ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
C. DENNIS WEGNER STANLEY C. FICKLE
C. Dennis Wegner & Assoc., P.C. WILLIAM E. PADGETT
Indianapolis, Indiana WILLIAM A. HAHN
Barnes & Thornburg
COURT OF APPEALS OF INDIANA
JERRY R. MERRILL, JR., )
vs. ) No. 73A01-0111-CV-435
KNAUF FIBER GLASS GmbH,
APPEAL FROM THE SHELBY CIRCUIT COURT
The Honorable Charles D. OConnor, Judge
Cause No. 73C01-9906-CP-67
July 29, 2002
OPINION - FOR PUBLICATION
Ellerman Roofing employee Jerry R. Merrill, Jr. (Merrill) filed a negligence action against
Knauf Fiber Glass GmbH (Knauf) for injuries sustained after Merrill fell through a
skylight while repairing Knaufs roof. This appeal involves the trial courts grant
of Knaufs motion to strike part of an affidavit, its grant of Knaufs
motion for summary judgment, and its denial of Merrills cross-motion for partial summary
judgment. We find that the trial court did not abuse its discretion
by striking inadmissible legal conclusions from the affidavit of Merrills expert witness.
Because we further conclude that Knauf was not legally responsible under any theory
raised, we affirm the trial courts rulings on the summary judgment motions.
Facts and Procedural History
Knauf discovered that the roofs on buildings known as Warehouse C and Warehouse
D at its Shelbyville plant needed repairs. In particular, the rubber-like membranes
in valleys between the various peaks on the roofs leaked water. Ellerman
Roofing had previously worked for Knauf, and Lewis Craig, Knaufs buildings and grounds
supervisor, contacted Ellerman Roofing about performing the necessary repairs.
Owner Doug Ellerman physically inspected the roofs with Craig, who pointed out that
both roofs had flat fiberglass skylights located a distance above the membranes.
Craig showed Ellerman that the skylights on Warehouse D had metal mesh covers,
but the skylights on Warehouse C did not. He reported that, years
earlier, a Knauf employee had fallen through an uncovered skylight on another building.
Ellerman Roofing submitted a bid and was awarded the job. Knauf executed
a Purchase Order which provided that Ellerman Roofing would furnish all labor, supervision,
materials, tools, machinery, equipment, appliances, shoring, scaffolding, false work, transportation, and all other
facilities necessary to perform the work. Appellants App. p. 344. The
Purchase Order also incorporated and attached a two-page Standard Articles for Fixed Price
Construction Contract and referenced a 50-page Safety Rules and Procedures for Outside Contractors.
At some point, Doug Ellerman, as Safety Representative for Ellerman Roofing, signed
an Outside Contractor Acknowledgement Form.
Before beginning the project, Ellerman Roofing supervisor Larry Isgrigg and Merrills brother, Doug,
also an Ellerman Roofing employee, had a brief safety meeting with Craig.
During a subsequent walk through, Craig showed the men the uncovered skylights on
Warehouse C. Craig told them that a Knauf employee previously had fallen
through a skylight, and he advised Ellerman Roofing employees to avoid them while
they performed the repairs. At the commencement of the work, Craig again
reminded the employees to stay away from the skylights.
On March 25, 1999, Merrill joined the project, working first on Warehouse D
and then transferring to Warehouse C. On the afternoon of March 30,
Merrill walked up the roof to get his tools. Merrill knew that
the uncovered skylights on Warehouse C were unsafe. On his way back
to the worksite, however, Merrill was distracted by a co-worker, and he stepped
onto a skylight, fell through it, and landed on the floor approximately 15
Merrill filed a complaint against Knauf, alleging negligence. Knauf moved for summary
judgment, arguing that it was not liable under any theory. Merrill filed
a cross-motion for partial summary judgment on the issue of duty. Merrill
designated the affidavit of Frank L. Burg, a Certified Safety Professional, who attested
that, inter alia, Knauf had an affirmative duty under the Occupational Health and
Safety Act (OSHA) and construction industry standards to cover or guard the skylights.
