Adam Nagel and Emily Nagel v. Northern Indiana Public Service Company

Jan 23 2015, 9:51 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT D. BROWN PAUL A. RAKE
Kenneth J. Allen Law Group, LLC ROBERT H. FELDT
Valparaiso, Indiana Eichhorn & Eichhorn, LLP
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADAM NAGEL and EMILY NAGEL, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 45A03-1403-CT-103
)
NORTHERN INDIANA PUBLIC SERVICE )
COMPANY, )
)
Appellee-Defendant. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable John R. Pera, Judge
Cause No. 45D10-0910-CT-188
January 23, 2015
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Adam and Emily Nagel appeal the trial court’s refusal to impose discovery sanctions
against Northern Indiana Public Service Company (“NIPSCO”) and the trial court’s grant
of summary judgment in favor of NIPSCO. We affirm in part, reverse in part, and remand.
Issues
The issues before us are:
I. whether the trial court properly refused to enter default
judgment against NIPSCO for its purported delays in
responding to the Nagels’ discovery requests; and
II. whether there is any designated evidence to show that
NIPSCO owed a duty to Adam and breached that duty
in connection with his personal injury negligence action
against NIPSCO.
Facts
We first relate the available facts and designated evidence regarding Adam’s
accident and resulting injuries in a light most favorable to the Nagels. 1 Bailly Generating
Station is a NIPSCO-owned coal-fired power plant located in Chesterton. On April 8,
2008, Adam was employed by ThyssenKrupp Safway, Inc. (“Safway”). Emily was
married to Adam at the time, but they have since divorced. NIPSCO had hired Safway to
erect scaffolding attached to a cooling tower at the Bailly Generating Station in preparation
for routine maintenance of the plant.
1
Given the divergent standards of review for the trial court’s challenged rulings, we note the following.
We set out the underlying facts of Adam’s accident and injury in a light most favorable to the Nagels as
summary judgment non-movants. The procedural history of the case, including discovery, is set out in a
light most favorable to the trial court’s ruling denying the Nagels’s motion for sanctions, given our abuse
of discretion review of that decision.
2
In connection with construction of the scaffolding, Safway placed a parts rack
nearby. Safway instructed a NIPSCO forklift driver where to place the parts rack.
However, NIPSCO retained the general authority to direct contractors in their use of
staging areas, and specifically it could have instructed Safway to move the parts rack if it
believed its placement posed a safety hazard. Also, a NIPSCO project manager conducted
daily walkthroughs of the site. Kurt Sangster, a NIPSCO project manager, would later
state in a deposition that NIPSCO did not believe the parts rack was in an unsafe location.
Across the road from the cooling tower was a silo that collected fly ash, a byproduct
of burning coal. Semi-tractors pulling tanker trailers frequently drove to the silo to collect
fly ash and remove it from the site. The parts rack was placed a few feet away from a road
that led to and from the fly ash silo. The road had no curb, and there was no barrier between
the road and where the parts rack was located. Trucks removing fly ash from the silo would
sometimes cross into the area where the parts rack was located, in part because of the
narrow turning radius provided for entering or exiting the silo area. Aside from a stop sign
at the entry to the plant, there were no traffic control signs on the Bailly Generating Station
premises.
Adam was assigned to work as a “ground man” on the Safway scaffolding project.
App. p. 1694. This meant that Adam was required to obtain parts from the parts rack and
deliver them to the other individuals constructing the scaffold. On April 8, 2008, Adam
was asked to retrieve a part from the parts rack. One of his co-workers saw Adam descend
a ladder from the scaffolding catwalk but lost sight of him when he was about three feet
from the ground. When Adam did not return with the part, his co-workers went looking
3
for him and found him face down on the ground, unconscious and severely injured, about
twenty-six feet away from the ladder he would have descended. Adam’s hard hat and
safety glasses were strewn in different directions several feet away from him. Tire tracks
were observed near the parts rack. No witnesses recalled seeing what had happened to
Adam.
Adam’s recollection of the event was that he descended the ladder, then walked to
the parts rack to obtain the needed part. He described what happened next as follows:
And then as I bent over to bend over towards the rack to
look for the part, I caught out of the corner of my eye a glimpse
of a truck tire passing behind me.
And as I caught that glimpse of the truck tire—it was
close. As I caught the glimpse of that truck tire passing behind
me, I jumped up and tried to twist—I may have yelled
something even—to get out of the way of this truck when I
felt—I felt something striking me in the—you know, which I
think was the deck of the trailer.
Id. at 1715-16. As a result of the incident, Adam was in a coma for six weeks and continues
to suffer from serious mental and physical problems.
