*1 943 decision, true, course, Support see Indiana Child Guide- only when proposition (West 2005), and continu are so substantial changes Commentary line prior (2) terms of the to render the ing any changes additional to its order The two order unreasonable. support 10, 2003, necessary or July dated made far changes involve Father cites each cases by this decision or other factors. advisable us. than the one before more substantial first, changed cireumstances In SHEPARD, C.J., BOEHM, and Father had lost a the facts that included RUCKER, JJ., concur. job; successfully sued his
very lucrative DICKSON, J., dissents. and relocated to Colora employer; former very luera- another do where he secured addition, Mother, In who position.
tive employ regular did not have
apparently order prior support time the
ment at the entered, regular posi had secured home,
tion, for an working out of her $90,000 salary (plus
annual $500 allowance). Id. In the second monthly car ENERGY, INC., Appellant case, included changed cireumstances (Defendant below), Mother had become em the facts that "significantly" on a full-time basis ployed v. in increasing her income while Father's ROBERTS, Jr., and Lee William declined. addi significantly come had Roberts, Beverly Appellees tion, children couple's three (Plaintiffs below). prior custody at the time the Mother's entered, had be support order was one No. 49S02-0405-CV-217. emancipated and another come lived Indiana. Supreme Court of Kirchoff, N.E.2d v. Father. Kirchoff 592, find no (Ind.Ct.App.1998). We 28, 2005. June claim in either of support for Father's these cases.
Conclusion transfer,
Having previously granted vacating opinion of the Court
thereby court; the trial Appeals, we now reverse dated provisions
vacate the of its order sup- child
July reducing Father's that Father's
port payment; and order support payment be restored $364
child (the by the amount established
per week 17, 2002, order), April
trial court its July further direct
effective 2008. We this matter for hear-
the trial court to set days the certification of
ing within 90 (1) an opinion by the clerk to consider pay
appropriate schedule for Father of this that has acerued as result
amount *5 George, Sipes,
Linda Russell India- W. napolis, Appellees.
ON PETITION TO TRANSFER FROM THE AP- INDIANA COURT OF PEALS, NO. 49A02-0210-CV-888. BOEHM, Justice.
William Roberts contracted mesothelio- ma result his work with asbestos- containing insulation as an Armstrong Contracting Supply Com- (ACandS). pany Much of his work over a thirty-nine year at power gen- career was Inc. Energy, eration facilities of PSI Rob- others erts sued PSI and on both vicarious premises Hability theories. A jury percent thirteen at fault found PSI specifying theory supported which without that result. vicariously lia-
We hold that PSI is not *6 negligence for the of its ble that contractor ACandS. We also hold general proposition a a landowner or other possessor harboring poten- of real estate a tially dangerous condition is not liable to employ- contractor or its injuries ees for sustained reason of the employed condition the contractor the circumstances of this address. Under case, however, there sufficient was evi- jury's in support dence to verdiet favor premises and under the of Roberts his wife liability instructions. Background
Factual and Procedural Roberts worked for ACandS as an insu- Toner, Stanley, Robert K. Kevin M. Ka- part- lator for most of his life. He started Osborn, thy Meg Gallmeyer, L. A. India- in time and worked full-time from Plainfield, napolis, Cavanaugh, Eric M. through through 1986 and from 1989 Appellant. employ- 1991. retired from full-time He Anderson, Knight Hays, S. Keith J. In- in but part- ment continued work Curiae, dianapolis, Amicus Indiana Manu- time until 1997. ACandS was the nation's Association. facturers peri- largest insulation contractor over this with insulation con- od. Roberts worked IL, Kennedy, L. Chicago, Jason Amicus taining from the time he started asbestos Curiae, Markets, Food Inc. O'Malia early 1960s. Roberts was member employer stopped his in 1956 until working of Heat and Frost Insulators Local 18 early in 1980s. using it publications International and received its services supplied its insulation ACandS union's beginning 1958. Articles and other custom- variety industrial to a magazines urged asbestos workers to use including employees, assigned and ers in- safety "green and sheets" equipment, Roberts, and service insulation to install magazines from 1969 cluded with the routinely Roberts of facilities. a number through 1976 discussed asbestos-related removed, installed, handled, and otherwise Roberts testified that he problems. health containing insulation directly with worked of asbestos dangers did not learn the true working that he was He knew asbestos. until the 1980s and that ACandS did recog- could insulation and with asbestos employees for the until the supply masks that sight. He estimated nize asbestos on in the 1970s. He asserted sometime spent his career he the course of over 1970s, products he noticed asbestos years gener- at various eighteen fifteen out, no one told him being phased were but PSI, the electric stations owned ating safety it was for reasons. of Indiana. servicing large part utility diagnosed peritoneal Roberts and into the In the late 1960s In August in 2001.1 mesothelioma at PSI's Dresser often worked Roberts sued for Roberts's year, he his wife Roberts, According to station. generating loss of con injury and for Mrs. Roberts's at this station was insulation the asbestos damages from PSI They sought sortium. condition, up," "rag- very poor "torn defendants, sixty including other both work, his own Roberts gy." performing of asbestos and other land manufacturers asbestos, and he was exposed was often landowners, As to the the com owners. the material as the result exposed also premises asserted both a plaint employees and other of activities of PSI claims theory and also that the Roberts's who Roberts and others PSI contractors. general rule exceptions fell under protective no with him often had worked vicariously is not liable principal masks, respirators. PSI's cor- clothing, *7 ACandS, independent con acts of its fre- testified that he porate representative tractor. working insulators quently saw ACandS's 1960s plants at PSI
