Larry Myers and Loa Myers v. Bremen Casting, Inc., and Mastic Home Exteriors, Inc.

FILED
Sep 28 2016, 5:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Linda George BREMEN CASTING, INC.
Kathleen A. Farinas Keith D. Mundrick
Todd Barnes Susan E. Mehringer
Sarah Broderick Dennis F. Cantrell
George & Farinas, LLP Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE ATTORNEYS FOR APPELLEE
INDIANA TRIAL LAWYERS ASSOCIATION MASTIC HOME EXTERIORS, INC.
Jeffrey A. Hammond John McCauley
Cohen & Malad, LLP Meaghan Klem Haller
Indianapolis, Indiana Greg Neibarger
Bingham Greenebaum Doll, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Myers and Loa Myers, September 28, 2016
Appellants-Plaintiffs, Court of Appeals Case No.
49A04-1503-MI-113
v. Appeal from the Marion Superior
Court
Bremen Casting, Inc., and The Honorable Timothy W. Oakes,
Mastic Home Exteriors, Inc., Judge
Appellees-Defendants. Trial Court Cause No.
49D02-1405-MI-14372
Robb, Judge.
Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016 Page 1 of 21
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-Appellees2
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
1
Bremen and Mastic are premises owners.
2
The Indiana Trial Lawyers Association filed an amicus curiae brief aligned with the Myerses.
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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
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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
3
In their Joint Brief of Appellees/Cross-Appellants (“Appellees’ Brief”), the Defendants note “Bremen does
not concede that asbestos was on their premises. However, for the purposes of summary judgment and this
appeal, none of the factual disputes identified by [Larry] are material or determinative to the outcome, and
should be assumed to be as [Larry] alleges.” Appellees’ Brief at 9 n.3. For the purposes of this appeal, we
therefore assume Larry was exposed to asbestos while working at the Defendants’ facilities.
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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
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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—
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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
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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
Negligence – Non-Delegable Duty
[9] “In Indiana, the long-standing general rule has been that a principal is not liable
for the negligence of an independent contractor.” Bagley v. Insight Commc’ns Co.,
L.P., 658 N.E.2d 584, 586 (Ind. 1995). However, Indiana recognizes the non-
delegable duty doctrine, which provides five exceptions to the general rule of
non-liability:
(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
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cause injury to others unless due precaution is taken; and (5)
where the act to be performed is illegal.
Id. Our supreme court explained the rationale for these exceptions:
The duties associated with Indiana’s five exceptions are
considered non-delegable, and an employer will be liable for the
negligence of the contractor, because the responsibilities are
deemed “so important to the community” that the employer
should not be permitted to transfer these duties to another.
***
The exceptions encourage the employer of the contractor to
participate in the control of work covered by the exceptions in
order to minimize the risk of resulting injuries.
Id. at 587-88 (citation omitted); see also Carie v. PSI Energy, Inc., 715 N.E.2d 853,
855 (Ind. 1999) (“The exceptions reflect the notion that, in certain
circumstances, the employer is in the best position to identify, minimize, and
administer the risks involved in the contractor’s activities.”) (citation and
internal quotation marks omitted). In their complaint, the Myerses allege the
Defendants are vicariously liable under the intrinsically dangerous and due
precaution exceptions, and unless one of the exceptions applies, the general rule
of non-liability dictates the Defendants do not owe Larry a duty of care.
However, even if a plaintiff can establish the applicability of either the first or
fourth exception to the general rule of non-liability, a principal owes no duty of
care to an employee of an independent contractor if (1) there is no allegation
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the principal negligently selected its independent contractors,4 and (2) the facts
establish the employee was injured by the very condition he was employed to
address. See Roberts, 829 N.E.2d at 953, 957; see also Helms, 854 N.E.2d at 346
(limiting the Roberts holding to only the first and fourth exceptions to the
general rule of non-liability).
1. Intrinsically Dangerous Exception
[10] The intrinsically dangerous exception holds principals, such as the Defendants,
liable for the negligence of their independent contractor if the contracts require
performance of intrinsically dangerous work. See Roberts, 829 N.E.2d at 953-54.