Later, it was determined that a semi-truck pulling a tanker trailer driven by Matt
Hren was the only vehicle that could have been near the parts rack at the time of the
incident. Hren was employed by Whitcomb Trucking (“Whitcomb”) and Whitcomb
owned the vehicle he was driving. Whitcomb, in turn, had leased both Hren and the vehicle
to MCS Trucking on April 8, 2008. Hren had no recollection of that date and, thus, no
recollection of having struck Adam.
4
The Indiana Occupational Safety and Health Administration (“IOSHA”) conducted
an investigation of the accident. IOSHA issued a report on June 2, 2008, closing the
investigation because of a lack of evidence or witnesses as to how Adam had been injured.
The report noted that, as a “ground man,” Adam would not have been allowed to climb a
scaffold, and “[n]o evidence shows if the employee was on the scaffold or if he just fell . .
. .” Id. at 1052. The report also related a phone interview with Emily while Adam was in
the hospital, in which she said “that she thought there was more damage to him then [sic]
what could be had if he had just tripped and fell.” Id. at 1051. It also related a statement
by an EMS responder “that off the record they had thought that possibly someone hit Adam
Nagel but like the accident, there was no evidence to prove this as happening.” Id. at 1052.
The Nagels retained counsel on April 16, 2008, but they did not file a complaint
against NIPSCO until October 12, 2009, for Adam’s personal injuries and Emily’s loss of
consortium. In the complaint, the Nagels alleged, “On or about April 8, 2008, Adam was
injured by a vehicle, a piece of equipment, and/or other instrumentality while working at
Bailly Plant.” App. p. 36. The Nagels specifically alleged that NIPSCO “[c]reated an
unreasonably dangerous condition with respect to the vehicles, equipment, or other
instrumentalities that were allowed to be used or employed at or very near the scaffold
being erected by Safway . . . .” Id. The complaint also asserted that NIPSCO was liable
to the Nagels by reason of res ipsa loquitur.2 The complaint did not name any defendants
2
The Nagels make no argument on appeal regarding res ipsa loquitur.
5
other than NIPSCO, nor did it state any claim that NIPSCO was vicariously liable for the
negligence of any other party.
On January 8, 2010, the Nagels filed interrogatories and requests for production
with NIPSCO. One of the interrogatories asked NIPSCO to “[p]rovide a complete
description of all vehicles within the NIPSCO Plant on the date of the occurrence and
identify any document reflecting such vehicles.” Id. at 282 (emphases in original). The
Nagels also asked NIPSCO to “produce any documents reflecting logs for vehicles within
the NIPSCO Plant on the date of the occurrence by attaching copies thereof to your
response to this discovery request.” Id. at 281 (emphases in original). NIPSCO responded
to this discovery request on March 31, 2010 as follows:
Objection; NIPSCO does not know as a matter of law if Mr.
Nagel was injured at Bailly Generating Station on April 8,
2008, and the Plaintiffs’ Interrogatory No. 22 and related
“definitions” improperly require NIPSCO to assume/admit
this. The phrase “any documents reflecting such vehicles” also
is vague, unduly-burdensome, undefined and not reasonably
calculated to lead to the discovery of admissible evidence and
constitutes proprietary information. However, and without
waiving its objections, NIPSCO refers the Plaintiffs to its
security checkpoint log attached to its Responses to the
Plaintiffs’ Requests For Production.
Id. at 282.
Meanwhile, on March 15, 2010, the Nagels had responded to an interrogatory from
NIPSCO asking them to clarify the nature of their complaint and specifically how they
claimed Adam had been injured. The Nagels generally referred NIPSCO to their
complaint, as well as the IOSHA report of June 2, 2008, and gave no further details as to
how they believed Adam had been injured. On October 20, 2010, the Nagels supplemented
6
their response to NIPSCO’s interrogatories to state, “although Plaintiff has islands of
memory about the events of that day, Plaintiff was working on and around the work site
near the scaffolding and parts area when he was struck by a truck. Plaintiff was rendered
unconscious and remains unaware of the identity of the vehicle’s operator.” Id. at 473.
This was the first explicit claim by the Nagels that Adam’s injuries had been caused by a
truck.
The NIPSCO Security Log provided with NIPSCO’s March 31, 2010 discovery
response only reflected vehicles that entered the Bailly Generating Station premises with a
pre-issued security card. Bulk carriers, including semi-truck drivers, such as Hren, with
tanker trailers going to the fly ash silo, did not have security cards and were not reflected
on the Security Log. Instead, such drivers went to a scale to have their vehicles weighed
upon entering and leaving and received a weight ticket after doing so, which tickets also
reflected the material that the trucks were carrying. Such tickets were reflected on a log,
the Chronological Transaction Log, which is completely separate from the Security Log
maintained by NIPSCO. The Chronological Transaction Log is maintained by an
independent contractor, Apollo Security, which operated the weight ticket system. 3
NIPSCO produced this document to the Nagels on December 17, 2010 as a supplementary
discovery response. The Chronological Transaction Log revealed that only one vehicle
would have been in the vicinity of the fly ash silo at the time of Nagel’s accident: a vehicle
identified as M27W operated by a company named MCS. Id. at 801.