with asbestos jury tried to a on both The case was 1970s, any but never saw them take and defendants, remaining name- counts. The protect themselves from precautions PSI, objected to not all of the ly some but breathing asbestos dust. trial court's instructions on the Roberts's for liability. They also moved exposure and theories of A link between asbestos at close of on the evidence early judgment as mesothelioma was established at the close again Roberts's case and pre- and 1950s. The evidence the 1940s court The trial of all of evidence. sented at trial indicated ACandS submitted the both motions and have been aware of asbestos- denied or should trial, jury. By point at least case to the problems related health explains: 1. The National Cancer Institute contracted the disease while mesothelioma mesothelioma, they working environments where "malignant a rare form of cancer, Cancer Insti- asbestos fibers. Nat'l a disease in which cancer cells are breathed chest, Mesothelioma, lining lining tute, in the http://www. mesothe- found sac (last liomaweb.org visited cavity, lining the abdominal or the around /mesothelioma.htm malignant 23, 2005). people with the heart." Most June 950 only supported by and the verdict is sufficient evidence
most defendants had settled remaining defendants were PSI and three weighing judging without the evidence or owners, premises Lilly, phar Eli a other credibility of the witnesses. Id. Both manufacturer, Soya, a maceutical Central granted that the rules mandate motion be Kroger, gro a retail processor, food when there is insufficient evidence under cery jury general chain. The returned a support a verdict. v. the law Huff verdict, finding compensatory damages of Co., 414, 266 Ind. Travelers Indem. 363 $2,800,000 Roberts, after trial for who died (1977). 985, N.E.2d 990 $1,000,000 began, and for Mrs. Roberts. jury rejected plaintiffs' The claim for jury general The returned a ver jury The fault punitive damages. allocated challenges arguing dict. PSI the verdict PSI, percent percent thirteen twelve sup the evidence is sufficient to Roberts, and none to the other three de it, port jury not challenge but does seventy-five remaining per fendants. The appeal. procedural instructions on In this nonparties cent was allocated to sixteen posture, general "a verdict will be sus including thirty-six percent to ACandS. if tained the evidence is sufficient to sus judgment The trial court then entered any theory lability." tain Picadilly, $364,000 against for PSI Roberts and (Ind. Colvin, 1217, Inc. v. 519 N.E.2d 1221 $130,000 appealed to his wife. PSI 1988) (citing Fanning, In re Estate 263 Appeals the Court of held that PSI could 414, 417, (1975); 80, Ind. 388 N.E.2d 82 defendant, premises held liable as Pollard, City 241 Indianapolis v. Ind. judgment therefore affirmed the based on (1960)). 66, 72, 169 N.E.2d 408 Inc., general judgment. Energy, v. PSI Roberts, (Ind.Ct.App. 479 N.E.2d
2004). granted This Court transfer. PSI Liability I. Vicarious Roberts, (Ind.2004). v. N.E.2d Acts of ACandS of Review Standard parties agree that ACandS challenges the denial of its provided indepen its services to PSI as an motion un judgment on the evidence long-standing gen dent contractor. "The der Indiana Trial Rule 50 and the denial of principal eral rule has been that a is not its motion to correct error under Indiana negligence liable for the of an reviewing Trial Rule 59. In a trial court's Inc., contractor." Emergy, Carie v. PSI ruling judgment on motion for on the (Ind.1999). Indiana evidence, appellate court is to consider recognizes exceptions gen law five to this only the evidence and reasonable infer rule, concerns, public policy eral based on non-moving ences most favorable to the *8 against which permitting princi militate a 916, party. Wiegand, v. 617 Clark N.E.2d pal responsibility to absolve itself of for (Ind.1993). considering 918 In a motion to by conducting some activities them correct error based on a claim of insuffi through independent an contractor. Id. evidence, cient if the trial court determines Roberts contended in the trial court that there is a total absence of evidence (1) exceptions applied two of these here: supporting necessary element of the "intrinsically dangerous" exception- the plaintiff's judg case the court should enter requires perform "where the contract the Emry, ment for the defendant. State v. work," intrinsically dangerous ance of 19, 753 N.E.2d 21 (Ind.Ct.App.2001). On (2) hand, if precaution" exception- the other there is some evidence the "due verdict, probably injury "where the act will cause support jury's the trial jury's precaution court must determine whether the to others unless due is taken."
