994 N.E.2d 1243
Ind. Ct. App.2013Background
- Plaintiff Roberto Hernandez was employed by Roger & Sons (an independent contractor) and was severely injured by carbon monoxide exposure when U.S. Steel emptied a dust catcher at its Gary Works plant.
- U.S. Steel had written safety procedures (work permits, control-room authorization, visual checks, sirens/lights, PA announcements, CO detectors), but Roger & Sons failed to report crew location to the control room and the operator’s visual check did not discover the men.
- Hernandez required intensive medical care, received significant workers’ compensation benefits (~$994,757.37), and later filed negligence claims against U.S. Steel; the jury found damages of $4,657,792.87 and apportioned fault 80% to Roger & Sons, 15% to U.S. Steel, and 5% to Hernandez.
- Hernandez tendered a jury instruction seeking strict liability under Restatement (Second) of Torts § 519 for conducting an “abnormally dangerous activity” (releasing poisonous gas); the trial court refused that instruction.
- Zurich, the workers’ compensation carrier, tendered an instruction about how the jury should treat WC benefits (repayment reduces verdict differently than non-repayable benefits); the trial court refused that instruction.
- The trial court entered judgment against U.S. Steel for $698,668.93; the Court of Appeals affirmed, holding dumping the dust catcher is not an abnormally dangerous activity and declining to reach Zurich’s cross-appeal as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dumping the dust catcher (releasing large amounts of CO) is an "abnormally dangerous activity" imposing strict liability under Restatement §519 | Hernandez: CO release is an abnormally dangerous activity (high risk, severe harm, unpredictable dispersion) warranting strict liability regardless of care | U.S. Steel: activity appropriate to an industrial setting, extensive safety procedures reduce risk; residual risk can be minimized by reasonable care; community value of steelmaking outweighs danger | Court: Not abnormally dangerous as a matter of law; instruction properly refused |
| Whether the jury should have been instructed on how to account for workers’ compensation benefits in its verdict (Zurich cross-appeal) | Zurich: jury should be instructed that any WC repayment would be paid from verdict and non-repayable WC reduces verdict | Hernandez/U.S. Steel: trial court refused instruction; parties dispute proper apportionment and manner of jury consideration | Court: Issue moot because principal rulings affirmed; declined to address it further |
Key Cases Cited
- Bridges v. Ky. Stone Co., 425 N.E.2d 125 (Ind. 1981) (refusing to treat storage/use as abnormally dangerous in that context)
- Erbrich Prods. Co. v. Wills, 509 N.E.2d 850 (Ind. Ct. App. 1987) (adopting Restatement §519 analysis and cautioning courts to analyze the activity as a whole)
- Enos Coal Mining Co. v. Schuchart, 188 N.E.2d 406 (Ind. 1963) (recognizing blasting as an activity subject to absolute liability)
- Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345 (Ind. 2006) (explaining general rule that principals are generally not liable for independent contractor negligence and listing exceptions)