3
Headwaters Resources, Inc., had a contract with NIPSCO to remove fly ash from the Bailly Generating
Station silo for use in other products. It was Headwaters that contracted with MCS to remove the fly ash.
7
On June 17, 2011, Adam was deposed and related for the first recorded time that he
recalled being hit by a truck on April 8, 2008. On October 13, 2011, NIPSCO provided an
affidavit from Hren to the Nagels. In the affidavit, Hren identified himself as the driver of
vehicle M27W on April 8, 2008. Vehicle M27W was a blue tractor pulling a silver-gray
tanker trailer.
On November 3, 2011, the Nagels filed a motion for sanctions against NIPSCO,
seeking default judgment for NIPSCO’s alleged discovery violations. Specifically, the
Nagels asserted in part that they had been prejudiced by NIPSCO’s delay in providing
information about vehicles at the Bailly Generating Station and Hren’s identity as the driver
of one of those vehicles. The trial court conducted a hearing on this motion on November
30, 2011. At the conclusion of the hearing, the trial court stated that NIPSCO had
committed a discovery violation through its delay in identifying Hren and the trucking
companies, but it declined to impose any sanctions because it found the Nagels had not
proven they were prejudiced by that delay. The trial court conducted a second hearing to
address the issue of prejudice on March 13, 2012. The Nagels contended they had been
prejudiced by NIPSCO’s discovery delays because they did not learn the identities of Hren,
MCS, and Whitcomb until after the two-year statute of limitations for initiating a claim
against them—April 8, 2010—had already passed. At the end of this hearing, the trial
court stated it would not impose default judgment against NIPSCO but otherwise held the
issue of sanctions under advisement.
NIPSCO subsequently moved for summary judgment. The trial court held a hearing
on the matter on December 4, 2012. On February 28, 2014, the trial court entered two
8
orders. The first was the trial court’s refusal to impose any sanctions against NIPSCO for
the purported discovery violations. The second was the trial court’s granting of NIPSCO’s
motion for summary judgment. The Nagels now appeal. Additional facts will be provided
as necessary.
Analysis
I. Discovery Sanctions
We first address the Nagels’ argument that the trial court should have entered default
judgment against NIPSCO as a result of its delay in providing information from which
Hren’s identity could be derived. The main thrust of the Nagels’ claim is that NIPSCO
should have provided the Chronological Transaction Log to them as part of its March 31,
2010 discovery response, from which Hren’s identity and his employment by Whitcomb
and MCS could have been derived.4 They further assert that they were prejudiced because
they were precluded from timely filing suit against Hren, Whitcomb, and MCS by April 8,
2010 as a result of NIPSCO’s failure to timely provide the Chronological Transaction Log.
See Ind. Code § 34-11-2-4(a) (providing two-year statute of limitations for personal injury
lawsuits).
“A trial court has broad discretion in ruling on issues of discovery and in
determining appropriate sanctions for failing to comply with a trial court’s discovery
order.” White-Rodgers v. Kindle, 925 N.E.2d 406, 411 (Ind. Ct. App. 2010). We will
4
The Nagels also mention alleged improper communications by counsel for NIPSCO with persons to be
deposed prior to their depositions being taken. We believe their argument regarding this alleged discovery
violation lacks cogency as to how they were prejudiced or why sanctions against NIPSCO are warranted,
and we will not address it. See Weaver v. Niederkorn, 9 N.E.3d 220, 223 (Ind. Ct. App. 2014) (citing Ind.
Appellate Rule 46(A)(8)(a)).
9
reverse a trial court’s ruling regarding discovery sanctions only when the appealing party
can show an abuse of discretion. Id. “An abuse of discretion occurs when a trial court
reached a conclusion that is against the logic and effect of the circumstances before it.” Id.
“The purpose of the discovery rules is to allow for minimal trial court involvement
and to promote liberal discovery.” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012).
“‘[C]oncealment and gamesmanship’” are no longer acceptable practices in our justice
system. Id. (quoting Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65, 77
(Ind. 2006)). To further the purposes of liberal discovery, Indiana Trial Rule 37(B)(2)(c)
permits a trial court to impose sanctions, up to and including default judgment, if a party
fails to comply with an order compelling discovery. Id. “[T]he purpose of sanctioning
discovery violations is ‘not merely to penalize those whose conduct may be deemed to
warrant such a sanction, but to deter those who might be tempted to such conduct in the
absence of such a deterrent.’” Id. (quoting Nat’l Hockey League v. Metro. Hockey Club,
Inc., 427 U.S. 639, 643, 96 S. Ct. 2778, 2781 (1976)). Under certain circumstances a trial
court may impose default judgment “when a party failed to respond to discovery requests
on time, the trial court granted an order to compel discovery, and the party violated the
order to compel by failing to respond.” Id. at 116.