951 below, Bagley Insight in- Roberts cites v. Commu trial court explained As is ncations, Co., 584, N.E.2d 587-88 point- theories. As Carie on both structed (Ind.1995), that an proposition for the em in out, these principal's ed independent of an contractor ployee on the idea is based exceptional situations negligence from the for principal recover position in the best principal that the "is employee or a of of the contractor fellow minimize, and administer identify, an Bagley the contractor. Richard was activi- in the contractor's risks involved Friend, of Sam subcontractor however, Here, contends ties." Id. for a cable Steve Crawford. installer, it and the force that with considerable turn, Crawford, acting in was as a subcon containing of facilities ashes- other owners Communications, Insight a cen tractor than position in no better tos were company. tral Indiana cable television in the risks inherent ACandS to evaluate injured in the course of his Bagley containing asbes- working with insulation against brought work for Friend and suit tos. Friend, Insight, arguing, and Crawford among things, Insight other the In- Inability Principal A. hiring in Friend negligent were Crawford Em- or its dependent Contractor as their subcontractor. This Court stated ployees "may independent before it as an the issue employee, injured job on the contractor's excep term used to describe these The conduct, as a result of the contractor's histori tions-"nondelegable duty"-has negli damages party recover from a who in context of cally developed been contractor, gently hired the notwithstand indepen of an negligence claims that the ing general rule that one who uses an contractor should be attributed to the dent independent contractor will not be liable Dobbs, Law principal. Dan B. for the acts of that contractor?" Id. (2001). § at 921-23 In that Torts neg on Negligent hiring focuses 584. context, Appeals, following Court ligence principal selecting of the states, majority in the of other precedent contrast, previously de contractor. had concluded in a number of cases general rule of exceptions fined of the contractor employees indepen nonliability negligence exceptions to assert could not invoke these principal had found the dent contractor of their principal of the for acts but for negligence, for its own liable not contractor of employer as an in carrying contractor out negligence of its Co. v. principal. Lowisville Cement duty" principal. "nondelegable (Ind.Ct. Mumaw, 1219, 1222 448 N.E.2d Bagley summarily affirmed Court Co., App.1983); rejecting Insight v. New York Blower the claim that Appeals Johns duty pro "had breached a 442 N.E.2d Crawford (Ind.Ct.App.1982); proper safety procedures" but went Co., vide Peabody Ind.App. Hale v. Coal issue." negligent hiring on to address "the (1976). 336, 344, If Id. at 586. Indiana, that doctrine is followed *9 against claim preclude
would
Roberts's
that some states
acknowledging
After
negligence
to the extent it is based on
(Second)
Torts
and the Restatement
of
ACand$
failing
provide adequate
of
(1965)
negli-
a claim for
permitted
§ 411
employees
safeguards
adopt
or because ACandS
did not
gent hiring, the Court
inherently
law.
thought
engaged
to be
doctrine under
Indiana
general
were
Rather,
liability
negligent
for
it held
dangerous activities.
contrary
purpose
of the
imposed workers is
a
could be
selection of
contractor
compelled by
that were
not
their
exceptions
same cireumstances
and is
under the
to the rule of
Id. at
recognized
exceptions
underlying policy
as
concerns."
588.
the contrac-
nonliability
negligence
stated,
objective
of
"our
is no less
The Court
at 587. This
Bagley,
tor.
protect
exposed
workers who
be
to exercise
permitted a claim for "failure
protect non-employ-
such risks than it is to
competent
employ
reasonable care to
parties....
ee third
Where a contractor's
activity
if
to be
and careful contractor"
the
non-delega-
for a
employer
responsible
excep-
fell
one of the five
conducted
within
injured
duty,
ble
the contractor's
worker
Indiana law under
tions. Id. We thus have
discriminately
deprived of
should not
be
failure to
Bagley recognizing claims for
compensatory damages
access to full
but
exercise care
the selection of
contrac-
equal
have recourse
to that of an
should
the same cireumstances as the
tor under
injured
found
bystander."
Id. The Court
liability
ac-
imposes potential
law
for the
fit
Bagley's negligent hiring claim to
the
contractor,
carefully
if
even
tions of the
performed by
the
exception for acts
selected.
probably
independent contractor that will
injury
precau-
to others unless "due
then considered whether the
cause
The Court
viewed,
claim
by
Bagley's
tion" is taken. So
negligent hiring claim could be asserted
Bagley
injured
failed because
was
when a
employee
an
of the contractor.
Court
employee slipped
of
fellow
and fell on him
noted the earlier line
decisions
driving
from a
he was
a stake
Appeals
Court of
that held that these five
ladder while
ground.
probability
in the
There was no
exceptions permitted only
parties,
third
work,
employees,
injury
to that
would occur from his
not the contractor or its
simply driving
for acts of which consisted of
a stake
principal's
assert
customary
Acknowledging
ground
precau-
contractor.2
these
into the
and no
cases,
the re-
Bagley
Accordingly,
court held "such
tions were omitted.
restric
injured
exception
of
not met.
exceptions
quirements
tion of the
to exclude
this
were
employee
employee argued
compa-
example,
that the cement
2. For
Hale involved an
repair
ny
be liable because it failed to
should
hired to construct
coal-han-
a subcontractor
principal's
dling
at
coal mine
pipes
facilities
the latent defect in the
that caused his
scaffolding.
who fell from broken
Ind.
injury
nondelegable duty.
and that this was a
employ-
App.
alert the contractor. See Restatement Liability "Intrinsically Danger- B. (Second) Torts, ous" Activities Similarly, § 348. held, Bagley at least under some cireum- agree recovery We also stances, negligent selection of a contractor inherently exception dangerous under the if may expose principal liability. But supported by was not the evidence. The imposed principal lability law on the jury was instructed that: supervise or monitor the for failure imposes duty on a landowner law activities, contractor's the result is added performed if is intrinsi cost for minimal benefit. We think that to the work cally dangerous. "intrinsically Work is the extent an contractor is problem dangerous" danger if the exists employed to redress or correct doing activity regardless even if the contractor's of the principal, for the intrinsically work is activity may be viewed as either intrinsi method used. The cally dangerous injury if the risk of cannot be dangerous require precau- Although phrased case, PSI, 3. this instruction is including hap- principals in this pened employed to be landowners who duty terms of a "landowner" it was Roberts, given principal's ACandS, as an instruction on a lfiabili- and therefore on their ty for acts of an contractor. The premises.
