Marjorie Cummings, as Administratrix of the Estate of Lloyd Cummings, and Janet Sue Cook, as Administratrix of the Estate of James Arnold Cook, brought an action for the wrongful death of their respective husbands against Hoosier Marine Properties, Inc. (Hoosier Marine) and Woodruff and Sons, Inc. (Woodruff). After an entry of judgment on the evidence, Cummings and Cook perfected this appeal in an attempt to have the question of Hoosier Marine's alleged negligence determined by a jury notwithstanding its defense that the decedents' employer was hired as an independent contractor.
The issues raised on appeal concern whether there was sufficient evidence for the jury to determine the negligence of Hoosier Marine on theories of its duty to:
The record reveals the following facts most favorable to appellants:
Hoosier Marine began the development of a subdivision on its land in Porter County, Indiana, in November of 1966. The project involved the construction of home sites and country club facilities which together would be known as the "Lakes of the Four Seasons." In the furtherance of its development Hoosier Marine retained the engineering services of Henry V. Steeg and Associates, Inc. (Steeg) to prepare plans and specifications and act as supervisors of the construction of a water and sewer system. Steeg prepared the plans and specifications and thereafter Hoosier Marine, through its vice-president Werner Robert Heimann accepted bids for construction.
Pursuant to awarding the bids in 1968, Hoosier Marine entered into a contract for the completion of part of the water and sewer system with E.R. Knapp & Sons, Inc. (Knapp). Knapp's contract with Hoosier Marine incorporated by reference the plans and specifications prepared by Steeg.
Knapp thereafter entered into a subcontract with Woodruff for the digging of
The contract between the parties contained provisions requiring that proper regard be given to the quality of materials and workmanship, the timeliness of completion and the implementation of safety precautions. In general terms the specifications provided that:
In the spring of 1968 Woodruff began the sewer construction. Trenching and laying progressed through the summer until approximately five or six miles of sewer had been laid by August 23, 1968. During this time Woodruff used no sheeting or shoring to support the walls of the excavations nor was he called to task by either Hoosier Marine or Steeg for having failed to do so. On November 23, 1968, within a day of having completed the project, employees of Woodruff were working in a sewer trench approximately eighteen feet deep and five feet wide with sheer sides. Roland Phillips, one of the surviving employees of Woodruff, testified that he requested the backhoe operator to move some sand into the ditch "to bed the pipe." Apparently while the vehicle proceeded to procure the material Phillips saw the side of the trench move. He jumped as high as he could with his "arms up in the air" and "hollered at my buddy to run." However, the cave-in buried Phillips and the fellow employee over their heads.
Decedents Cummings and Cook were employed by Knapp in another area of the development constructing water mains. Upon hearing calls for help they brought shovels and with others began digging the victims from the trench. While working at this task a remaining portion of the bank caved in covering the rescuers as well as the original victims. Some of the victims were recovered safely but Cummings and Cook, the rescuing employees from Knapp, were fatally crushed.
Hoosier Marine's vice-president Werner Heimann was not present when the cave-in occurred. He did not witness any of the circumstances surrounding the work site prior to the deaths and he was unaware of any relevant attributes regarding the safe condition of the trenches.
Thereafter appellants individually filed complaints against Hoosier Marine and Woodruff for the wrongful death of their husbands. The two causes of action were consolidated for trial and proceeded on allegations that Hoosier Marine and Woodruff were negligent in their construction of the trench which caved in on the decedents. The case was tried before a jury and at the close of plaintiffs' evidence and prior to the submission of evidence on behalf of the defendants, Hoosier Marine moved for a judgment on the evidence pursuant to Ind. Rules of Procedure, Trial Rule 50. The
The issue raised by appellants concerns whether the trial court erred in rendering its judgment on the evidence when it is submitted, as here, that there was sufficient evidence presented to create an issue of fact as to whether Hoosier Marine owed a duty to the decedents, whether it was negligent in its duty and whether decedents' deaths were proximately caused by such negligence.