Appellants App. p. 390, 392. Knauf moved to strike Burgs expert
Following a hearing, the trial court decided that one paragraph of Burgs affidavit
rested upon an inadmissible legal conclusion and, thus, struck that paragraph. Additionally,
the court concluded that Knauf had no heightened duty to place covers or
guards over the skylights pursuant to OSHA. Appellants App. p. 6.
The court further determined that Knauf assumed no such duty by contract or
conduct, that Knaufs duty of care as a landowner was discharged by warning
Ellerman Roofing about the skylights, and that Merrill was aware of and appreciated
the risks associated with the skylights. Accordingly, the court granted Knaufs motion
for summary judgment and denied Merrills cross-motion for partial summary judgment. This
Discussion and Decision
Merrill challenges the courts decisions to strike a portion of Burgs affidavit, to
grant summary judgment in favor of Knauf, and to deny his own cross-motion
for partial summary judgment. We first examine the evidentiary issue.
I. Motion to Strike Affidavit
Merrill claims that the trial court improperly excluded evidence from consideration in
the summary judgment proceedings. The decision to admit or exclude proffered expert
testimony is entrusted to the discretion of the trial court. Indianapolis Podiatry,
P.C. v. Efroymson, 720 N.E.2d 376, 383 (Ind. Ct. App. 1999), trans. denied.
This court will reverse a decision to exclude evidence only if that
decision is clearly against the logic and effect of the facts and circumstances
before the trial court, or the reasonable, probable, and actual deductions to be
drawn therefrom. Wallace v. Meadow Acres Manufactured Hous., Inc., 730 N.E.2d 809,
812 (Ind. Ct. App. 2000), trans. denied.
At issue is the following paragraph of Burgs affidavit:
5. Based upon my review of the documentation provided to me, I
have the following professional opinions:
(a) The uncovered skylights on the roof where Jerry Merrill fell constituted a
hazardous condition on Knaufs premises which was unreasonably dangerous to business invitees and
to Knaufs own employees.
(b) Knauf had an affirmative duty under applicable OSHA and construction industry standards
to cover or guard the skylights for the protection of its own employees
and for the protection of Ellermans employees who were present at Knaufs invitation
pursuant to a contract between Knauf and Ellerman which was drafted by Knauf.
(c) Knauf violated OSHA standards and the customs and practices within the construction
industry and Knaufs own safety program when it failed to guard or cover
skylight openings on the roof where Jerry Merrill fell.
(d) Skylights are required to be guarded and/or covered because it is well
known that workers can be distracted or focused on their tasks and can
inadvertently step on a skylight. Knowing the location of a skylight or
other hole or being warned about such danger is not an acceptable safeguard
according to the standards or the customs and practices within the construction industry.
Appellants App. p. 392.
In order to be used in a summary judgment proceeding, an affidavit must
set forth such facts as would be admissible in evidence. Ind. Trial
Rule 56(E); Rubin v. Johnson, 550 N.E.2d 324, 327 (Ind. Ct. App. 1990),
trans. denied. Here, the trial court found that Burgs expert opinions set
forth in Paragraph 5 are comprised of, and/or necessarily depend upon the legal
conclusion that Knauf had an affirmative duty to cover or guard the skylights.
Appellants App. p. 7. In essence, the court found Burgs opinions
inadmissible under Indiana Evidence Rule 704(b), which proscribes opinion testimony concerning legal conclusions.
The question of whether a duty to exercise care arises is governed by
the relationship of the parties and is an issue of law within the
province of the court. Douglass v. Irvin, 549 N.E.2d 368, 369 (Ind.