954 significantly by or reduced (Ind.1989),
eliminated N.E.2d 382 which this Court taking proper precautions. inherently described asbestos fibers as "an ... dangerous foreign substance a toxic argues Roberts that when he worked inherently dangerous PSI, substance an performed intrinsically dangerous he delegable indepen- that is not to an foreign work ... and a hazardous sub- product challenge not dent contractor. PSI does stance." Id. at 384-86. Roberts asserts an accurate this instruction as statement nothing that can make asbes- that there is Rather, contends the evi- the law. PSI responds tos safe. that al- fibers support dence does not the verdiet. though inherently asbestos be an dan- given substance,
For the reasons in Part not that gerous does follow below, D estopped Roberts is not from working containing with material asbestos arguing working that with asbestos was intrinsically dangerous is work. PSI as- intrinsically dangerous despite his simulta serts that the evidence at trial demon- that neous contention PSI is liable dangers working strates that the with precautions failure of to take due ACandS could have been minimized if asbestos conclude, injury. to avoid the We howev proper precautions. Roberts had taken er, support that the evidence does not liability Roberts himself asserted based on recovery theory. on this "The term "in precautions" excep- failure to use "due herently intrinsically dangerous or has tion in Part This assumes discussed I.C. necessarily been defined as work attended injury significantly that can be reduced skillfully danger, with no matter how and, out, points as PSI is inconsistent with carefully performed." it is Am.Jur.2d inherently the claim that the work is dan- (1995); § Independent see Contractors Ellenbecker, in- gerous. Dr. Michael an Meyer, Shell Oil Co. v. Roberts, by hygiene expert dustrial called (Ind.1998) (work intrinsically dan testified to the methods available at the if gerous danger doing exists exposed time Roberts was to asbestos activity regardless of the method employed have could been to reduce his used). exceptions Unlike the other four exposure. possibility He described the nonliability of principal, the "inher substituting other insulation materials for ently dangerous" exception normally as asbestos, practice isolating the as- with not sociated strict does fibers, pre- bestos and other control and require negligence part on the of the con Dobbs, § vention measures. Dr. Ellenbecker testi- supra tractor. at 921. It imposes possible perform for activities that are dan an fied "it's installation nature, merely they gerous because minimized, where the hazards are but risky are carried out in a For manner. mesothelioma, when I talking we're about example, enterprise if hires inde any think it's difficult to do with activities pendent crops poi contractor to dust you completely asbestos where eliminate son, damage neighbors' it is liable for argues the hazard." that this tes- Roberts crops regard negligence. without Id. timony that performing shows asbestos intrinsically dangerous activity work is an
Roberts asserts that asbestos it because mesothelioma can be caused "any intrinsically dangerous self is very exposures to asbestos. He rea- small inherently dangerous fi work causes dis- sons because asbestos-related breathing space bers to enter the of hu eases are often terminal and can be caused intrinsically dangerous mans is work." He Canada, Inc., points Carey by very exposures, to Covalt v. small it follows
955
intrinsically
electricity
dan-
The same is true of
and a
working with asbestos
ous.
that,
gerous.
number of other
substances
if mis-
handled,
dangerous.
can be
agree
working
with as
We
but
is not
perilous,
bestos can be
C. Due Precaution
intrinsically dangerous
it
enough to render
Roberts
contends
that PSI
lability
as that term is used to establish
inju
could have been found
for his
liable
for actions of an
contractor.
precaution" exception
ries under the "due
example
For
in McDaniel v. Business In
general
non-liability
to the
rule of
for acts
(Ind.