The exception is “normally associated with strict liability and does not require
negligence on the part of the contractor” and only “imposes liability for
activities that are dangerous by nature, not merely because they are carried out
in a risky manner.” Id. at 954. “If proper precautions can minimize the risk of
injury, then the activity is not intrinsically dangerous.” Id. at 955. Even if the
activity is intrinsically dangerous, however, a principal cannot be held liable for
an injury sustained as a result of an intrinsically dangerous activity if the
individual was injured by the very condition he was employed to address. See
generally id.
4
Here, we note the Myerses allege the Defendants negligently hired their independent contractors. The
Defendants do not attempt to negate this claim and we therefore do not address it. As discussed below, the
Defendants’ sole contention in defense of the Myerses’ claims is that they cannot be held liable for Larry’s
injuries because he was injured by the very condition he was employed to address.
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[11] In Roberts, Roberts installed and serviced asbestos insulation for at least twenty-
four years while working as an employee of Armstrong Contracting and Supply
Company (“ACandS”); PSI hired ACandS, an independent contractor, to
perform work at PSI’s facilities, and as a result, Roberts often worked with and
around asbestos at PSI’s facilities. 829 N.E.2d at 950. Roberts knew he was
working with asbestos insulation and could recognize asbestos on sight. In
addition to performing his own work as an employee of ACandS, Roberts was
also exposed to asbestos as a result of the acts of PSI’s employees and the
employees of PSI’s independent contractors. Roberts did not take any
precautions to protect himself from asbestos exposure and only discovered the
risks associated with asbestos several years after completing his work at PSI.
After being diagnosed with mesothelioma, Roberts sued PSI under the theories
of vicarious and premises liability and received a general jury verdict.
[12] Our supreme court was tasked with determining whether the evidence was
sufficient to support the jury’s verdict. The court first addressed whether
recovery under the intrinsically dangerous exception was supported by the
evidence. Roberts argued asbestos is intrinsically dangerous, whereas PSI
disagreed, arguing the evidence at trial established proper precautions could
have minimized Roberts’s exposure. The court concluded the evidence did not
support recovery under the intrinsically dangerous exception because testimony
at trial indicated proper precautions could have minimized Roberts’s risk of
exposure. See id. at 954-55. However, for a second and independent reason,
the court concluded Roberts could not prevail because “working with asbestos
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is not intrinsically dangerous such that anyone hiring a contractor to address it
incurs strict liability for injuries sustained from exposure to it.” Id. at 955.
[13] The Myerses claim the Defendants hired independent contractors to perform
intrinsically dangerous work, namely working with or around asbestos, that in
turn exposed Larry to asbestos. In its attempt to negate the Myerses’ claim, the
Defendants rely on Roberts and argue (1) the evidence establishes proper
precautions could have minimized Larry’s exposure, and (2) working with
asbestos is not intrinsically dangerous as a matter of law.
[14] As to the first argument, the Defendants do not designate evidence, and we find
none in the record, indicating proper precautions could have minimized Larry’s
exposure to asbestos. However, we agree with the Defendants’ second
argument that Roberts also makes clear working with asbestos is not intrinsically
dangerous as a matter of law. See id. Therefore, the Myerses cannot invoke the
intrinsically dangerous exception.
2. Due Precaution Exception
[15] Under the due precaution exception to the general rule of non-liability, a
principal may be held liable for the negligence of an independent contractor
where the work to be performed will probably cause injury to others unless due
precaution is taken. McDaniel v. Bus. Inv. Grp., Ltd., 709 N.E.2d 17, 22 (Ind. Ct.
App. 1999), trans. denied. “The essence of this exception is the foreseeability of
the peculiar risk involved in the work and of the need for special precautions.”
Id. (citation omitted). A principal’s liability will only be established when, at
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the time of contracting, the principal should have foreseen an injury to others
was likely to happen. Id.