Trial courts stand much closer to litigants than appellate courts, and thus they are
better equipped to have a better sense of what sanctions, if any, are appropriate in the case
of a discovery violation. Id. at 115. In determining the appropriateness of default judgment
as a discovery sanction, there is a marked preference in Indiana for deciding disputes on
their merits, “‘especially in cases involving material issues of fact, substantial amounts of
10
money, or weighty policy determinations.’” Wright v. Miller, 989 N.E.2d 324, 328 (Ind.
2013) (quoting Charnas v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind. Ct. App. 2005)).
Courts should not apply an “overly formulaic approach” in deciding whether to impose the
“drastic sanction” of default judgment in the case of a discovery violation. Id. If possible,
trial courts should impose sanctions that have a minimal effect on the evidence presented
at trial and should not impose sanctions at all if the circumstances indicate that sanctions
would be unjust. Id. at 330. We presume that a trial court will act in accord with what is
fair and equitable in each case. Id.
The Nagels face an uphill battle in attempting to convince us as an appellate court
that the trial court should have imposed the draconian punishment of default judgment
against NIPSCO. While some appellate opinions have reversed a trial court’s decision to
impose such a sanction—in light of the disfavor in which default judgments and
involuntary dismissals are held—the Nagels have not cited and we have not found a single
appellate opinion holding that a trial court was too lenient in refusing to order default
judgment for a discovery violation. The Nagels have failed to convince us that theirs
should be the first appellate case holding that a trial court abused its discretion in refusing
to impose default judgment.
It appears to us that there was some obfuscation—not necessarily deliberate—by
both parties during the course of discovery. Much of this stems from the fact that there
were no witnesses to the incident that injured Adam, and his own memory of the event was
clouded by his serious injuries. The original complaint did not specify the manner in which
Adam was injured. In the Nagels’s discovery response to NIPSCO on March 15, 2010,
11
they refused to give more specifics regarding the cause of Adam’s injuries, despite
NIPSCO’s request to do so. Instead, they referred back to the original complaint, as well
as the IOSHA report of the incident. That report, while suggesting in parts that Adam’s
injuries might not have been strictly related to a fall, indicated that there simply was not
enough evidence to determine the cause of those injuries. It was not until October 2010
that the Nagels first clearly stated, in a supplementary discovery response, that Adam was
hit by a truck. The first recorded statement that Adam was hit by a truck was made in June
2011, at Adam’s deposition.
Thus, when NIPSCO submitted its discovery response of March 31, 2010, the
importance of identifying every single vehicle on the Bailly Generating Station premises
at the time Adam was injured was not as clear as it would later become. Also, the request
for information regarding vehicles was just one of several dozen interrogatories and
requests for production the Nagels had filed with NIPSCO. The Security Log, while
incomplete, was the only vehicle log that NIPSCO directly possessed. The Chronological
Transaction Log was in the hands of an independent contractor. In December 2010,
approximately two months after the Nagels first clearly stated that Adam had been hit by a
truck, NIPSCO voluntarily provided the Chronological Transaction Log to the Nagels as a
supplementary discovery response. Even if, as the trial court found, NIPSCO could have
been more prompt in providing discovery to the Nagels, the evidence most favorable to the
trial court’s refusal to enter sanctions is that that delay was the not the result of deliberate
malfeasance or gamesmanship on NIPSCO’s part as opposed to overlooking information
12
whose importance was not yet readily apparent, in response to a large and detailed
discovery request.
To the extent the Nagels assert they suffered severe prejudice by NIPSCO’s delayed
discovery responses because they could not sue Hren, Whitcomb, and MCS as defendants,
we note the following. The statute of limitations against Hren, Whitcomb, and MCS ran
on April 8, 2010. The Nagels had received NIPSCO’s discovery response just seven or
eight days before that. Given the large volume of information and documents the Nagels
requested and that NIPSCO provided, it is by no means a given that, even if NIPSCO had
provided the Chronological Transaction Log at that time, the Nagels’ attorneys would have
tracked down and identified Hren, Whitcomb, and MCS as potentially liable parties and
added them as defendants in this case before the running of the statute of limitations.
Indeed, although the Nagels retained their current counsel on April 16, 2008, no suit was
filed for another eighteen months, leaving only approximately six months for any other
potentially liable parties to be identified through discovery.