Ltd.,
Group,
D. Estoppel Judicial on "intrinsically instructions dangerous" theory that "it is the entire PSI asserts that because Rob plaintiffs' plaintiffs' case that disease could argued erts at trial that his illness could prevented." have been think We the trial avail prevented have been the use of court fairly objection could take this anas judicial safety precautions, able he is now that the instruction is supported by ly estopped arguing from that asbestos evidence. intrinsically dangerous. work is "Judicial
estoppel 'prevents party asserting from position legal proceeding in a inconsistent E. Liability Conclusion as to Ac- previously with one asserted." Meridian tions Independent Contractor *14 1126, Zepeda, Ins. Co. v. 734 N.E.2d 1133 sum, Roberts has no claim against Grain, (Ind.Ct.App.2000) (quoting Wabash for PSI activities of ACandS as PSI's inde- (Ind.Ct. Smith, 234, Inc. v. 700 N.E.2d 237 (a) pendent injuries contractor because A App.1998)), party trans. denied. he suffered came from a situation he was properly plead alternative and contradicto (b) address, employed to asbestos is not theories, ry judicial but estoppel precludes "inherently dangerous" as that term is in party repudiating a from assertions in exception used to nonliability for own party's pleadings. Marques May v. (c) contractors, acts of and er, (Ind.Ct.App.2000), 727 N.E.2d 778 injuries he sustained are common trams. denied. application Because in among industry workers his and the intrinsically dangerous exception requires necessary precautions he identified are the a that showing the risk created responsibility employer, of his not PSI. minimized, work prevented could not be says, "having PSI prevailed theory on the Liability II. Premises that pre Roberts's illness could have been argues Roberts that can PSI through vented the use of available indus injuries be held liable for his because Rob hygiene techniques, trial Roberts is es- erts was PSI's business invitee and PSI topped from on arguing appeal that his duty breached its of care as a landowner. preventable." illness was not Roberts rule, a general property As owner has no that argued counters he that his disease duty employees to furnish the of an inde prevented by could have been substitution work, pendent place contractor a safe of non-hazardous insulation for asbestos duty imposed least as that on employers. done, insulation. If this had been Roberts Glass, GmbH, Merrill v. Fiber Knauf argues that he would not have been en N.E.2d 1264 (Ind.Ct.App.2002), gaged intrinsically dangerous work be property trans. denied. The owner must working cause he would not have been property however maintain the reason with agree asbestos. We that Roberts is ably safe condition for business invitees not precluded arguing working from including independent contractors intrinsically dangerous asbestos is employees. their adopted Indiana has and that pre his disease could have been (Second) Restatement Torts formulation vented substitution of another insulat of landowners' on the workers ing argue material. did not PSI Irvin, premises. Douglass v. trial court that judicially Roberts was es- (Ind.1990). 368, 370 As the Restatement topped presenting theory from (Second) explains: Torts object appeal does not on to the instruc jury subject tions to A intrinsically possessor on the dan of land is gerous exception. argued in objecting physical harm caused to his invitees Con if, Independent to Furnish if, only Premises but on the land
by a condition
Place to
Employee
His
tractor or
he
Safe
Work,
Repairs,
Contract
Where
(a)
of reason-
by the exercise
knows or
(1958).
liability to
Premises
condition, A.L.R.2d
would discover
able care
solely
exposure
their
on
insulators based
involves
realize that
and should
would
premises thus
on the
to insulation
invi-
harm to such
risk of
unreasonable
law
existing
case
present an extension
tees, and
can
far as we
jurisdiction,
in this
so
(b)
not dis-
they
will
expect
should
.
determine, everywhere else as well PSI
danger, or will fail
or realize the
cover
this extension would
posit
and amici
it, and
against
themselves
protect
of landowners who
large
number
affect
(ec)
care to
to exercise reasonable
fails
asbestos on site
find themselves with
danger.
against the
protect them
require services
required or will
either has
(Second)
Torts,
§ 348.
Restatement
installers or removers.
professional
348A(1),
Further,
is meant
which
section
conjunction with section
read in
to be
correctly
out that
points
Roberts
is not liable
possessor
"a
of land
provides,
*15
Restatement,
literally, sup
if taken
to
harm caused
physical
to his invitees
injury
asserts
from
his claim. He
ports
activity or condition on the
by any
them
(asbestos) on PSI's land which
"condition"
to
known or obvious
danger is
land whose
point PSI "should realize"
at least at some
antici-
them,
should
possessor
unless the
if
risk"
no
an "unreasonable
constitutes
knowledge or
despite such
pate the harm
evi-
taken. There was
are
precautions
given be-
For the reasons
obviousness."
was aware
ACandS
denee that PSI
low,
jury could have
that the
we conclude
However,
precautions.
took no
workers
prop-
to maintain its
that PSI failed
found
of the
language
we do not believe
reasonably
condition.
erty in a
safe
contemplation
was framed
Restatement
liability
majority of premises
In the vast
conducting
danger
by those
of claims
guest or a
cases,
is either a
plaintiff
"condition."
activity
addressing
or
ous
premises.
of the
possessor
of the
customer
illustrations ad
All
the Restatement's
of
where the
reported
a few
cases
There are
in which the claimant
fact situations
dress
an
an
of
plaintiff is
customer,
person
not a
on the
guest
or
is
those,
contractor,
of
every
one
but
A
remedy
"condition."
to
premises
rise
"activity"
gives
or
to
"condition"
that,
just
attempt
an
is
Restatement
not created or ad-
liability is a condition
ought
law is or
what decisional
formulate
(a preexisting
contractor
by the
dressed
precise
It
not a statute whose
to be.
roof)
activity conducted
in the
or an
hole
an act
to deference as
wording is entitled
or the
somebody
plaintiff
other than the
Harold
government.
branch of
equal
of
(demolition
work
employer
plaintiff's
Maier,
Role
a Re
The Utilitarian
G.
contractor).
Here,
liability
another
Low
in a Common
statement
(asbestos on the
on the condition
premised
of Conflicts
Is
System: How Much Judicial
site)
installing as-
activity (removing or
Deference
are these
or "Who
to the Restaters
Due
bestos)
plain-
reason for the
that was the
541, Ind. L.J.
anyway?", 75
guys,
early
The
property.
on the
presence
tiffs
(2000).
applying
interpreting
In
liability recognized
landowner
cases on
Restatement,
necessary to con
it is often
give
did not
dangerous condition
that a
applying
and cases
the illustrations
sider
person
hired
lability to
rise to
underlying them.
the theories
Annotation,
Duty Owner
"repair" it.
example
knowledge
This case is an
of the intersec-
becomes relevant." Douglass,
tion of two theories of common law liabili-
jury to conclude that PSI breached its
A. Knowledge
Dangers
the
(1)
duty, finding
danger
"that
the
was not
of
(2)
Roberts;
known or obvious to
and
PSI
challenges
jury
the
verdict
anticipated
should have
the harm." PSI
(b)
based on subsection
of section 348 of
Roberts,
Emergy,
468,
Inc. v.