Trial Rule 50, supra, provides, in pertinent part:
The amount of evidence required of the plaintiff to avoid a judgment on the evidence has been determined by our Supreme Court in Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315, under the prior rule. At 623 of 248 Ind., at 318 of 230 N.E.2d, the court held:
This standard was carried forward under the present Trial Rule 50, supra, in Mamula v. Ford Motor Co. (1971), at 182 of 150 Ind.App. 179, at 851-52 of 275 N.E.2d 849 (transfer denied), where it is stated:
Since the grant of a motion for a directed verdict deprives the plaintiffs of a determination of the facts by a jury it should not be lightly granted for the sake of mere judicial economy. However it should be noted that unlike a motion for summary judgment, when the court must search to find whether there is any material fact in issue from the pleadings and affidavits, a motion for directed verdict only arises after the court has had the opportunity to hear and evaluate all the evidence in the plaintiff's case. Accordingly, the question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party. See, 9 Wright & Miller, Federal Practice and Procedure: Civil § 2524, at 543 (1971).
In this context appellants argue that Hoosier Marine is directly liable for the deaths of the victims of the trench cave-in and that it cannot avail itself of an owner immunity based on the purported independent contractor status of Knapp. Moreover even were Knapp considered as an independent contractor vis-a-vis Hoosier Marine, it is argued that its actions were such as to come within the exception to the general rule absolving owners from the tortious acts of their independent contractors.
Appellants contend that there was sufficient evidence presented to show that Hoosier
Through this theory appellants urge that Hoosier Marine's control created a duty irrespective of any characterization involving respondeat superior and that it cannot avail itself of the insular aspects of an owner employing an independent contractor. Furthermore, appellants rely on Gibbs et al. v. Miller et ux. (1972), 152 Ind.App. 326, 283 N.E.2d 592 (transfer denied), for the proposition that the mere right to control is sufficient and that the actual exercise of control over the work is not required to be found for purposes of imposing liability.
Appellee Hoosier Marine responds that its relationship with both Knapp and Steeg was that of an owner and independent contractor and that it had no legal relationship with Woodruff. Moreover were such a control or supervision to be found as urged by Cummings and Cook, an employer-employee respondeat superior condition would obtain precluding any recovery outside that available under workmen's compensation.
Appellants' attempt to require liability from their characterization of Hoosier Marine's control must fail. The allegation that Hoosier Marine maintained supervision over a construction project through Steeg's specifications requiring the shoring of trenches cannot be supported under the law even with a favorable view of the evidence presented. No showing has been made that Hoosier Marine had the requisite supervision of an employer or that it had a knowledge or should have had a knowledge that a dangerous condition existed.
If control is said to be operative when the right of some supervision is retained, it must be more than a general right which is usually reserved to all those who employ the labors of another. See, 2 Restatement of Torts 2d, § 414, at 387, Comments (1965). The control must be such as would enable the landowner to oversee the method of work employed. It must be a control which would under the common-law have given rise to the doctrine of respondeat superior.
In this regard appellants' attempt to draw support from Gibbs et al. v. Miller et ux., supra, is misplaced. Gibbs is premised on the agency principle that a master is only liable for the negligence of his servant when he is acting within the scope of his employment. Such liability is vicariously imposed on the theory that through an ability to control, the employer will be able to exercise some precautionary impetus to his employee's work habits and thereby induce accident avoidance. Accordingly the Gibbs court enumerated certain indicia of control on which a master-servant relationship could be based. These included the right to discharge, the mode of payment, the supplying of tools and supplies, the belief by the parties in the existence of the master-servant relationship, control over the means used and the result reached, the length of employment and the establishment of work boundaries. Gibbs et al. v. Miller et ux., supra, citing Lazarus v. Scherer (1931), 92 Ind.App. 90, 174 N.E. 293.
Thus if an owner gives directions for the work, furnishes equipment for it, or retains control over any part of it, he is required to exercise reasonable care for the protection of others. But the right to control one's subcontractor must have sufficient practical effect that an imposition of vicarious liability will encourage a form of supervision which will promote accident prevention. Absent the prophylactic purposes supporting liability under respondeat superior, the attachment of liability under the rubric of control becomes solely remedial and compensatory; a result in this case which would be confined to workmen's compensation.
Under such circumstances where there is a total absence of supervision or control, the law does not impose a duty which relies on foreseeability as its essential feature. Accordingly Hoosier Marine is not liable under appellants' theory of control. Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 106 N.E. 365; Marion Shoe Co. v. Eppley (1914), 181 Ind. 219, 104 N.E. 65; Hale v. Peabody Coal Company (1976), Ind. App., 343 N.E.2d 316; Jones, Admx. v. IPALCO et al. (1973), 158 Ind.App. 676, 304 N.E.2d 337 (transfer denied); Stewart v. Huff (1938), 105 Ind.App. 447, 14 N.E.2d 322.