1990); Interim Healthcare of Fort Wayne, Inc. v. Moyer ex rel. Moyer, 746
N.E.2d 429, 433 (Ind. Ct. App. 2001), rehg denied, trans. denied. Accordingly,
we have held that an expert witness was not permitted to testify that
the defendant was responsible for a defective condition and owed the plaintiffs a
duty. Harman v. C.E.&M, Inc., 493 N.E.2d 1319, 1321 (Ind. Ct. App.
1986), rehg denied, trans. denied.
In his affidavit, Burg concludes that Knauf owed Merrill an affirmative duty to
cover or guard the skylights. Burgs determination regarding duty is a legal
conclusion that invades the province of the court. Given that Paragraph 5
relies upon inadmissible evidence, the trial court did not abuse its discretion when
it struck that portion of Burgs affidavit.
II. Motion and Cross-Motion for Summary Judgment
Merrill also claims error in the grant of summary judgment in favor of
Knauf and the denial of his cross-motion for partial summary judgment. In
reviewing the trial courts rulings, this court faces the same issues that were
before the trial court and follows the same process. Owens Corning Fiberglass
Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind. 2001). We do not
weigh evidence but, instead, liberally construe the facts in the light most favorable
to the nonmoving party. Hendrickson v. Alcoa Fuels, Inc., 735 N.E.2d 804,
811 (Ind. Ct. App. 2000). Summary judgment is appropriate only when the
designated evidence demonstrates that there is no genuine issue regarding any material fact
and that the moving party is entitled to judgment as a matter of
law. Ind. Trial Rule 56(C); Soames v. Young Oil Co., 732 N.E.2d
1236, 1238 (Ind. Ct. App. 2000).
The party appealing the summary judgment rulings has the burden of persuading this
court that the grant or denial of summary judgment was erroneous. Cobb,
754 N.E.2d at 908. On appeal, we determine whether there is a
genuine issue of material fact and whether the trial court correctly applied the
law. Soames, 732 N.E.2d at 1238. We will affirm the grant
of summary judgment on any legal basis supported by the designated evidence.
Cole v. Lantis Corp., 714 N.E.2d 194, 198 (Ind. Ct. App. 1999).
The fact that the parties filed cross-motions for summary judgment does not alter
our standard of review. Hendricks County Bank & Trust Co. v. Guthrie
Bldg. Materials, Inc., 663 N.E.2d 1180, 1183 (Ind. Ct. App. 1996), rehg denied,
trans. denied. Nor is our review changed by the trial courts entry
of findings of fact and conclusions thereon. Eck & Associates, Inc. v.
Alusuisse Flexible Packaging, Inc., 700 N.E.2d 1163, 1166 (Ind. Ct. App. 1998), trans.
denied. Although the findings and conclusions provide valuable insight into the courts
decision, they are not binding upon this court. Id.
Here, Merrill advances several theories of liability. Specifically, he claims that Knauf,
as a landowner, was liable to him as a business invitee, that Knauf
owed him a non-delegable duty, and that Knauf assumed a duty of care
by contract and by conduct. Merrills claims sound in negligence, which is
comprised of three elements: (1) a duty on the part of the
defendant in relation to the plaintiff; (2) a breach of duty, that
is, a failure on the part of the defendant to conform his conduct
to the requisite standard of care required by the relationship; and (3) an
injury to the plaintiff resulting from that failure. Douglass, 549 N.E.2d at
369. Summary judgment is rarely appropriate in a negligence action; however, when
the undisputed material facts negate at least one element of a claim, judgment
as a matter of law is appropriate. Bamberger & Feibleman v. Indianapolis
Power & Light Co., 665 N.E.2d 933, 937 (Ind. Ct. App. 1996).
A. Liability to Business Invitee
Merrill first asserts liability under the theory that a landowner owes a business
invitee a duty of care. 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.
Howard v. H.J. Ricks Constr. Co., 509 N.E.2d 201, 205 (Ind. Ct.