(Second)
the Restatement
Torts As
of
(Ind.Ct.App.2004).
477
This formulation
clear,
this subsection makes
PSI is liable
compares
knowledge
the
of the landowner
injuries only
for Roberts's
if PSI should
(PSI)
(Roberts)
to that of the
of
have foreseen that Roberts would fail to
contractor,
independent
the
rather
than
protect himself. Davis v.
Energy
Hooster
of
the
contractor
Inc.,
Coop.,
Rural Elec.
19 F.3d
369
(ACandS).
(7th Cir.1994).
In analyzing
think this
a
We
element of liabil
whether
ity
knowledge
turns on the
of the indepen
expected
landowner should have
an injury
contractor,
duty
therefore breached its
to an invi
dent
the contractor's
em
Merrill,
In
tee,
ployee.
Knauf hired Ellerman
a court
purpose
will consider the
Merrill,
Roofing
repair
to
its roof.
intent of the invitation and the relative
injured
Merrill,
employee,
Ellerman
was
when he
knowledge of
parties
771
through
skylight
fell
in Knauf's roof.
N.E.2d at 1265. "The determination of
Comment by progress would instead fluid and resulting injuries § 427 refer following abdomen, causing within growing lions and of escape non-negligent from the vital any of the into by growth pain of examples operations blasting urban structures, pain umbilical as the such activities. dangerous abnormally layers. the muscle grow into ... It can Court, have we by the acknowledged As of the back into the bones grow It can "an fibers as asbestos described previously This organs. into the vital [or] ... a toxic dangerous substance inherently pain. amount of a tremendous causes inherently dan ... an substance foreign require that would pain The kind for hazardous ... and a gerous product to con- of medicines infusion continuous 954, quoting Co Op. eign substance." would be possibility third ... [T]he trol Inc., Canada, N.E.2d Carey valt v. enveloped become the intestines that (Ind.1989). likewise have We 384-86 sense, by the strangulated and, in a normal, use of expected that "[the noted unable to would be that he tumor such its with entails contact products asbestos anything, swallow eat, to even unable harmful resi potentially and migrating natural secretions body's own and ACandS, Inc., 767 v. Stegemoller due." It would be body. in the up build would (Ind.2002) as a (allowing action N.E.2d he where pattern, obstruction the bowel by "bystander" act products vomit, tubes require continuously would con result of contracting disease as spouse and his contents his stomach to drain on brought home asbestos fibers tact with that, I ... And own secretions stomach's husband, a un clothing person pain is feel, with in combination insulator). ion meso- can die of way one horrible most Mares, diagnosed who Dr. David thelioma. mesothelioma, stated peritoneal plaintiff's out pointed Mares 1208-05. Dr. Trans. at doubt, caused "it was that, without "uncontrol- pain will be that Mr. Roberts's Dr. Trans. at 1208. exposure." asbestos the "best and that and "unbearable" lable" testimony de- vivid provided also Mares relief." pain provide will medications He deadly nature. the disease's scribing 1220. Trans. at ais mesothelioma malignant that declared mesothelioma, curable." "It is not process. Describing fatal disease the nature Ph.D., the date The time from ex- Brody, at 1196. R. Trans. Arnold pathologist person in a cavity date of death is where diagnosis to the peritoneal "Our plained: mesothelioma peritoneal are, the stomach malignant like organs our some of at 1206. Trans. in the year or less." sit usually spleen "a and the liver and the lined explained: that is cavity. Dr. Mares And peritoneal ... cells, the mesothelium layer of single ways that Mr. possible are several There cells, dis- And of those with this there is cancer can be involved when Roberts cells, mesothelioma." being recurrent it is first process. The those mesothelial ease stated, Brody Professor at 1888. Trans. in the abdomen of fluid accumulation cause types can with this fiber taken off of the asbestos needs "[AJll perfectly are they ... all be, of mesothelioma ... That can procedure [tapping] He at 1884. Trans. life, carcinogens." good course, limiting to one's painful of asbestos no safe level ... observed hospital tied to the have to be established ever been has exposure early progress That's kind we which way could be no level below ... Another "[tlhere disease *21 know it to absolutely be safe and will not Thus we see that asbestos workers are cause mesothelioma." Trans. at 1429. extraordinarily susceptible to this insidious and virulent disease that usually will go
One of the more aspects insidious of this undetected for decades but suddenly then fatal disease is the fact that symptoms its erupt with devastating and almost suddenly appear inevita- often decades after a bly fatal consequences. exposed worker is Elimination asbestos. Regarding this enormous latency period virtually risk is exposure impossible between the requires asbestos and the because it appearance first preventing every possi- symptoms mesotheliomas, of malignant bility of Dr. asbestos workers inhaling any as- Brody testified that probability for the bestos fibers. latency period to be years less than 10 is Conceding that working with asbestos zero; about latency periods of 10 to 14 can perilous, the Court nevertheless years 0.5%; about years, for 15 to 19 still concludes that the work qualify does not