Moreover, NIPSCO suffered prejudice of its own because of the late discovery of
Hren, Whitcomb, and MCS as potentially liable tortfeasors. Although Indiana’s
Comparative Fault Act allows a defendant to assert that the damages of a plaintiff were
caused in full or in part by a nonparty, the named defendant must affirmatively plead that
defense. McDillon v. N. Indiana Pub. Serv. Co., 812 N.E.2d 152, 156 (Ind. Ct. App. 2004)
(citing I.C. §§ 34-51-2-14 & 34-51-2-15), summarily aff’d in relevant part, 841 N.E.2d
1148, 1152 (Ind. 2006). The Comparative Fault Act also places deadlines upon assertion
of a nonparty defense as follows:
13
A nonparty defense that is known by the defendant
when the defendant files the defendant’s first answer shall be
pleaded as a part of the first answer. A defendant who gains
actual knowledge of a nonparty defense after the filing of an
answer may plead the defense with reasonable promptness.
However, if the defendant was served with a complaint and
summons more than one hundred fifty (150) days before the
expiration of the limitation of action applicable to the
claimant’s claim against the nonparty, the defendant shall
plead any nonparty defense not later than forty-five (45) days
before the expiration of that limitation of action. The trial court
may alter these time limitations or make other suitable time
limitations in any manner that is consistent with:
(1) giving the defendant a reasonable opportunity to
discover the existence of a nonparty defense; and
(2) giving the claimant a reasonable opportunity to add
the nonparty as an additional defendant to the action before the
expiration of the period of limitation applicable to the claim.
I.C. § 34-51-2-16. When service of a complaint occurs more than 150 days before the
expiration of the statute of limitations, this statute “strikes a balance between providing a
reasonable opportunity to the defendant to discover and assert a nonparty defense and
providing a reasonable opportunity to the claimant to join the alleged nonparty before
expiration of the statute of limitations.” Kelly v. Bennett, 792 N.E.2d 584, 586 (Ind. Ct.
App. 2003), trans. denied.
Here, the Nagels’ complaint was served more than 150 days before the expiration
of the statute of limitations. Thus, NIPSCO had to plead any nonparty defense no later
than forty-five days before April 8, 2010; alternatively, the trial court could have extended
this time limit to the extent it was consistent with allowing the Nagels to add the nonparty
or nonparties as additional defendants within the statute of limitations. These time periods
14
have now long-since passed, and so there is no opportunity for NIPSCO to assert under the
Comparative Fault Act that another person or entity—aside from Adam himself—is wholly
or partially liable for the Nagels’s damages. Although the Nagels suggest NIPSCO will be
able to point a jury to Hren, Whitcomb, or MCS as missing parties in this case who are the
ones responsible for Adam’s injuries, it does not appear that the Comparative Fault Act
will allow them to do so.5 See McDillon, 812 N.E.2d at 156. In sum, we conclude the trial
court did not abuse its discretion in refusing to impose sanctions against NIPSCO for its
purported delay in making some discovery responses.
II. Negligence—Summary Judgment
We now turn to the issue of whether the trial court properly granted NIPSCO’s
motion for summary judgment. First, we acknowledge that the trial court entered a detailed
written order explaining its decision. It is well-settled that special findings are not required
in summary judgment proceedings and, even if they are entered, they are not binding on
this court on appeal. New Albany Historic Preserv. Comm’n, 965 N.E.2d 79, 84 (Ind. Ct.
App. 2012). Also, we will affirm a grant of summary judgment upon any theory supported
by the designated evidence, regardless of a trial court’s stated theory. Henderson v. Reid
Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014). Such findings by a
trial court can be helpful in our review, but they are not required. Id.
We review a granting of summary judgment de novo, reviewing the matter in the
same way as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). We will
5
NIPSCO will be able to refer to Safway at trial for the limited purpose of addressing whether NIPSCO
owed a duty of care to Adam, as discussed below.
15
affirm such a ruling only if, after drawing all reasonable inferences in favor of the non-
moving party, the designated evidence shows that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Id. “‘A fact
is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’
if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable inferences.’” Id. (quoting
Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).
A summary judgment movant bears the initial burden of demonstrating the absence
of any genuine issue of fact on a determinative issue. Id. If the movant does so, the non-
movant then bears the burden of coming forward with contrary evidence showing an issue
for the trier of fact. Id. We must carefully review a grant of summary judgment to ensure
that a party was not improperly denied its day in court. Id.
In Hughley, our supreme court recently reaffirmed and emphasized the fact that it
is more difficult to obtain summary judgment in Indiana courts than in federal courts. “In
particular, while federal practice permits the moving party to merely show that the party
carrying the burden of proof lacks evidence on a necessary element, we impose a more
onerous burden: to affirmatively ‘negate an opponent’s claim.’” Hughley, 15 N.E.3d at
1003 (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123
(Ind. 1994)). Summary judgment is not the same thing as a summary trial, and summary
judgment is not appropriate simply because it appears the non-movant is unlikely to
succeed at trial. Id. at 1004. “In essence, Indiana consciously errs on the side of letting
marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious
16
claims.” Id. A non-movant only needs to demonstrate the existence of a “genuine” issue
of material fact—not necessarily a “persuasive” one. Id.