App. 1987), rehg denied, trans. denied. However, the owner is under a
duty to keep the property in a reasonably safe condition for business invitees,
including employees of independent contractors. Zawacki v. U.S.X., 750 N.E.2d 410, 414
(Ind. Ct. App. 2001), rehg denied, trans. denied. The best definition of
that duty comes from the Restatement (Second) of Torts § 343 (1965), which
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
(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.
Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991), rehg denied. Under
§ 343, An invitee is entitled to expect that the possessor will take
reasonable care to ascertain the actual condition of the premises and, having discovered
it, either to make it reasonably safe by repair or to give warning
of the actual condition and the risk involved therein. Restatement (Second) of
Torts § 343, cmt. d.
Read in conjunction with § 343, § 343A provides in part that [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. Ozinga Transp. Sys., Inc. v. Mich. Ash Sales,
Inc., 676 N.E.2d 379, 385 (Ind. Ct. App. 1997) (citing Restatement (Second) of
Torts § 343A), rehg denied, trans. denied. The word known means knowledge
of the existence of the condition or activity itself and also appreciation of
the danger it involves. Restatement (Second) of Torts § 343A, cmt. b.
Under the Restatement view, a landowner is subject to liability if: (1)
the landowner 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; and (3) fails to exercise
reasonable care. Here, Knauf knew that the skylights might not bear the
weight of a man and, to the extent it believed the invitees would
not realize that danger, it repeatedly warned Ellerman Roofing about the risks involved.
The warnings to Merrills superiors were warnings to Merrill, the employment relation
permitting a reasonable assumption that such notice will be communicated in the ordinary
course to all employees on the work. Howard, 509 N.E.2d at 205-06.
In fact, Merrill admitted that he knew the skylights were dangerous and
that he typically was cautious around them.
Thus, Knauf is liable for Merrills injuries only if Knauf should have anticipated
that Merrill would fail to protect himself despite his knowledge and if, despite
such, Knauf failed to exercise reasonable care to protect Merrill. In analyzing
that issue, we consider the purpose and intent of the invitation, id. at
205, and the comparative knowledge of the parties. Zawacki, 750 N.E.2d 414;
Davis v. Hoosier Energy Rural Elec. Coop., Inc., 19 F.3d 365, 369 (7th
Cir. 1994) (applying Indiana law).
The undisputed facts are that Knauf hired Ellerman Roofing, a professional roofing company,
to perform the necessary repairs. Ellerman Roofing was in control of the
manner by which the roof was repaired and the resources used in the
project. That includes control over the activities of its employees at the
time of the incident. Although Merrill urges that Ellerman Roofing controlled the
valleys only, it is of no legal consequence that Ellerman Roofing was hired
only to repair the valleys. Both Knauf and Ellerman Roofing anticipated that
the roofers would access areas around the skylights during the repair project.
Additionally, Merrill knew of the skylights on the roof and their attendant dangers
and had already avoided at least one skylight while walking on the roof.
Despite his knowledge and appreciation of the risks, Merrill proceeded down the
roof, was distracted, and fell into a skylight. Knauf could not have
anticipated such events given the circumstances surrounding the invitation and the comparable knowledge
of the parties. See Zawacki, 750 N.E.2d 415-16 (affirming summary judgment where
independent contractor was in control of both the site and its employees and
landowners comparative knowledge was no greater than that of the injured employee); Ozinga,
676 N.E.2d at 386 (holding there was no triable issue regarding landowners breach
of duty where the plaintiff was aware of the slippery nature of fly
ash on which he fell and where the landowner could not have informed
plaintiff of any facts of which he was not already aware); Davis, 19
F.3d at 369 (finding no landowner liability for physical harm caused by failure
of independent contractors employee to protect himself from known dangers). Under the
foregoing authority, Knauf is not liable for Merrills injuries.
