Mile Djuric v. Eggert Builders, Inc., and Matt Anderson d/b/a Anderson Plastering Co.

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Mar 19 2014, 6:39 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ADAM J. SEDIA DANIEL M. COOPER
Rubino, Ruman, Crosmer & Polen DAVID BUROW FLAK
Dyer, Indiana Law Offices of the Liberty Mutual Group
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MILE DJURIC, )
)
Appellant-Plaintiff, )
)
vs. ) No. 45A03-1307-CT-275
)
EGGERT BUILDERS, INC., and )
MATT ANDERSON d/b/a )
ANDERSON PLASTERING CO.,1 )
)
Appellees-Defendants. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable John R. Pera, Judge
Cause No. 45D10-1104-CT-87
March 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
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Although named as a defendant in the action, Anderson did not file an answer to Djuric’s complaint and
has not filed an appellate brief. The trial court entered a default judgment against Anderson. “Under Indiana Appellate
Rule 17(A), ‘[a] party of record in the trial court or Administrative Agency shall be a party on appeal.’” Hoosier
Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 162 (Ind. Ct. App. 2006) (quoting Ind. Appellate Rule
17(A)).
Mile Djuric appeals from the trial court’s order granting summary judgment in favor
of Eggert Builders, Inc. in Djuric’s negligence action against Eggert, contending that
genuine issues of material fact exist, regarding Eggert’s duty and whether the work was
intrinsically dangerous, that precluding the entry of summary judgment.
We affirm.
FACTS AND PROCEDURAL HISTORY
On February 11, 2011, while employed as an independent contractor by Anderson
Plastering Co., a subcontractor hired to do exterior plaster work on a new home, Djuric fell
off the roof of the home and broke both of his legs. Djuric filed a complaint, alleging, in
pertinent part, that Eggert, the general contractor, was negligent and at fault in causing
Djuric to fall and be injured. Djuric was not hired by Eggert, and Eggert was not aware
that Djuric had been hired by Anderson. There was no direct communication between
Djuric and Eggert.
According to Eggert, Anderson was responsible for any safety precautions that were
necessary to complete the work contracted to Anderson. The president of Eggert was out
of the state the week of the accident and had no direct or actual knowledge of the specific
condition of the property on the day of Djuric’s accident.
Anderson failed to respond to Djuric’s complaint, and a default judgment was
entered against Anderson in the amount of $500,000. Eggert filed a motion for summary
judgment, which was granted by the trial court. Djuric now appeals the trial court’s entry
of summary judgment in favor of Eggert.
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DISCUSSION AND DECISION
On appeal from a grant of summary judgment, our standard of review is the same
as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind.
Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559,
562 (Ind. Ct. App. 2005)), trans. denied. We stand in the shoes of the trial court and apply
a de novo standard of review. Id. (citing Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690,
695 (Ind. Ct. App. 2006)). Our review of a summary judgment motion is limited to those
materials designated to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833
N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate
only where the designated evidence shows there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary
judgment purposes, a fact is “material” if it bears on the ultimate resolution of relevant
issues. FLM, 973 N.E.2d at 1173. We view the pleadings and designated materials in the
light most favorable to the non-moving party. Id. Additionally, all facts and reasonable
inferences from those facts are construed in favor of the nonmoving party. Id. (citing
Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied.)
A trial court’s grant of summary judgment is clothed with a presumption of validity,
and the party who lost in the trial court has the burden of demonstrating that the grant of
summary judgment was erroneous. Id. Where a trial court enters specific findings and
conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate
appellate review, but are not binding upon this court. Id. We will affirm upon any theory
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or basis supported by the designated materials. Id. When a trial court grants summary
judgment, we carefully scrutinize that determination to ensure that a party was not
improperly prevented from having his or her day in court. Id.In premises liability cases, such as this, the duty owed by the possessor of the
premises to the employee of an independent contractor is well settled. “Generally, the
owner of property is under no duty to provide an independent contractor with a safe place
to work.” Daisy v. Roach, 811 N.E.2d 862, 866 (Ind. Ct. App. 2004) (citing Messer v.
Cerestar, 803 N.E.2d 1240, 1244 (Ind. Ct. App. 2004)). Nevertheless, an owner of
property does have a duty to maintain the property in a reasonably safe condition for
business invitees, including employees of independent contractors. Id. Restatement
(Second) of Torts § 343 (1965), provides that a possessor of land is subject to liability if
the possessor: (1) knows or should know of a danger and should realize it involves an
unreasonable risk; (2) should expect that invitees will not realize the danger or will not
protect themselves against such danger; and (3) fails to exercise reasonable care to protect
the invitees from danger.