[16] Application of this exception requires review of several elements, including a
peculiar risk; the principal’s foreseeability of that risk; and an injury consistent
with the peculiar risk.5 Id. A peculiar risk is “the risk of a particularized harm
specific to the work being performed or the conditions under which it is
performed.” Id. “[T]he exception applies only when the risk involved is
something more than the routine and predictable hazards generally associated
with a given occupation: it must be a risk unique to the circumstances of a given
job.” Id.
[17] In Roberts, Roberts contended the evidence supported a finding that PSI was
liable for his injuries under the due precaution exception. Specifically, he
claimed PSI hired his employer, ACandS, to perform asbestos work and such
work created a peculiar risk that those performing the work, such as Roberts,
would contract an asbestos-related illness. PSI contended exposure to asbestos
materials at PSI’s facilities did not present a peculiar risk to an asbestos worker
who worked with and around asbestos materials on a daily basis in the normal
course of his trade. The court concluded the facts did not establish PSI created
“unusual risks as applied to an insulator,” reasoning Roberts’s job was to install
and maintain asbestos insulation and therefore the risk of him being exposed to
5
The Defendants do not address the foreseeability and injury elements in their motions for summary
judgment or on appeal.
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asbestos, regardless of the location of his work, was the always the same.
Roberts, 829 N.E.2d at 956 (emphasis added). Stated differently, because
Roberts was injured by the very condition he was employed to address, asbestos
work did not create a peculiar risk of harm as applied to him. The court
elaborated, “At most, PSI created a quantitatively higher risk, but not a risk
unique to PSI, and not a risk requiring qualitatively different precautions from
those generally associated with asbestos.” Id.
[18] Here, the Myerses claim asbestos work creates a peculiar risk to others, namely
electricians and other independent contractors who are exposed to asbestos dust
and contract asbestos-related illnesses when working in the vicinity of asbestos.
The Defendants counter this case is analogous to Roberts, arguing Larry was
injured by the very condition he was employed to address and therefore the
asbestos work did not create a peculiar risk requiring different precautions than
generally associated with electrical work. We must therefore determine
whether Larry was injured by the very condition he was employed to address.
We conclude the evidence does not establish he was.
[19] Roberts was injured by the very condition he was employed to address because
he was exposed to asbestos while performing asbestos work. Regardless of
where Roberts worked, the risk of being exposed to asbestos and contracting
asbestos-related diseases was the same. Therefore, PSI could not be held liable
for failing to take different precautions than those generally taken by asbestos
insulators. The evidence here indicates the Defendants hired Koontz to
perform electrical work, not asbestos work. While performing electrical work,
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Larry installed and maintained electrical wire, conduit, light fixtures,
transformers, junction boxes, and circuit breakers. Unlike the defendants in
Roberts, the Defendants here have not designated sufficient evidence to indicate
Larry’s risk of being exposed to asbestos was common among electricians or
across workplaces. In addition, there is a factual dispute as to whether Larry
was commonly exposed to asbestos during the normal course of his trade. We
therefore cannot accept the Defendants’ argument that the asbestos work being
conducted on their premises did not create a peculiar risk of harm to those not
hired to perform asbestos work, such as Larry. We conclude a genuine issue of
material fact exists as to whether Larry was injured by the very condition he
was employed to address and whether asbestos work on the Defendants’
premises created a peculiar risk of harm as applied to Larry, an electrician. The
due precaution exception to the general rule of non-liability is available to the
Myerses.
[20] In sum, the Defendants attempt to negate the Myerses’ claim by arguing they
owe no duty of care because asbestos work is not intrinsically dangerous as a
matter of law and Larry was injured by the very condition he was employed to
address.6 We conclude—consistent with Roberts—asbestos work is not
intrinsically dangerous. We further conclude, however, the Defendants have
not designated sufficient evidence to establish Larry was injured by the very
6
We emphasize the Defendants do not attempt to negate the questions of breach and proximate causation.
Those questions must be resolved by the trier of fact.
