ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Stephen L. Williams William W. Drummy
Terre Haute, Indiana John Christopher Wall
Terre Haute, Indiana
Paul B. Ledford
Vincennes, Indiana Eric M. Cavanaugh
SUPREME COURT OF INDIANA
HAROLD CARIE and AL HARPER, ) ) Appellants (Plaintiffs Below ),) 83S01-9811-CV-695 ) in the Supreme Court v. ) ) 83A01-9707-CV-229 PSI ENERGY, INC., ) in the Court of Appeals ) Appellee (Defendant Below ). )
September 3, 1999
Harold Carie and Al Harper, employees of an independent contractor, each sued PSI Energy, Inc., for injuries sustained while performing maintenance on PSI's equipment. The trial court granted summary judgment in favor of PSI. The Court of Appeals
reversed, holding that PSI might be liable under the "due
precaution" exception. Carie v. PSI Energy, Inc., 694 N.E.2d 729
(Ind. Ct. App. 1998). We now grant transfer and affirm the trial
At one time, PSI performed its own maintenance at the Cayuga plant. PSI employees developed a fixture to facilitate maintenance on the exhausters. The fixture enabled PSI employees to remove the 5,200-pound front cover of an exhauster. The removal process involved bolting the fixture to the cover, unbolting the cover from the exhauster, securing a forklift to the fixture, and backing the forklift away from the exhauster with the fixture and the cover. As the fixture was not designed to be self-supporting, the forklift would then generally move the cover and fixture away from the exhauster to be tied off to an overhead beam. Until the fixture and cover were tied off to another structure, the forklift was
required to support them.
In 1979, PSI began to employ independent contractors to do
mill maintenance. In August of 1989, PSI contracted with Blount,
Inc. for maintenance at the Cayuga plant.See footnote
Timothy Weiss was the
Blount boilermaker foreman in charge of the Cayuga station
maintenance. From the time Blount hired him in 1986, Weiss had
performed maintenance work at several PSI plants, including repairs
on exhausters. A PSI employee taught Weiss how to remove the
exhauster covers using the jig fixture and a forklift. By
September of 1991, Weiss had performed the removal procedure on
exhauster covers several times.
On September 5, 1991, Weiss and his crew were repairing one of the exhausters at the Cayuga plant. Plaintiffs Carie and Harper were part of that crew. Weiss testified that he knew, and informed his crew members, that the fixture and exhauster cover were not self-supporting. (Supp. R. at 433-34.) Beginning the repairs, a Blount crew member named Kenneth Richmond used a forklift owned by PSI to remove the exhauster cover and attached fixture. Richmond later testified that he did not know the fixture and exhauster cover were not self-supporting. (R. at 639.) Richmond backed the
forklift up four or five feet when it stalled. As was customary,
when the forklift stalled, Weiss left the area to get a PSI
employee to fix the machine. Before leaving, Weiss told his crew
members "to leave it alone, don't touch it, I'll go get--I'll go
tell somebody to fix it." (Supp. R. at 440.)
While Weiss was away from the area, PSI mechanics came to the
scene and examined the forklift. The mechanics instructed Richmond
how to operate the forklift without stalling it. Richmond then
restarted the forklift and backed up another eight to ten feet. He
lowered the fixture and cover to the floor, leaving the hooks of
the forklift inserted in the fixture. While Richmond was waiting
for Weiss to return, another forklift approached the area and
needed to pass. Richmond's forklift, the cover, and the fixture
were blocking his way. Richmond removed the forklift hooks and
backed up to let the other forklift pass. Left unsupported, the
fixture and the attached exhauster cover fell, seriously injuring
Carie and Harper.
Carie and Harper filed separate complaints against PSI alleging negligence. The trial court consolidated the two cases. PSI moved for summary judgment, which the trial court granted based on the general rule that a person who hires an independent contractor is not liable for the independent contractor's negligence. Carie and Harper appealed. Applying an exception to the general rule of non-liability, the Court of Appeals reversed,
with Judge Friedlander dissenting, Carie, 694 N.E.2d at 737-38. In
their petition to transfer, Carie and Harper present one
dispositive issue: whether the "due precaution" exception to the
general rule of non-liability applies to their case.
Bagley, 658 N.E.2d at 587-88 (citations omitted). 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." 7 Am. Jur. Proof of Facts 3d § 1 at 483 (1990).
The two exceptions potentially applicable include where the
contract requires the performance of intrinsically dangerous work
and where the act to be performed will probably cause injury to
others unless due precaution is taken. The Court of Appeals
determined that the exception for intrinsically dangerous work was
inapplicable here. That conclusion is not challenged on transfer.See footnote
Our inquiry thus focusses solely on the applicability of exception
four: where the act to be performed will probably cause injury to
others unless due precaution is taken.
makes an employer "liable for the negligence of an
independent contractor 'where the act to be performed will probably
cause injury to others unless due precaution is taken.'" Carie,
694 N.E.2d at 735 (quoting Bagley, 658 N.E.2d at 586).See footnote
explained the exception in Bagley:
The essence of this exception is the foreseeability of the peculiar risk involved in the work and of the need for special precautions. The exception 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.
