect him from the negligent acts of their employees and their independent contractors' employees. Whether a duty exists is question of law, but determining whether a duty exists may be dependent upon underlying facts that must be resolved by the trier of fact. BSA Constr. LLC. v. Johnson, 54 N.E.3d 1026, 1029 (Ind.Ct.App. 2016), trans. denied.

         A. Holding a Principal Liable for Independent Contractor ...


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