Julie A. Jabaay v. BMW Constructors, Inc. (mem. dec.), 45A05-1608-CT-1768

Background

On December 1–4, 2012, scaffolding erected by contractor Safway at NIPSCO’s Schahfer Generating Station was inspected and used during repair work after an explosion.
Troy Jabaay, a Safway-designated "Competent Person" and experienced union carpenter, inspected the West Scaffold between 6:00–7:00 a.m. on December 4 and initialed a safety tag indicating it was safe for use.
After discussing a BMW supervisor’s note about scaffold work, Troy climbed the West Scaffold later that day without a harness, stepped onto a handrail that came loose, and fell thirty feet, dying of his injuries.
IOSHA initially cited Safway for inadequate inspections but later dismissed the citation based on a finding of employee misconduct (Safway’s appeal succeeded).
Jabaay’s estate sued BMW and NIPSCO (among others) for negligence; the trial court granted summary judgment for all defendants, and the estate appealed as to BMW and NIPSCO.
The appellate court affirmed, holding Troy’s negligent or incomplete inspection (after which no one accessed the scaffold) was the proximate cause of his death, foreclosing recovery from BMW and NIPSCO.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants’ conduct (gratuitous or contractual duties) proximately caused Troy’s death	Defendants undertook duties and/or breached applicable safety obligations such that their negligence contributed to the fall	No evidence any defendant negligently modified the scaffold after Troy’s inspection; any earlier negligence did not proximately cause the death	Court held Troy’s own inspection failure was the proximate cause; defendants not liable
Whether disputes about applicability/adherence to safety regulations create genuine factual issues	Jabaay Estate argued genuine issues existed about which safety regs applied and compliance	Defendants pointed to undisputed facts showing Troy declared scaffold safe and no one accessed it afterwards	Court held regulatory disputes irrelevant because undisputed post-inspection facts establish Troy’s fault as proximate cause
Whether summary judgment was appropriate in a negligence action	Jabaay Estate contended summary judgment was inappropriate because fault allocation is typically for the factfinder	Defendants argued undisputed evidence negated proximate causation, entitling them to judgment as a matter of law	Court held summary judgment proper because no reasonable factfinder could conclude defendants proximately caused the death
Whether comparative fault bars recovery	Jabaay Estate sought recovery despite Troy’s conduct	Defendants argued Troy’s contributory fault was greater than defendants’ fault and therefore bar to recovery	Court effectively held Troy’s fault was the proximate and predominant cause, precluding recovery against defendants

Key Cases Cited

Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009) (standard of review and summary judgment framework)
McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906 (Ind. 2009) (appellate review of summary judgment and ensuring the nonmovant wasn't improperly denied a day in court)
Hopper v. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999) (comparative fault definition and effect)
Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048 (Ind. 2003) (allocation of fault entrusted to factfinder; court decides only when evidence yields one reasonable conclusion)
McKinney v. Public Service Co. of Indiana, Inc., 597 N.E.2d 1001 (Ind. Ct. App. 1992) (proximate cause requires injury be a natural and probable consequence foreseeable in light of circumstances)