Analyzing the facts of this case under that standard, the trial court properly
concluded that Eggert owed no duty to Djuric. Assuming for the sake of argument that
Eggert would have discovered the condition of the property, i.e., snow on the roof, had he
been in town on that date, the designated evidence reflects that Eggert should not have
realized that the condition would present an unreasonable risk of harm. Eggert had no
expectation that Anderson or Djuric would attempt to work in any condition that presented
a danger instead of waiting for the conditions to change. The designated evidence reveals
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that Anderson, and by extension his independent contractor, Djuric, was going to attempt
to begin work on the job on the date of the incident. Thus, there was an inference that work
would not start if they were unable to begin. Anderson agreed, pursuant to its contract with
Eggert, to take all necessary safety precautions. Thus, it was reasonable for Eggert to
expect that before any work was attempted potential danger could be eliminated and
appropriate safety measures would be taken by Anderson.
Looking at the second part of this three-part test, there is no genuine issue of material
fact as to a breach of duty on Eggert’s part. The condition of the snow on the roof was
open and obvious to anyone who saw the roof. Eggert was reasonable in its expectation
that any dangers associated with the condition would be discovered and realized by both
Anderson and Djuric before anyone climbed on the roof. Eggert had no reason to expect
that a person hired to work on the roof would fail to take necessary safety precautions to
protect against potential danger. One of the precautions available to Anderson and Djuric
was to avoid working on the roof at all that day.
Eggert made no assertions to Anderson or Djuric that the roof would be cleared of
snow. The designated evidence does not suggest that Eggert failed to exercise reasonable
care. Consequently, Eggert did not breach any part of the standard of care required of
possessors of premises to business invitees.
The cases cited by Djuric in support of his argument are also unpersuasive as they
are distinguishable. In Swan Lake Holdings, LLC. v. Hiles, 888 N.E.2d 265 (Ind. Ct. App.
2008), a rotten beam collapsed when Hiles stepped on it while working to repair an
overhang. The evidence in that case showed that the possessor of the premises should have
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known of the condition, i.e., a leaking roof causing beams to rot, and should have expected
that Hiles, the business invitee, would not discover the condition and be able to take safety
measures. Id. at 271. In the present case, however, the snow on the roof was open and
obvious such that it was easily discoverable by Djuric, allowing him to protect himself
from danger.2
Djuric also maintains that summary judgment in favor of Eggert is inappropriate
because there is a genuine issue of material fact concerning whether the nature of Djuric’s
work was intrinsically dangerous or involved a particular risk. We stated the following in
Daisy:
As a general rule, a principal is not liable for the negligence of an
independent contractor whom he employs. However, five exceptions to the
general rule have been recognized: (1) where the contract requires the
performance of intrinsically dangerous work; (2) where the principal is by
law or contract charged with performing the specific duty; (3) where the act
will create a nuisance; (4) where the act to be performed will probably cause
injury to others unless due precaution is taken; and (5) where the act to be
performed is illegal. “Duties associated with the five exceptions are
considered non-delegable, and the principal is liable for the negligence of the
contractor because the responsibilities are deemed ‘so important to the
community’ that the principal should not be permitted to transfer those duties
to another.”
811 N.E.2d at 864-65 (internal citations omitted). Djuric’s contentions direct us to
exceptions (1) and (4).
2
The other case cited by Djuric is an unpublished, federal district court decision,
Schnitzmeyer v. Indiana Railroad Co., 2011 WL 338866 (S.D. Ind. Jan. 28, 2011).
Unpublished decisions and decisions on Indiana law issued by federal district courts do not
constitute binding precedent upon this court. Kuehne v. United Parcel Serv., Inc., 868
N.E.2d 870, 874 (Ind. Ct. App. 2007). They will be considered and mentioned when the
issues involved are similar and there is a paucity of authority on the matter. Id. Such is
not the case here.
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Djuric asserts that the work, i.e., clearing the snow, was intrinsically or inherently
dangerous. However, he does not contend that the work for which he was hired, plaster
work, was intrinsically dangerous. The contract at issue did not require him to perform the
work of clearing snow. Eggert did not require that the plastering work be done while there
was snow on the roof. Additionally, Eggert stated that the work could be done over a time
period allowing Anderson and Djuric to return to begin the work when there was no snow
on the roof.
Under exception (4), the peculiar risk doctrine applies “where, at the time of the
making of the contract, a principal should have foreseen that the performance of the work
or the conditions under which it was to be performed would, absent precautionary
measures, probably cause injury.” Id. at 865 (quoting Bagley v. Insight Commc’ns Co.,
L.P., 658 N.E.2d 584 N.E.2d 584, 588 (Ind. 1995)). In this case, however, there was no
way to foresee at the time Eggert contracted with Anderson that the work would be
attempted on a day in the future when there would be snow. Furthermore, the contract
provided that Anderson and Djuric would perform plaster work, not snow-clearing work.
The trial court did not err in granting summary judgment in favor of Eggert.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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