just more, about and for years 3%; for the intrinsically dangerous exception to Brody 96%. Dr. agreed with an estimate the rule of subcontractor nonliability be average period in these cases cause, although dangerous, "proper pre from exposure initial to death is about 32 cautions can minimize the risk of injury." years. at Trans. 1480-82. Id. at 955. As authority for this conclu specifically Court notes the testimo- sion, the Court cites Carie v. Energy, ny of Dr. Michael Ellenbecker emphasiz- Inc., 694 N.E2d 735 (Ind.Ct.App. ing that "when we're talking about meso- 1998). Carie found the intrinsically dan thelioma, I think it's difficult to any do gerous exception inapplicable, noting that activities with you asbestos where com- nothing is intrinsically dangerous "Itlhere pletely eliminate the hazard." Op. at about generating station maintenance in quoting Tr. at 2588. Asked whether there itself," and of that the accident was caused any is safe exposure level of to asbestos in by the negligence collateral others, the context of the risk developing meso- "proper precautions were not taken thelioma, Dr. Eugene answered, Mark "I during the cover removal process." Id. at don't any think there is safe level." Tr. at 734. Elaborating on point, the last Likewise, 2021. Dr. Edwin Holstein testi- citing earlier opinions of the Ap Court of fied that there is no recognized safe level peals, the court declared that "[aln instru of exposure to asbestos insulation such intringical mentality or undertaking that no mesothelioma would oceur in insu- ly dangerous if injury the 'risk of involved lation workers. explained, He "There in its use can be eliminated or significant be such a level at very, very, very low " ty taking reduced proper precautions,' levels, but we don't know what it is. What explained proper inquiry we do know is very "[the that even expo- small whether the taking sures have of proper precautions caused mesothelioma in some people." fact, Tr. at would significantly 1559. In reduce or eliminate Court itself acknowledges the risk of injury." that "it is Id. (emphasis clear that at 735 added).1 words, The emphasized working any my level of asbestos can be associated with mesothelioma." Op. opinion, importance. are of crucial Other 956. wise this "proper precautions" rationale transfer, granted 1. We vacating the Court "summarily affirmed" footnote as to the Appeals opinion, Carie Energy, Carie v. PSI intrinsically dangerous exception issue. Inc., (Ind.1999), 715 N.E2d but *22 it is with asbes- So reduced. significantly "intrinsically danger- the conflate would precautions" the "due tos. exception with ous" "intrinsi- the eviscerate and thus exception only "pre- that today asserts The Court altogether. exception cally dangerous" Roberts's have minimized could cautions activity, also intrinsically dangerous An conclu- justify to its to asbestos" exposure dangerous "abnormally an to as
referred is not asbestos "working with that sion Torts, See- Restatement in the activity" But at 955. dangerous." Op. intrinsically as follows: explained § is therein ond only must enough. Not is not minimizing activity risk; is an determining whether "minimized" the In have precautions due following fac- dangerous, the to eliminate abnormally been able they must have of asbes- considered: it. The risk tors are to be reduce significantly can- contracting mesothelioma workers tos (a) degree of risk high of a existence re- significantly nor not be eliminated land or person, to the harm of some example of quintessential It is the duced. , others; chattels activity. intrinsically dangerous an that re- (b) the harm that likelihood great; it be from will sults conclusions, Court Summarizing its by risk (c) inability to eliminate by stating in part I part concludes care; of reasonable the exercise for against PSI no claim "Roberts has ACandS$ is not independent (d) activity as PSI's to which activities of extent usage; (a) a matter of common injuries he suf- because contractor he em- was came from situation (e) activity to fered inappropriateness on; (b) 'in- address, is not it carried asbestos where is to place ployed is used as that term herently dangerous' (f) its value to which extent nonliability for acts to exception danger- its outweighed community is contractors, Id. at 957. ..." attributes. ous (a) disregards that rationale my view It is inability full requires the analysis This Moreover, broad and it is too precedent. risk, merely signifi- not eliminate any and all claims may misapplied be view, pref- my this is it. In cantly reduce even employees of subcontractors injury to appellate Indiana prevailing erable excep- recognized any one of the five when ex- intrinsically dangerous view that As to ratio- clearly applicable. tions are cannot to risks that apply not ception does recog- it fails to (b), strongly I believe nale reduced." "significantly working with asbestos fact nize the the intrinsi- the view that applying Even the re- activity, intrinsically dangerous applicable dangerous exception cally principal which the sponsibility eliminated, or cannot be risks either where delegate to a subcontractor. not precaution, due reduced significantly II, acknowledges the Court part contracting risk of clear that the appears to "maintain owner duty property of a working with demands mesothelioma reasonably safe condition property intrinsically dan- still be deemed asbestos including invitees above, business the Restatement As noted gerous. Id. at employees." and their blasting contractors and urban of lions escape
cites the However, that asbestos emphasizing 957. abnormally ac- dangerous examples of on was the reason Roberts removal can be Obviously, such risks tivities. majority opines premises, the PSI precaution, due reduced with somewhat claim support Roberts's does the law or even eliminated they cannot be but