Still, Merrill asks this court to adopt and apply what the parties term
a distraction theory. In particular, Merrill claims that Knauf should have expected
that he would become distracted and fall through the skylight. Relevant to
that issue are the following comments to § 343A of the Restatement:
e. In the ordinary case, an invitee who enters land is entitled to nothing
more than knowledge of the conditions and dangers he will encounter if he
comes. If he knows the actual conditions, and the activities carried on,
and the dangers involved in either, he is free to make an intelligent
choice as to whether the advantage to be gained is sufficient to justify
him in incurring the risk by entering or remaining on the land.
The possessor of the land may reasonably assume that he will protect himself
by the exercise of ordinary care, or that he will voluntarily assume the
risk of harm if he does not succeed in doing so. . .
f. There are, however, cases in which the possessor of land can
and should anticipate that the dangerous condition will cause physical harm to the
invitee notwithstanding its known or obvious danger. In such cases the possessor
is not relieved of the duty of reasonable care which he owes to
the invitee for his protection. This duty may require him to warn
the invitee, or to take other reasonable steps to protect him, against the
known or obvious condition or activity, if the possessor has reason to expect
that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers
may arise, for example, where the possessor has reason to expect that the
invitees attention may be distracted, so that he will not discover what is
obvious, or will forget what he has discovered, or fail to protect himself
against it. . . . In such cases the fact that the
danger is known, or is obvious, is important in determining whether the invitee
is to be charged with contributory negligence, or assumption of risk. . .
. It is not, however, conclusive in determining the duty of the possessor,
or whether he has acted reasonably under the circumstances.
Restatement (Second) of Torts § 343A, cmts. e, f (emphasis added).
Contrary to Merrills position, the distraction doctrine is not a separate theory of
liability. Rather, the doctrine states that, in the proper case, a landowner
may anticipate that a known or obvious danger will cause harm to the
invitee when, for example, there is reason to expect that the invitees attention
may be distracted. In this case, however, the parties have designated no
facts that compel us to apply that doctrine.
The undisputed facts reveal that the source of the distraction was an Ellerman
Roofing employee. Ellerman Roofing, not Knauf, controlled that employee. Knauf did
not instruct on how to repair the roof or where to place tools.
Rather, Knauf hired skilled laborers and could reasonably anticipate that Merrill would
be circumspect and would take measures to protect himself. Mason v. Ashland
Exploration, Inc., 965 F.2d 1421, 1425-27 (7th Cir. 1992) (applying Illinois law and
concluding that the landowner had no liability under the doctrine), rehg denied.
The evidence does not support a reasonable inference that Knauf should have anticipated
that another Ellerman Roofing employee would distract Merrill and that Merrill would step
onto and fall through a skylight. Because there is no triable issue
of fact regarding Knaufs liability as a landowner to an invitee, the trial
court properly granted Knaufs summary judgment motion on that theory.
B. Non-Delegable Duty
Merrill also claims that Knauf was vicariously liable for Ellerman Roofings negligence because
Knauf owed him a non-delegable duty. The well-established general rule is that
a principal is not liable for the negligence of an independent contractor.
Hale v. R.R. Donnelley & Sons, 729 N.E.2d 1025, 1027 (Ind. Ct. App.
2000), rehg denied, trans. denied. 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.
Id. 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. Bagley v. Insight Communications Co.,
658 N.E.2d 584, 587 (Ind. 1995) (citation omitted).
Merrill argues that the fourth exception applies here. Our supreme court explained
that [t]he 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. Id. at 588 (citations omitted). The danger that
the principal must foresee must be substantially similar to the accident that produced
the injury. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 857 (Ind.
1999). This court has explained that more than the possibility of harm
is required; the defendant should have foreseen the probability of such harm.
Red Roof Inns, Inc. v. Purvis, 691 N.E.2d 1341, 1346 (Ind. Ct. App.
1998), trans. denied.