The Nagels’ claim against NIPSCO is based on negligence. In order to prove a
negligence claim, a plaintiff must show that: (1) the defendant owed plaintiff a duty; (2) it
breached the duty; and (3) plaintiff’s injury was proximately caused by the breach.
Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind. Ct. App. 2012). “Summary judgment
is rarely appropriate in negligence cases because they are particularly fact sensitive and are
governed by a standard of the objective reasonable person, which is best applied by a jury
after hearing all the evidence.” Id. Regardless, summary judgment may be granted to a
defendant if the undisputed material evidence negates one element of a negligence claim.
Id.
The arguments of the Nagels and NIPSCO primarily revolve around whether
NIPSCO owed a duty to Adam. NIPSCO asserts that it did not owe a duty of care to an
employee of an independent contractor working on its premises. The Nagels advance a
variety of theories under which they claim NIPSCO owed Adam a duty. Most of those
theories, however, are irrelevant to this case or unavailing. For instance, the Nagels
acknowledge the general rule that a principal is not liable for the negligence of an
independent contractor, but assert NIPSCO is liable for Adam’s injuries because of one of
five exceptions to that general rule. See Walker v. Martin, 887 N.E.2d 125, 134 (Ind. Ct.
App. 2008), trans. denied. The Nagels’ complaint, however, states no claim that NIPSCO
is vicariously liable for the negligence of an independent contractor or any other third party,
such as Safway, Hren, Whitcomb, or MCS; rather, the complaint focuses solely upon
17
NIPSCO’s own alleged negligence in connection with the Bailly Generating Station
worksite. In such a case, the rules regarding principal liability for independent contractor
negligence are inapplicable, and we need not address those rules. See Beta Steel v. Rust,
830 N.E.2d 62, 69-70 (Ind. Ct. App. 2005).
Secondly, the Nagels argue that NIPSCO assumed a duty to Adam by virtue of its
contract with Safway and other related documents, which contained various provisions
related to worksite safety. However, as noted by NIPSCO, we previously addressed these
very documents in another case involving injury to an employee of a NIPSCO
subcontractor at a power plant and directly held that these documents were insufficient as
a matter of law to establish that NIPSCO had assumed a duty of care to the injured
employee, either by contract or by conduct. See Marks v. N. Indiana Pub. Serv. Co., 954
N.E.2d 948 (Ind. Ct. App. 2011). That holding also establishes here that NIPSCO’s
contract with Safway and other safety-related documents did not create a duty to Adam.
Marks, however, does not give a final answer in this case as to whether NIPSCO
owed Adam a duty of care. Like here, Marks also concerned a personal injury accident at
a NIPSCO plant related to a fly ash removal truck. In that case, however, unlike the present
case, there was no premises liability issue, as we noted in our opinion on rehearing. Marks
v. N. Indiana Pub. Serv. Co., 964 N.E.2d 238, 239 (Ind. Ct. App. 2011). The plaintiff—a
driver of a fly ash removal truck—was injured when he fell while trying to open the hatch
on top of his tanker trailer. The injury had no relation to the condition of the land. See id.
Here, the Nagels have argued and presented evidence that Adam’s injuries were at
least partially related to a condition of the land owned by NIPSCO. As such, we now turn
18
to the question of premises liability. Although a property owner has no duty to provide an
independent contractor with a safe place to work, there is a common law duty to keep the
property in a reasonably safe condition. Zawacki v. U.S.X., 750 N.E.2d 410, 414 (Ind. Ct.
App. 2001), trans. denied. This duty extends to employees of independent contractors. Id.
Landowners also generally owe a duty to warn independent contractors and their
employees of latent or concealed perils on the premises. Id.
A landowner’s duty to employees of independent contractors is the same as that
generally owed to business invitees on the property. Ooms v. USX Corp., 661 N.E.2d
1250, 1252 (Ind. Ct. App. 1996), trans. denied, overruled on other grounds by Smith v.
Baxter, 796 N.E.2d 242, 245 (Ind. 2003). That duty is reflected by Section 343 of the
Restatement (Second) of Torts, which Indiana has adopted and which reads:
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.
Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008), trans.
denied. This language should be read in conjunction with section 343A(1) of the Second
Restatement, which provides: “A possessor of land is not liable to his invitees for physical
19
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.” Id. at 688-89.
Ultimately, the question of duty in premises liability cases comes down to whether
the defendant was in control of the premises when and where the accident occurred.