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condition he was employed to address. There is a genuine issue of material fact
as to whether asbestos work created a peculiar risk of harm to Larry, and those
similarly situated, of being exposed to asbestos. As it stands, the due
precaution exception to the general rule of non-liability may be applicable. The
determination of whether a duty exists in this case is dependent upon
underlying facts that must be resolved by the trier of fact. See BSA Const. LLC.,
54 N.E.2d at 1026. Accordingly, the trial court erred in granting the
Defendants summary judgment on the Myerses’ non-delegable duty claim.
B. Holding a Principal Liable for Its Own Employee
Negligence – Respondeat Superior
[21] In denying summary judgment to the Defendants on the Myerses’ respondeat
superior claim, the trial court concluded a genuine issue of material fact existed
as to whether the Defendants’ employees exposed Larry to asbestos. “Under
respondeat superior, an employer, who is not liable because of his own acts, can
be held liable for the wrongful acts of his employee which are committed within
the scope of employment.” Sword, 714 N.E.2d at 148 (citation and internal
quotation marks omitted).
[22] On appeal, the Defendants rely on Roberts and argue they do not, as a matter of
law, owe a duty to an employee of an independent contractor who is injured by
the very condition he is employed to address.7 As noted above, the designated
7
The Defendants also argue the Myerses are precluded from seeking relief because the Myerses did not
demonstrate a viable claim against the Defendants’ employees. In support of their contention, the
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evidence does not undisputedly establish Larry was injured by the very
condition he was employed to address. We therefore need not address whether
Roberts does, in fact, bar an employee of an independent contractor who is
injured by the very condition he is employed to address from seeking relief
under respondeat superior. The Defendants owe Larry a duty of care under
respondeat superior and a genuine issue of material fact exists as to whether
Larry was exposed to asbestos as a result of the acts of the Defendants’
employees. The trial court did not err in denying the Defendants summary
judgment on this claim.
III. Premises Liability
[23] “Generally, the owner of property has no duty to furnish the employees of an
independent contractor a safe place to work in the broad sense as the phrase is
applied to an employer.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258,
1264 (Ind. Ct. App. 2002), trans. denied. The landowner must, however,
generally maintain the premises in a reasonably safe condition for business
invitees, which includes independent contractors and the contractors’
Defendants cite only to Davis v. Cent. Rent-A-Crane, Inc., 663 N.E.2d 1177, 1179 (Ind. Ct. App. 1996),
for the proposition “[a]n employer cannot be held liable under respondeat superior unless a claim can
be maintained against the employee.” See Appellees’ Br. at 23. In their complaint, the Myerses alleged
the Defendants’ employees negligently exposed Larry to asbestos while they installed, removed,
maintained, demolished, replaced, cleaned, tested, labeled, and surveyed areas where asbestos was
present. Further, the Myerses alleged the employees were acting within the scope of their employment.
In their motions for summary judgment, the Defendants did not designate any evidence indicating, nor
did they argue, the Myerses could not maintain a viable claim against the Defendants’ employees.
Given our standard of review, the Defendants’ argument fails.
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employees. Roberts, 829 N.E.2d at 957. The Restatement (Second) of Torts §
343 (1965) explains this duty:
A possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
In addition, Restatement (Second) of Torts § 343A(1), which is meant to be
read in conjunction with Section 343, see Roberts, 829 N.E.2d at 957-58, states,
“A possessor of land is not liable to his invitees for physical harm caused to
them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness.” “The word ‘known’ means knowledge of the
existence of the condition or activity itself and also appreciation of the danger it
involves.” Merrill, 771 N.E.2d at 1265. In addition, a possessor of land
“ordinarily has no liability to an independent contractor or the contractor's
employees for injuries sustained while addressing a condition as to which the
landowner has no superior knowledge.” Roberts, 829 N.E.2d at 961.
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[24] The comparative knowledge of a landowner and an invitee, such as Larry, is
not a factor in assessing whether the landowner owes a duty of care; rather,
such a fact is relevant in assessing whether the landowner breached its duty.