Application of this fourth exception to the
plaintiff's claim thus requires an examination of
whether, at the time [a party] was employed as an
independent contractor, there existed a peculiar risk
which was reasonably foreseeable and which recognizably
called for precautionary measures.
658 N.E.2d at 588 (citations omitted); see also Cummings v. Hoosier
Marine Properties, Inc., 173 Ind. App. 372, 387, 363 N.E.2d 1266,
1275 (1977) ("an action would fail absent a showing by the
plaintiff that in view of the nature of the work and the conditions
under which it was to be executed, the defendant should have
foreseen that the actual catastrophe which occurred was likely to
happen"). Rather than focussing on the permutations of
we believe the proper inquiry in this case rests on
foreseeability. "Foreseeability is an essential element" in the
due precaution exception. Denneau v. Indiana & Michigan Elec. Co.,
150 Ind. App. 615, 621, 277 N.E.2d 8, 12 (1971).
The policy underlying the foreseeability requirement has been explained:
Jones v. Indianapolis Power and Light Co., 158 Ind. App. 676, 691,
304 N.E.2d 337, 346 (1973) (quoting 41 Am. Jur. 2d Independent
Contractors § 35) (now § 31 at 430 (1995)) (emphasis supplied in
Jones). With these standards in mind, and with the relevant facts
undisputed, the inquiry here becomes whether, as a matter of law,
PSI should have foreseen that the performance of maintenance work
on the exhausters would probably result in this type of incident
unless due precaution was taken.
That determination hinges on the degree of factual specificity
which the law should require the employer to foresee. The Court of
Appeals majority decided that the due precaution exception applied
because PSI should have foreseen the general risk which caused
Carie and Harper's injuries, saying:
The question . . . is whether the use of the non-self- supporting fixture to remove an exhauster cover would make injury "likely to happen" unless precautionary measures were taken. The answer is yes. . . . [I]t was foreseeable to PSI at the time of contracting that if the
fixture was left unsupported, it would fall and likely
Carie, 694 N.E.2d at 736-37. In dissent, Judge Friedlander
asserted that the exception should apply only if there was some
relatively more peculiar or special foreseeable risk, phrasing the
dispositive issue as:
At the time of the signing of the contract, could PSI have foreseen that a forklift would fail while it was supporting a jig and front cover, and that a Blount employee would move the forklift, leaving the front cover unsupported, which would then fall and injure someone? . . . [T]his question must be answered in the negative.
Id. at 739. We agree with Judge Friedlander that "the danger that
the contractee must foresee in order to fit within the fourth
exception must be substantially similar to the accident that
produced the complained-of injury." Id. at 737.
This policy was apparent when the Jones court recited the
facts of the incident with particular specificity when affirming
the summary judgment in favor of the defendant:
There was no evidence that, at the time [the employer] contracted with [the independent contractor], [the employer] could foresee or should have foreseen that the limit control switch atop a man and materials hoist operated by an independent contractor for exclusive use of its employees would become clogged with ice and snow causing the hoist to stick--and that employees of such independent contractor would undertake to manipulate the hoist circuitry so as to cause death or injury.
Jones, 158 Ind. App. at 690-91, 304 N.E.2d at 346. We implicitly required a similar level of factual specificity in Bagley. In that case, Bagley, an employee of an independent contractor, "was injured as he was hammering a rod into the ground near the ladder
on which [the independent contractor] was working. The ladder
slipped on snow and ice, and [the independent contractor] landed on
Bagley, driving Bagley's head down onto the protruding rod."
Bagley, 658 N.E.2d at 588. Upholding summary judgment in favor of
the defendants, the Court stated:
At the time the contracts were made, the delegated work did not present the peculiar probability that an injury such as Bagley's would result unless precautionary measures were taken, and the employers could not have been expected to foresee the sort of injury which actually occurred.
Id. In the present case, Judge Friedlander was correct to call for a more precise factual congruence between that which was foreseeable and that which ultimately occurred.See footnote 6 We are satisfied that PSI could not have foreseen the sequence of events leading to plaintiffs' injuries when it hired Blount to perform maintenance at Cayuga, and as such, the due precaution exception does not apply. Cf. Red Rood Inns, 691 N.E.2d at 1346 ("[W]e are not persuaded that the nature of the work and the conditions under which it was performed were such that, at the time of contracting, a reasonable employer should have foreseen that injury . . . was likely to occur."). Accordingly, the general rule of non-liability for the torts of independent contractors applies and the plaintiffs' claims
Dickson, Sullivan, Selby, and Boehm, JJ., concur.