Applying those principles, we concluded that the landowner did not owe a non-delegable
duty to the employee of an independent contractor who fell from a motel
roof being repaired by his employer. Id. at 1347. Later, on
similar facts, we held the fourth exception inapplicable where an employee of a
general contractor, hired to replace the landowners roof, fell through a cut section
of the roofing. Ryobi Die Casting v. Montgomery, 705 N.E.2d 227, 230
(Ind. Ct. App. 1999), trans. denied.
Merrill points out that a Knauf employee had fallen through the skylight some
years earlier. However, Knauf had warned about the attendant dangers. Ellerman
Roofing controlled the methods by which the repairs were accomplished. The fourth
exception contemplates that Ellerman Roofing, as an independent contractor, would be held responsible
for anticipating and guarding against predictable dangers. McDaniel v. Bus. Inv. Group,
Ltd., 709 N.E.2d 17, 22 (Ind. Ct. App. 1999), trans. denied. To
find otherwise would be to abrogate not only the general rule of nonliability
but also the contractee/independent contractor relationship itself. Id.
As stated previously, at the time of contracting Knauf could not have foreseen
that, if it failed to cover or guard the skylights, it was likely
that a roofer would walk down the roof after retrieving tools, get distracted,
and fall though a skylight. As a matter of law, we hold
that the fourth exception does not establish the existence of a non-delegable duty.
Summary judgment in favor of Knauf on that theory of liability is
C. Assumption of Duty by Contract
Next, Merrill claims that Knauf bound itself by contract to place covers or
guards over the skylights of Warehouse C. In interpreting a written contract,
it is the courts duty to ascertain the intent of the parties at
the time the contract was executed as disclosed by the language used to
express their rights and duties. Teitge v. Remy Constr. Co., 526 N.E.2d
1008, 1010-11 (Ind. Ct. App. 1988). To determine whether a party is
charged with a duty of care under a contract, we look to the
contract as a whole by examining all of its provisions. Hale, 729
N.E.2d at 1028.
We accept an interpretation of the contract
that harmonizes its provisions. Teitge, 526 N.E.2d at 1010. If a
contract affirmatively evinces an intent to assume a duty of care, actionable negligence
may be predicated upon the contractual duty. Hale, 729 N.E.2d at 1028.
The contract between Knauf and Ellerman Roofing for Warehouse C involves four documents:
(1) the Purchase Order; (2) the two-page Standard Articles for Fixed Price Construction
Contract; (3) the 50-page Safety Rules and Procedures for Outside Contractors [hereinafter Safety
Rules]; and (4) the Outside Contractor Acknowledgement Form.
Merrill concedes that no
provision in those documents expressly requires Knauf to cover or guard the skylights.
In large, he relies upon the Purchase Order, which reads in relevant
Subject to the terms, conditions, and special provisions contained herein, inclusive of those
on attachments hereto which become a part hereof, the contractor shall, unless otherwise
specified herein, furnish all labor, supervision, materials, tools, machinery, equipment, appliances, shoring, scaffolding,
false work, transportation, and all other facilities necessary to perform the above scope
of work . . . .
. . . .
3. Technical cognizance hereof shall be the responsibility of Owners Lew Craig
or his designee. Said technical representative will be responsible for assuring Contractor[s]
strict compliance with Owners Safety Rules and Procedures for Outside Contractors.
. . . .
6. Such work shall be in accordance with oral directions of Owners
technical representative named herein. Contractor understands and agrees to follow Knauf Fiber
Glass Corporate Safety Rules and Procedures for Outside Contractors . . . .
Appellants App. p. 344-45 (emphasis added).
Merrill insists that Paragraph 3 requires Knauf to assure that Ellerman Roofing strictly
complied with all OSHA safety regulations, which he interprets as requiring Knauf to
cover or guard the skylights. Paragraph 3, however, speaks only of the
Knaufs promulgated house rules, not OSHA promulgated regulations.
Merrill attempts to circumvent the plain language of the agreement by claiming that
the Safety Rules incorporate all applicable OSHA regulations.
He cites 29 C.F.R.