Appellants relying on Parr v. McDade (1974), Ind.App., 314 N.E.2d 768, would have this court impose liability on Hoosier Marine in any event because of its failure to maintain its property in a condition sufficiently safe so as to avoid injury to a business invitee working in an unshored trench. Parr involved injuries to an upstairs tenant arising from a fire caused by an open gas heater used by the resident manager of the landlord. The court held that since the apartment building owners knowingly allowed their employee, occupying an apartment as an employee and not as a tenant, to use a dangerous open flame heater and failed to warn the plaintiff-tenant occupying an adjacent apartment, or take steps to correct the danger, the owners as landlords were negligent with respect to their duty to the tenant in their use of the employee's apartment. The decision in Parr rested on two theories. First, if an owner occupies a portion of the premises himself through an agent he is not permitted to use such in a manner which is likely to injure his tenant. See, Indianapolis Abattoir Co. v. Temperly (1902), 159 Ind. 651, 64 N.E. 906. Second, the owner was negligent in his failure to "remedy" a dangerous situation of which he had notice and over which he had control by reason of the employer-employee relationship. See, 2 Restatement of Torts 2d, § 317, at 125 (1965).
From Parr appellants urge that the landlord's liability was not based on respondeat superior but rather predicated on a duty to control his servant while acting beyond the scope of employment because of the owner's superior knowledge of the danger and his control over the premises.
Given this argument in the factual context of the case at bar, consideration should be given to Hoosier Cardinal Corp. v. Brizius (1964), 136 Ind.App. 363, 199 N.E.2d 481 (transfer denied). In Hoosier Cardinal the court at 376-77 of 136 Ind. App., at 487-88 of 199 N.E.2d, stated:
In the case at bar no such superior knowledge has been shown to have existed in Hoosier Marine. Werner Heimann never inspected the sewer trenches nor any other work activity. He was unaware that a potential danger existed as a result of how Woodruff was digging the excavations.
From the foregoing, we conclude that Hoosier Marine's relationship with Knapp was not one of respondeat superior but was that of an owner toward an independent contractor and that Woodruff as a subcontractor of Knapp's had, at most, the same status. Knapp exercised an independent employment under a contract to do a certain work reserving to himself control over the manner in which the work was to be performed. See, Marion Shoe Co. v. Eppley, supra (1914), 181 Ind. 219, 104 N.E. 65; City of Gary v. Bontrager Const. Co. (1943), 113 Ind.App. 151, 47 N.E.2d 182. The fact that work was done to the satisfaction of Steeg representing Hoosier Marine did not render Knapp or Woodruff servants. Furthermore, the status between the parties was to be determined by the contract as a whole and the continuous supervision by Steeg for quality did not alter the contractor's separate nature. Prest-O-Lite Co. v. Skeel, supra (1914), 182 Ind. 593, 106 N.E. 365. Thus, Hoosier Marine's theory of nonliability is founded on the principle that one should not be compelled to answer for the fault or neglect of another over whom he has no control and that in this case it, as owner, had a right to rely on a presumption that the contractor would discharge the legal duties owing to his employees and third persons. Bauer v. Plumbers' Sup. Corp. of Evansville (1965), 137 Ind.App. 106, 205 N.E.2d 567; Van Drake v. Thomas (1942), 110 Ind.App. 586, 38 N.E.2d 878; Scott Constr. Co. v. Cobb (1928), 86 Ind.App. 699, 159 N.E. 763.
However, the rule that an employer is not liable for the negligence of an independent contractor whom he employs is often recited primarily as a preamble to the catalog of its exceptions. Jones, Admx. v. IPALCO et al., supra; Hale v. Peabody Coal Company, supra; Lamb v. South Unit Jehovah's Witnesses (1950), 232 Minn. 259, 45 N.W.2d 403; Annot., 33 A.L.R.2d 47 (1954).