McCraney v. Gibson, 952 N.E.2d 284, 288 (Ind. Ct. App. 2011) (quoting Yates v. Johnson
County Bd. of Comm’rs, 888 N.E.2d 842, 847 (Ind. Ct. App. 2008)), trans. denied. This
rule is meant to impose liability upon the party who could have known of any dangers on
the land and could have acted to prevent any foreseeable harm. Id. (quoting Beta Steel,
830 N.E.2d at 70). Although duty usually presents a question of law, whether a duty exists
in premises liability cases may depend upon resolution of underlying facts by the trier of
fact, including questions regarding who controlled the property at the time and place of an
accident. Id. (quoting Yates, 888 N.E.2d at 847); see also Rhodes v. Wright, 805 N.E.2d
382, 386 (Ind. 2004) (holding there was genuine issue of material fact to be decided by
jury as to who controlled property at time and place of accident for purposes of premises
liability duty). Whether there has been possession and control of property for premises
liability purposes is dependent upon occupation and intent to control the particular area
where an injury occurred. McCraney, 952 N.E.2d at 288. “‘Actual physical possession of
property at the precise moment an accident happens is not always dispositive on the
question of control for premises liability purposes, if there was evidence that another party
was in a better position to prevent the harm that occurred.’” Id. (quoting Yates, 888 N.E.2d
at 848).
20
We believe this case bears substantial similarities to Rhodes. In that case, an
employee of Tyson Foods was killed on a chicken farm owned by the Wright family. The
Wright family was under contract with Tyson to farm and raise chickens; Tyson employees
periodically would come onto the farm to collect and haul away chickens. The death
occurred at 3:00 a.m. while the decedent was attempting to collect chickens at the farm and
another Tyson employee backed a forklift into the decedent, pinning him between the
forklift and a trailer. The estate of the decedent sued the Wright family, asserting it had
been negligent in failing to provide proper lighting at the chicken farm and in failing to
warn of dangers on the property, and that such failures contributed to the decedent’s death.
On appeal, the Wright family attempted to argue that they owed no duty to the
decedent because they had ceded control of the property to Tyson at the time and place of
the accident, in order to collect chickens, and because they had no control over how Tyson
performed its work. Our supreme court rejected this argument and held there was a
question of fact as to whether the Wright family owed the decedent a duty. Rhodes, 805
N.E.2d at 386. It found the evidence to be conflicting as to whether Tyson or the Wright
family controlled the premises when and where the accident occurred. Id. Additionally,
the court noted that the lighting on the farm was exclusively under the control of the Wright
family, not Tyson, and there was designated evidence that the lack of lighting may have
contributed to the accident. Id. at 386-87. The court further held that there was a question
of fact as to whether the danger caused by the lack of lighting was obvious and, even if it
was obvious, whether the Wright family still was obligated to take some action to alleviate
foreseeable harm. Id. at 387-88. The court also found disputed evidence as to whether the
21
decedent had superior knowledge of the harm caused by the lack of lighting and whether
the lack of lighting was the proximate cause of the decedent’s death. Id. at 388. Thus, the
court held that the Wright family was not entitled to summary judgment “in such a hasty
manner.” Id.
The Nagels’ theory of this case, as supported by designated evidence viewed in a
light most favorable to them,6 can be paraphrased as follows: Safway may have made the
initial decision as to where the place the parts rack, but NIPSCO still retained control over
the property such that it could have approached Safway and demanded that it move the
rack farther away from the road, in light of the danger posed by large semi-trucks frequently
driving off the road in the vicinity of the rack and a lack of barriers between the road and
the worksite. A NIPSCO project manager walked the grounds daily and could have noted
the parts rack’s unsafe location. Thus, although NIPSCO may have had no control over
how Safway erected its scaffolding, it did retain control over staging of the work area.
Most crucially, it retained the ability to tell Safway to move the parts rack to a different
location. In granting summary judgment and finding NIPSCO owed no duty to Adam, the
6
There are some discrepancies and inconsistencies in the evidence as noted by NIPSCO, including the fact
that Hren does not recall having struck Adam with his truck and that Adam recalled the truck that struck
him as being white, while the M27W truck Hren was driving was mostly blue with some white lettering.
Such discrepancies are for a jury to address. NIPSCO also takes issue with statements of an accident
reconstruction expert hired by the Nagels indicating that Adam’s injuries were consistent with being hit by
a truck and other statements implicating poor road design and traffic control and unsafe placement of the
parts rack as factors in the accident. These arguments by NIPSCO require weighing of the evidence.
Particularly given the Hughley case’s recent emphasis on Indiana’s preference for avoiding summary
judgment and the deference to be given to evidence designated by a non-movant, we reject NIPSCO’s
arguments.