§ 1926.501(b)(4)(ii), which states, Each employee on a walking/working surface shall be protected
from tripping in or stepping into or through holes (including skylights) by covers.
See also 29 C.F.R. § 1926.501(b)(4)(i) (Each employee on walking/working surfaces shall
be protected from falling through holes (including skylights) more than 6 feet (1.8
m) above lower levels, by personal fall arrest systems, covers, or guardrail systems
erected around such holes.).
Our review of the lengthy Safety Rules shows that they do not mention
skylights. The Safety Rules do provide that the outside contractor is responsible
for studying all of the OSHA Safety & Health Regulations for General Industry
and Construction and observing such regulations as applicable. Appellants App. 171-72.
Additionally, the outside contractor must supply all fall protection equipment.
In the Safety Rules, Knauf agrees generally to take all reasonable steps to
make the workplace a safe place for its Outside Contractors. Appellants App. p.
173. However, intent is not determined from one sentence. The Purchase
Order specifically makes Ellerman Roofing responsible for supervision during the project. Under
the Standard Articles for Fixed Price Construction Contract, the contractor acknowledges that it
has made all examinations it deems necessary to determine the hazards incidental to
the work. That document further states that the contractor shall perform the
work in accordance with OSHA standards. In the Outside Contractor Acknowledgement Form,
Doug Ellerman agreed that, as the Safety Representative for Ellerman Roofing, he had
studied all OSHA regulations for construction and would observe applicable regulations on Knaufs
As the above indicates, Ellerman Roofing, not Knauf, was required to observe applicable
OSHA regulations. Our courts have refused to extend a specific duty to
an owner where the contract merely prescribes safety rules and requires the independent
contractor to observe those rules or any laws relating to safety. Ryobi,
705 N.E.2d at 231; Adams v. Inland Steel Co., 611 N.E.2d 141, 144
(Ind. Ct. App. 1993), trans. denied.
Considering the contract as a whole, as we must, we find that the
agreement does not evince an affirmative intent to know applicable OSHA safety regulations
and to assure Ellerman Roofings compliance with each. Accordingly, Knauf was not
contractually bound to place covers or guards over the skylights. Knauf was
entitled to summary judgment on that issue.
D. Assumption of Duty by Conduct
In a final argument, Merrill asserts that, by its actions, Knauf assumed a
duty for the safety of Ellerman Roofing employees. A duty of care
may arise where a party gratuitously or voluntarily assumes a duty by conduct.
Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind. Ct. App. 1983).
The assumption of such a duty creates a special relationship between the
parties and a corresponding duty to act in the manner of a reasonably
prudent person. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 975 (Ind.
1999) (quoting Plan-Tec, 443 N.E.2d at 1219). The existence and extent of
such a duty are ordinarily questions for the trier of fact. Johnson,
712 N.E.2d at 975. However, the court will decide the issue as
a matter of law when the record contains insufficient evidence to establish such
a duty. Id.
The designated evidence shows that, before the job, Craig discussed safety measures with
Ellerman Roofings president. Craig also had a brief safety meeting and a
walk-through with two Ellerman Roofing employees. Toward the beginning of work, Craig
reminded Ellerman Roofing employees about the skylights. There is a factual dispute
regarding whether Craig inspected the roofs during performance of the repair. The
evidence most favorable to Merrill indicates that Craig came around once in a
while during the time the men were working on Warehouse D and that
Merrills brother had seen Craig on Warehouse C at some point before Merrills
Merrill likens the facts of this case to Phillips v. United Engineers &
Constructors, Inc., 500 N.E.2d 1265 (Ind. Ct. App. 1986), and to Perry v.
Northern Indiana Public Service Co., 433 N.E.2d 44 (Ind. Ct. App. 1982).