In this context Cummings and Cook urge as their next contention that even if Knapp and Woodruff were independent contractors sufficient evidence was presented to allow a jury to find Hoosier Marine liable under exceptions to the general rule. These exceptions were originally enumerated in Scott Constr. Co. v. Cobb, supra, at 703 of 86 Ind. App., at 765 of 159 N.E.:
In his work on torts, Prosser states that these exceptions which rest on a theory of vicarious liability for non-delegable duties go further and hold the employer liable for the negligence of the contractor although he has himself done everything that could reasonably be required of him. The criterion by which the non-delegable character of
Relying on the first exception to the general rule or non-delegable duty Cummings and Cook argue that the trenching was an inherently or intrinsically dangerous activity by drawing support from 2 Restatement of Torts 2d, § 427, at 415 (1965). Such section states:
However inherently dangerous means that the danger exists in the doing of the activity regardless of the method used. It is a risk intrinsic to the accomplishment of the task and not simply a danger arising from a casual or collateral negligence of others. Neal, Admr. v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280. Thus liability under the inherently dangerous exception is imposed on a rationale sounding in strict liability as would exist for example in blasting.
In this context the mere excavation of sewer trenches cannot be considered intrinsically dangerous. Properly done the work is relatively safe.
In Stewart v. Huff, supra, at 455 of 105 Ind. App., at 322 of 14 N.E.2d, this court quoted from Hyman v. Barrett (1918), 224 N.Y. 436, at 437, 121 N.E. 271, at 272, as follows:
The risk herein developed only because of the departure from the contemplated method used by the subcontractor Woodruff. Accordingly the negligent failure to shore and brace was collateral to the risk created by digging the trenches, thus precluding liability to Hoosier Marine. See, Hale v. Peabody Coal Company, supra.
However appellants further argue in their next contention of error that the digging of the sewer trenches would probably cause injury to others unless due precaution were taken to avoid such injury. Appellants' reliance on this exception to the general rule expands the allegation that the project was intrinsically dangerous to an allegation that the work involved specific risks that were readily foreseeable. Prosser distinguishes this exception from the one involving intrinsic danger on grounds that it is "limited to work in which there is a high degree of risk in relation to the particular surroundings or some rather specific risk * * * to those in the vicinity, recognizable in advance as calling for definite precautions. The emphasis is upon the `peculiar' character of the risk, and the need for special * care." (Footnote omitted.) Prosser, Torts, § 71, at 473 (4th Ed. 1971).
Within these confines an action would fail absent a showing by the plaintiff that in view of the nature of the work and the conditions under which it was to be executed, the defendant should have foreseen that the actual catastrophe which occurred was likely to happen if those precautionary measures were omitted. Jones, Admx. v. IPALCO et al., supra; Denneau v. Ind. & Mich. Elect. Co. (1971), 150 Ind.App. 615, 277 N.E.2d 8 (transfer denied).
However, the safety precautions specified by Steeg for Knapp are not evidence of Hoosier Marine's knowledge concerning a specifically foreseeable risk arising out of trench excavations. Rather these requirements were properly anticipated as having been carried out in a manner which would reduce any risk beyond that which would logically be considered as foreseeable. The specifications by Steeg contemplate the performance of the work in a manner which would avoid all risks. Unless it further appears from the evidence that Hoosier Marine owed a duty to appellants to inspect and test the shoring and bracing and to direct the manner of excavation, no liability could attach. Mackey v. Lafayette, etc., Trust Co. (1919), 70 Ind.App. 59, 121 N.E. 682.
The owner is held liable only for those injuries resulting directly from the nature of the work which might have been within the contemplation of the parties and no recovery is allowed for an injury resulting from the wrongful act entirely of the independent contractor's doing. Naylor v. Holland, etc., Sugar Co. (1921), 75 Ind.App. 132, 130 N.E. 152. See, Bedford Stone, etc., Co. v. Hennigar (1918), 187 Ind. 716, 121 N.E. 277. 41 Am.Jur.2d, Independent Contractors, § 42, at 808 (1968).
Cummings and Cook next contend as an exception that Hoosier Marine allowed the contractor to continue work in such a manner that it violated State and local laws and therefore that it contracted for the doing of an illegal act. Appellants pursue this exception to the general rule on two theories: First, they assert that the administrative regulations assembled under "Construction Industry Safety Code", Burns Administrative Rules and Regulations, §§ 40-2139-L1, et seq., requiring the shoring and bracing of trenches over six feet were violated. Second, they contend that the bid price for the project was so low relative to those costs which should have been anticipated by Hoosier Marine that the acceptance thereof gave rise to a conclusive presumption that the contractor could not have been expected to shore and brace the trenches.