22
trial court’s order indicates that it considered only Safway’s initial placement of the parts
rack and failed to consider NIPSCO’s ability to demand that it be moved.7
Moreover, there is designated evidence that Adam was indeed struck by Hren’s
truck, and that the placement of the parts rack, combined with poor design of the roads and
turnaround area in the vicinity of both the parts rack and fly ash silo, were contributing
factors to that accident. NIPSCO, not Safway, had control over the road design and traffic
flow at the Bailly Generating Station. Here, as in Rhodes, whether Safway or NIPSCO
was in control of the premises when and where Adam was injured is unclear and must be
resolved by a jury. Furthermore, just as the Wright family in Rhodes had exclusive control
over a factor that may have contributed to injury—the lighting on the farm—NIPSCO had
exclusive control over the roads and traffic flow on its premises, which may have been a
factor contributing to Adam’s injuries.8 We conclude there are genuine issues of material
fact regarding whether NIPSCO owed a duty of care to Adam. Granting summary
judgment to NIPSCO on the basis of lack of duty was improper.
7
NIPSCO employees Kurt Sangster and Dwayne Hogan and Safway employee Martin McCarthy all
indicated in depositions that NIPSCO retained ultimate control regarding worksite locations by independent
contractors, including the location of the Safway parts rack.
8
NIPSCO’s control over traffic and its ability to demand that Safway move the parts rack to a safer location
also distinguishes this case from Pelak v. Indiana Indus. Servs., Inc., 831 N.E.2d 765 (Ind. Ct. App. 2005),
trans. denied. In that case, we held that “where an instrumentality causing injury was in the control of an
independent contractor, a duty will not be found where there is no evidence that the landowner maintained
any control over the ‘manner or means’ by which the contractor engaged in its work.” Pelak, 831 N.E.2d
at 780-81. Here, there is evidence NIPSCO did have control over possible causes of Adam’s injuries, even
if it had no control over how Safway constructed its scaffolding.
23
There also is a question of fact in this case as to the issue of the obviousness of the
danger of having the parts rack so close to the road near the fly ash silo. Under the
Comparative Fault Act, “[t]he comparative knowledge of a possessor of land and an invitee
regarding known or obvious dangers may properly be taken into consideration in
determining whether the possessor breached the duty of reasonable care under Sections
343 and 343A of the Restatement (Second) of Torts.” Smith v. Baxter, 796 N.E.2d 242,
245 (Ind. 2003). The standard for determining whether there has been a breach of duty
with respect to an allegedly obvious danger is: (1) whether the landowner knew or by the
exercise of reasonable care would have discovered the dangerous condition and should
have realized that it involved an unreasonable risk of harm to invitees; (2) whether the
landowner should have expected that an invitee would fail to protect him- or herself from
the danger; and (3) whether the landowner failed to exercise reasonable care to protect the
invitee. See Countrymark, 892 N.E.2d at 691. There is no requirement that an invitee’s
conduct in the face of a known or obvious risk be undertaken for “compelling
circumstances.” Baxter, 796 N.E.2d at 245. “Whether a landowner has superior
knowledge goes to the question of breach, not of duty, and it is one factor among many
used to determine if there was a breach.” Rhodes, 805 N.E.2d at 388. Additionally, even
if a landowner is not negligent for failing to warn an invitee of a dangerous condition, it
still may be negligent for failing to take reasonable precautionary measures to reduce the
danger. See id.
NIPSCO essentially asserts that Adam should have been well aware of the dangers
of working in close proximity to a road traveled by large semi-trucks. Even so, that does
24
not automatically absolve NIPSCO of liability. First, Adam had to frequently walk in the
vicinity of the parts rack as a necessary part of his job; NIPSCO could have reasonably
expected that Adam or any Safway employee would frequently walk in the vicinity of the
parts rack. Second, Adam’s ability to hear and avoid oncoming traffic was reduced by his
having to wear hearing protection as part of his job. Third, there is evidence NIPSCO did
in fact have superior knowledge regarding the dangerous placement of the parts rack,
because trucks often drove off the road in the area where the parts rack was placed; as an
independent contractor not frequently on the premises, Adam would have been less aware
of this situation, if he was aware of it at all. Finally, even if the danger here was obvious,
it is a question of fact as to whether NIPSCO could or should have done more to reduce
the danger, i.e., by directing Safway to move the parts rack to a safer location and/or by
instituting better road design or traffic control methods, at least while Safway’s work in
the vicinity of the fly ash silo was ongoing. NIPSCO was not entitled to summary judgment
on the basis that the danger here was allegedly obvious and thus there was no breach of
duty to Adam.9 The Nagels are entitled to bring their claims to trial.
Conclusion
The trial court did not abuse its discretion in refusing to sanction NIPSCO with
default judgment for its purported delays in providing discovery to the Nagels. However,
the trial court erroneously granted summary judgment to NIPSCO. There are genuine
9
NIPSCO makes no argument regarding proximate cause.
25
issues of material fact as to whether NIPSCO owed Adam a duty of care and whether it
breached that duty. We affirm in part, reverse in part, and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
MAY, J., and PYLE, J., concur.
26