Rhodes, 805 N.E.2d at 388. “The determination of whether a breach of duty
occurred is a factual question requiring an evaluation of the landowner’s
conduct with respect to the requisite standard of care. In this factual
assessment, the issue of the landowner’s and the invitee’s comparative
knowledge becomes relevant.” Roberts, 829 N.E.2d at 959 (citation omitted).
In other words, in determining whether a landowner breached its duty, we
consider the following factors: (1) the purpose and intent of the invitation and
(2) the relative knowledge of the parties.8 Merrill, 771 N.E.2d at 1265.
[25] In their motion for summary judgment, and again here on appeal, the
Defendants do not attempt to negate the Myerses’ claim under the Restatement.
Rather, the Defendants rely on Roberts and contend they cannot be found to
have breached their duty of care because Larry was injured by the very
condition he was employed to address, and because there is no evidence the
8
Although the Defendants do not rely on the Restatement in arguing they are entitled to judgment as a
matter of law, we note the evidence establishes the purpose for Larry being on the Defendants’
premises was to perform electrical work. As to the comparative knowledge, the evidence establishes
Larry only knew of the presence of asbestos, he did not know the dangers associated with asbestos, but
claims the Defendants did have, or should have had, knowledge of the dangers and failed to warn
Larry. The Defendants do not designate evidence indicating they did not have, or should not have
had, knowledge of the dangers associated with asbestos. Therefore, we are left to accept the Myerses’
allegation as true and conclude the Defendants have not designated evidence sufficient to negate the
Myerses’ claim under the Restatement.
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Defendants possessed superior knowledge of the risks associated with asbestos,
the Myerses’ claim fails. We disagree.
[26] Roberts requires a showing that a landowner has superior knowledge of the
dangerous condition on the premises only when an employee of an independent
contractor is injured by the very condition he was employed to address. 829
N.E.2d at 961. We therefore agree with Defendants’ assertion that Roberts
recognizes a common law exception to the Restatement in situations where the
employee of an independent contractor is injured by the very condition he was
employed to address. We disagree, however, the exception is applicable in this
case. As noted above, there is a genuine factual dispute as to whether Larry
was injured by the very condition he was employed to address. Therefore, the
Defendants’ reliance on Roberts in this respect is premature and their liability is
not limited to only the situation where they had superior knowledge of the
asbestos danger.
[27] The Defendants did not designate evidence sufficient to negate the Myerses’
premises liability claim.9 Accordingly, the trial court erred in granting the
Defendants summary judgment on this claim.
9
We further note, even assuming Larry was injured by the very condition he was employed to address, the
Defendants’ argument still fails because they have not designated evidence negating the Myerses’ claim they
possessed superior knowledge. In fact, there is no evidence in the record indicating whether any of the
parties had any knowledge of the risks associated with asbestos.
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Conclusion
[28] Indiana’s summary judgment standard carries with it a heightened burden for
the moving party, and in negligence cases, summary judgment is rarely
appropriate. As the moving party, the Defendants were required to designate
evidence sufficient to negate the Myerses’ claims. The Defendants did not meet
this burden. We conclude there is a genuine issue of material fact as to whether
the Defendants can be held liable for the negligent acts of their independent
contractors under one of the exceptions to the non-delegable duty doctrine, and
the trial court erred in granting summary judgment to Defendants on this
vicarious liability claim. In addition, the Defendants can be held liable for the
negligent acts of their own employees, and the trial court did not err in denying
the Defendants summary judgment on the Myerses’ respondeat superior claim.
As to the premises liability claim, there is a genuine issue of material fact as to
whether the Defendants can be liable for failure to maintain their premises in a
reasonably safe condition, and the trial court erred in granting the Defendants
summary judgment on that claim. In sum, Defendants are not entitled to
summary judgment on any of the Myerses’ claims, and we accordingly affirm in
part, reverse in part, and remand for further proceedings consistent with this
opinion.
[29] Affirmed in part, reversed in part, and remanded.
Barnes, J., and Altice, J., concur.
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