954 N.E.2d 948
Ind. Ct. App.2011Background
- NIPSCO contracted with Headwaters Resources (formerly ISG) to dispose of and recycle fly ash at three generation facilities.
- Headwaters built a Fly Ash Conditioning and Transfer System (FACTS) at NIPSCO's Schahfer Station and subcontracted transport of fly ash to MCS Trucking, with David Marks as a driver.
- David would load ash by climbing onto the trailer, using a hatch, with a NIPSCO operator guiding a funnel from a hopper.
- On August 14, 2007, David slipped while preparing to load, resulting in injury; he received workers’ compensation benefits.
- The Markses filed suit in 2008 alleging NIPSCO owed a duty to David and was negligent in various safety aspects.
- The trial court granted summary judgment for NIPSCO; Headwaters' summary judgment was denied; the Markses appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did NIPSCO contractually assume a duty to David? | Markses contend contract shows intent to assume duty. | NIPSCO did not affirmatively assume duty; responsibilities rest with Headwaters. | No contractual duty assumed by NIPSCO. |
| Did NIPSCO assume a duty to David by conduct alone? | NIPSCO safety rules and oversight constitute affirmative undertaking. | Safety rules alone insufficient to create a duty; relied on Headwaters. | No duty assumed by conduct. |
Key Cases Cited
- Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871 (Ind.Ct.App.2007) (employer not liable for independent contractor's employee absent contract duty)
- Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258 (Ind.Ct.App.2002) (contractual duty may arise only if contract affirms intent to assume care)
- Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360 (Ind.Ct.App.2002) (inspection/approval rights do not by themselves impose owner’s duty to enforce safety)
- Ryobi Die Casting v. Montgomery, 705 N.E.2d 227 (Ind.Ct.App.1999) (safety-rule enforcement without specific contractual duty is insufficient)
- Adams v. Inland Steel Co., 611 N.E.2d 141 (Ind.Ct.App.1993) (safety statutes/regulations alone do not create a duty through contract)
- Merritt v. Bethlehem Steel Corp., 875 F.2d 603 (7th Cir.1989) (contractor compliance with safety rules does not equal owner-assumed duty)
- Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240 (Ind.Ct.App.1994) (contractor safety obligations do not automatically bind owner to duty)
- Cummings v. Hoosier Marine Props., Inc., 363 N.E.2d 1266 (Ind.App.1977) (owner-safety duties do not arise merely from contractor obligations)