In Phillips, a contractors employee was fatally injured when he fell from an
elevated catwalk where he had been installing sheet metal siding. The construction
manager hired by the landowner had a safety coordinator who held bi-weekly safety
meetings for superintendents of the contractors. He also conducted tours of the
jobsite during which he noted safety violations or unsafe practices, and then wrote
a speed letter advising the violator to remedy the problem. Phillips, 500
N.E.2d at 1269. The safety coordinator admitted that a portion of his
responsibility was to govern the safety of contractors. Id. We concluded
that this evidence was sufficient to present a jury question regarding whether the
construction manager had assumed a duty for the overall safety aspects of the
In Perry, an employee of a sub-contractor fell while attempting to weld a
fan housing approximately 20 feet above the ground without scaffolding or other safety
apparatus. During the project, the property owner held regular safety meetings for
employees of sub-contractors, had from 6 to 25 to 30 safety men at
the site who had jurisdiction of the safety program, and employed a Safety
Supervisor to whom the injured employee had complained prior to his fall.
Perry, 433 N.E.2d at 49-50. In reversing the grant of summary judgment
in favor of the defendant, we held that there was a factual dispute
regarding the defendants assumption of a duty to the injured employee. Id.
Knauf directs us to Teitge v. Remy Construction Co., 526 N.E.2d 1008 (Ind.
Ct. App. 1988). There, the employee of a prime contractor was injured
when he fell through an unguarded skylight as he was walking backward, dragging
a piece of metal across the roof. The employee claimed the architect,
had voluntarily assumed a duty to protect the safety of all employees on
the construction site. The architects project administrator and supervisor conducted on-site progress
and coordination meetings every two weeks as well as daily on-site inspections to
verify compliance with the contract and to coordinate the work. On two
occasions, the supervisor had instructed employees to observe certain obvious safety practices.
In affirming the trial courts entry of judgment on the evidence in favor
of the architect, we held there was insufficient evidence to present a jury
question on whether the architect had assumed a duty to the employee.
Id. at 1015.
We find the case at bar more similar to Teitge than to Phillips
and Perry. Although Knauf reviewed house rules on safety with Ellerman Roofing
before the project, it did not hire a safety director for the roofing
project and did not conduct regular safety meetings during the project. Knauf
merely reminded the workers to avoid the skylights and may have occasionally visited
the site during the repairs. Knauf did not exercise the level of
activity that would constitute a deliberate attempt to control or actively supervise safety
at the job site. Robinson v. Kinnick, 548 N.E.2d 1167, 1169 (Ind.
Ct. App. 1989), rehg denied, trans. denied. Accordingly, no legal duty arose
by virtue of Knaufs affirmative acts. Summary judgment for Knauf was properly
entered on this issue.
We conclude that Knauf was not liable to Merrill as a business invitee
and that Knauf had no non-delegable duty to provide for Merrills safety.
The undisputed facts also show that Knauf did not assume such a duty
by contract or conduct. Because Knauf has shown that Merrill cannot recover
on any theory raised, summary judgment in favor of Knauf and against Merrill
BAKER, J., and RILEY, J., concur.
We heard oral argument on June 25, 2002.
Hale, our court examined the contract issue under the second exception
to the general rule of principal nonliability discussed in Issue II-B, supra.
Merrill argues that we should not consider the Outside Contractor Acknowledgement Form
because Doug Ellerman was unsure whether the undated designated form relates to the
present roofing job or to a previous one. However, Ellerman attested that
he would have signed the same form before performing any job for Knauf.
Thus, we regard the document as part of the agreement.
In this section regarding assumption of duty by contract, Merrill interjects an
additional argument that OSHA required Knauf, as an employer, to place covers over
the skylights. Knauf was not Merrills employer, however, and Merrill cannot use
OSHA regulations to expand Knaufs duty to him. Ramon v. Glenroy Constr.
Co., 609 N.E.2d 1123, 1129 (Ind. Ct. App. 1993), trans. denied; Merritt v.
Bethlehem Steel Corp., 875 F.2d 603, 608 (7th Cir. 1989) (applying Indiana law).