These assertions are untenable under the circumstances of the case at bar. Burns Administrative Rules and Regulations, §§ 40-2139-L6, L7 and L8, supra, impose no duty on Hoosier Marine. These regulations specifically impose a duty on those who are prime contractors. In pertinent part they provide that:
As stated in Jones, Admx. v. IPALCO et al., supra, at 689 of 158 Ind. App., at 345 of 304 N.E.2d:
In addition it should be noted that Hoosier Marine did in fact specify through its engineer that the shoring and bracing would be required for completion of the project. An owner is justified in assuming that such specifications would be followed.
It is also clear that an owner is under no duty to discern whether the bid price for the contract will enable the bidder to obtain a favorable cash flow. A presumption, if any there be, is that a contractor upon submitting a bid will be ready and able to perform the contract.
Moreover, this exception allowing liability requires the knowledge and sanctioning of the illegal act at the time of contracting by the owner. Appellants rely on Wabash, St. Louis and Pacific Railway Company v. Farver (1887), 111 Ind. 195, 12 N.E. 296 and Brennan v. George L. Walker Co. (1915), 93 Misc. 57, 156 N.Y.S. 314, for the proposition that when the owner does not require his contractor to comply with the law and the contractor's violation of that law is the proximate cause of the injuries sustained then the owner is also liable for those injured. However, both Wabash and Brennan are premised upon the owner's participation in the illegal conduct either through the contract or by knowingly permitting the doing of an illegal act. Having presented no evidence that Hoosier Marine was so involved, appellants cannot be afforded this exception to the general rule. B.A. Kipp Co. v. Waldon (1947), 117 Ind.App. 694, 75 N.E.2d 675.
Appellants' final contention is that they submitted sufficient evidence that the contract between Hoosier Marine and Knapp imposed a specific duty on Hoosier Marine for which it is liable under an exception to the general rule of nonliability for independent contractors. Cummings and Cook maintain that Steeg as an agent of Hoosier Marine was specifically invested with the duty to enforce all contract provisions including those regarding safety precautions.
This court in Jones, Admx. v. IPALCO et al., supra, held that an owner's specifications requiring safety precautions do not give rise to a duty to exercise that right. The fact that the specifications require a contractor to take safety precautions does not impose a specific duty on the part of the owner to enforce the same. Moreover, an exception to the general rule of nonliability to employees of independent contractors may not be read as involving a contractee in the manner and means of the independent contractor's performance by obliging the contractee to examine the contractor's work to make certain that all precautions have been taken to prevent probable harm to servants. Hale v. Peabody Coal Company, supra. Without a specific duty to inspect, contract specifications requiring the observance of safety precautions impose a duty only on the independent contractor and not the owner.
It should be borne in mind through this analysis of exceptions that the general rule in Indiana is that an owner is not liable for the torts of one he hires to perform his construction as an independent contractor. Prest-O-Lite Co. v. Skeel, supra (1914), 182 Ind. 593, 106 N.E. 365; Marion Shoe Co. v. Eppley, supra (1914), 181 Ind. 219, 104 N.E. 65; City of Logansport v. Dick, Administratrix et al. (1880), 70 Ind. 65, 36 Am.Rep. 166; Hale v. Peabody Coal Company, supra (1976), Ind. App., 343 N.E.2d 316; Jones, Admx. v. IPALCO et al., supra (1973), 158 Ind.App. 676, 304 N.E.2d 337 (transfer denied); Stewart v. Huff, supra (1938), 105 Ind.App. 447, 14 N.E.2d 322; Scott Constr. Co. v. Cobb, supra (1928), 86 Ind.App. 699, 159 N.E. 763. It is not within our province to attempt to change this rule absent a showing that the owner or contractor could have avoided or prevented the loss by taking foreseeable precautions. Absent one of
In the case at bar there was evidence that Hoosier Marine through Werner Heimann contracted with various construction companies to build a subdivision. During the work on one phase of this project several employees of these construction contractors were fatally injured. There is an absence of anything but tangential evidence connecting Hoosier Marine with these tragedies. Accordingly without appropriate evidence from which a jury could have found a verdict for appellants the judgment of the trial court pursuant to Ind. Rules of Procedure, Trial Rule 50, must be affirmed.
STATON, P.J., and GARRARD, J., concur.