"to the extent it is based on PSI's knowl- meates the majority opinion. Where a edge of asbestos on the property and possessor employs an independent contrac- ACandS$ awareness that was not requiring tor respect to activities or conditions safeguards." Id. at 959. In a significant on the land known or obvious persons amplification premises Hability jurispru- thereby coming land, onto the posses- *23 dence, today the Court that, announces sor will have no except in those henceforth, where the invitee is the em- extraordinary circumstances where the ployee independent of an contractor em- possessor should anticipate harm notwith- ployed remedy to dangerous condition, standing the obviousness of the risk. The occupant/owner's the knowledge should be clear, however, Restatement is that in the compared with that of independent the situation, latter possessor the remains ac- contractor, not merely the knowledge of its countable. These principles have long employee. This new rule sig- alone should been recognized. Professor Prosser ex- nificantly provide the protection sought by plains: majority the for the use of independent [Wlhere a condition is ... one which remediation contractors without the addi- cannot negotiated be with reasonable tional by measures taken majority the safety even though the fully invitee is I generally believe assault and undermine aware of it ... jury may the permit- be important principles of owner/principal lia- obviousness, ted to find warning or bility and its resulting enhancement of even knowledge is not enough. It is construction safety. worker generally agreed that obligation the believe, however, I that this innovation to the condition of premises the is of is detrimental important more and es- importance such that it cannot be dele- principles tablished responsibility gated, and that the occupier will be lia- accountability in tort. The Restatement of ble for negligence the of an independent (Second), § Torts recognizes that a contractor to whom he entrusts mainte- ' "possessor subject of land is for repair. nance and physical harm caused to his invitees Prosser, William L. § Law Torts p. condition on the land" only if the possessor (1971). I am opposed major- 394-95 knows or should discover and realize that ity's rule, new permitting a landowner to it "involves an unreasonable of harm," risk abandon to contractors all re- expect should "they will not discover sponsibility for the risk of harm to invitees danger, realize the protect or will fail to extremely from dangerous conditions on it," against themselves and then fails to land, the thus undermining foregoing the exercise reasonable protect care to principles of responsibility well-established invitees from the danger. The word and accountability under tort law. "they" injured invitee, refers to not Even with the employer. majority's invitee's obligation This modification of qual- is the rule to provide special protection A(1), ified Section 348 which states that possessor principals is "not employing liable to his certain independent invitees" injuries contractors, "by caused activity or must recognized condi- be tion on the land danger whose there is a limit to known or the landowner's reason- them, obvious to umless able possessor reliance on the contractor. Pursuant anticipate should § the harm despite Restatement, such to 348 A of the other knowledge or (emphasis obviousness." add- courts have held that a landowner ed). A(1) liable for an independent Section 348 inju- contractor's thus allows accom- very modation for the concern that per- ry by dangers from known or obvious con- 968% submit, A(1). I significant, have real More should landowner if the ditions comparative intrinsic constraint would the contractor risk that
ized the pres- In the system itself. fault allocation despite employees or its itself protect jury allocated case, example, ent For exam danger. nature obvious PSI, per- twelve fault percent thirteen Co., Manufacturing Zep v. in Miller ple, Roberts, thirty-six percent fault to cent (1991), an em P.2d 249 Kan. ACandS, the remain- nonparty fault to into a he fell when injured was ployee This shows nonparties. fault to other ing property. landowner's on the pit concrete role of significant recognition clear in favor jury finding affirmed The court contractor, And ACandS. the evi reasoning that employee, case, landowner where from this apart find jury to for the was sufficient dence contrib- independently have shown to *24 anticipated have should landowner that the risk to substantially increase uted to In Id. at 515. risk. prevented likely very worker, will other cases Co., Utility Public Mt. Carmel v. Watkins of fault allocation greater in an even result 519 Ill.Dec. Ill.App.3d contractor. remediation independent pro (1988), worked plaintiff N.E.2d trusting the served is better Justice tanks large in two crude oil stored cessing juries than of civil judgment sound power an uninsulated near constructed judicial doctrines. erecting protective an aluminum injured when He was line. with my disagreements Notwithstanding on a walking carrying while he was pole today re- discussion the Court's much of power tanks touched above catwalk employees injuries to liability for garding court dis The trial 11-12. Id. at line. contractors, I concur independent Ilinois complaint, but missed in this case that conclusion its evidence reversed, that holding Appeals Court the instructions under was sufficient the defendant question whether jury ais the trial jury's verdict sustain injury the risk anticipated have should reasons, I For these judgment. court's Id. danger. obviousness despite the in result. concur Foods, Sunlight Boatwright v. 13. (Fla.Dist.Ct.App. Inc., 592 So.2d J., RUCKER, concurs. con an 1991), from a in a fall injured fatally tractor Based tank. vinegar designed
negligently designed the owner evidence
on refused danger, but knew of
tank and reasoned the court guardrail, to install INSURANCE GUARANTY MONROE negli the owner could find jury (Defendant COMPANY, Appellant Id. gent. below), the Court contend respectfully I v. unnecessary draconian today employs CORPORATION, MAGWERKS protection provide methodologies below). (Plaintiff Appellee employ entities and other landowners to eliminate contractors 49S02-0402-CV-81. No. Except conditions. dangerous ameliorate Indiana. Supreme Court activi- dangerous intrinsically genuine 29, 2005. June signifi- already receive ties, interests such precaw- the "due under protection cant § 348 Restatement exception
tions"