JOHNS v. NEW YORK BLOWER CO.

GARRARD, Judge.

This appeal arises from the trial court's ruling on New York Blower Co.'s (Owner) motion for summary judgment which deemed certain facts established and restricted trial to one remaining issue, and from the court's subsequent grant of owner's motion for judgment on the evidence.

Appellant Roger G. Johns (Johns) was employed as an iron worker by the Larson-Danielson Construction Co. (Contractor) and in June of 1977 was working on the erection of a building for the owner in LaPorte, Indiana. On June 21, 1977 Johns sustained personal injuries when he fell from the steel beam he was working on to the ground approximately thirty feet below.

Johns subsequently brought suit in two counts. Count I alleged that Johns' injuries resulted from the owner's carelessness and negligence in maintaining unsafe and unhealthful working conditions. In Count II Johns alleged that his injuries resulted from the owner's breach of its duty to supervise the progress of construction.

The owner filed a motion for summary judgment and the trial court denied the motion but held that the following facts appeared without controversy:

The court also restricted the issues to be considered at trial to: "Whether or not the contract required work that was inherently dangerous."

Jury trial was held on September 29 and 30, 1981 and at the close of Johns' case-in-chief the owner orally moved for judgment on the evidence pursuant to Indiana Rules of Procedure, Trial Rule 50. The court granted this motion, finding that the remaining issue regarding Johns' allegation that working on steel beams without a safety net is inherently dangerous was not supported by the evidence.

The only issue argued on appeal is the grant of the Trial Rule 50 motion. Thus, any error in the court's ruling on the motion for summary judgment has been waived, and our review accepts the undisputed facts found by the court to exist.

The issue before us is whether the trial court erred in finding that there was no evidence of negligence on the part of the owner. Under the facts adduced at trial the question becomes whether there was sufficient evidence to create an issue of fact as to whether an iron worker working some thirty feet above the ground without a safety net below him is in an inherently or intrinsically dangerous occupation as that term is defined by Indiana law. If so, the question expands into an examination of the duty owed, and whether there was evidence of a breach of the duty that proximately caused Johns' injuries.

In reviewing the court's action in granting judgment on the evidence we must consider the evidence from the perspective favoring the non-moving party to determine whether there was introduced evidence of probative value on each element of the claim such that a reasonable jury might have found for the opponent of the motion. Haidri v. Egolf (1982), Ind. App., 430 N.E.2d 429.

As a prelude to deciding whether the trial court erred it is necessary to understand the relationship between the owner, the contractor, and Johns. In this regard certain pretrial admissions by Johns become important. In his response to requests for admissions, Johns admitted that: (1) he was employed by the contractor on the date of his injury, and (2) that he took instruction and direction from the contractor. These admissions support the trial court's characterization of the parties' relationship as one of owner-independent contractor rather than as one of master-servant. The characterization is important since Indiana courts follow the rule that:

Perry v. Northern Ind. Pub. Serv. Co. (1982) Ind. App., 433 N.E.2d 44, 46. See also Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, 367; Cummings v. Hoosier Marine Properties, Inc. (1977), 173 Ind.App. 372, 363 N.E.2d 1266, 1277; Hale v. Peabody Coal Co. (1976), 168 Ind.App. 336, 343 N.E.2d 316, 320-21; Jones v. Indianapolis Power & Light Co. (1973), 158 Ind.App. 676, 304 N.E.2d 337, 343; Scott Const. Co. v. Cobb (1928), 86 Ind.App. 699, 159 N.E. 763, 765.

Johns does not dispute the existence of the general rule; rather he argues that the owner should be liable for his injuries according to the "intrinsically dangerous work" exception to that rule. This exception was first noted in Scott, supra, 159 N.E. at 765 where the court said the general rule "... does not apply in the following cases: (1) Where the contract requires the performance of work intrinsically dangerous; ... ." See also Perry, 433 N.E.2d at 47; Cummings, 363 N.E.2d at 1274; Jones, 304 N.E.2d at 343-44. This exception, like others to the general rule,1 exemplifies a situation where liability may not be delegated to an independent contractor. Perry, 433 N.E.2d at 47.

The "intrinsically dangerous work exception" has been discussed in several Indiana cases. In Jones, supra, the court said:

304 N.E.2d at 344. In Cummings, supra, the court said:

363 N.E.2d at 1275.

Appellants who have argued for expansion of the "intrinsically dangerous work" exception have not fared well in Indiana courts. In upholding the trial court's grant of a defendant's motion for summary judgment, the court in Perry held that welding metal clips onto a fan housing approximately 20 feet above ground without using a scaffold or other safety apparatus was not inherently dangerous work. 433 N.E.2d at 47. Sustaining the trial court's grant of the defendant's motion for judgment on the evidence in Cummings, the court held that excavation of sewer trenches eighteen feet deep and five feet wide was not inherently dangerous work. 363 N.E.2d at 1275. In Hale the court upheld summary judgment for the defendant and ruled that attaching metal panels to a conveyor belt housing twenty five feet above the ground was not inherently dangerous work. 343 N.E.2d at 322. Jones, affirming the trial court's grant of defendant's motion for judgment on the evidence, held that use of a hoist to lift men approximately 100 feet above ground was not inherently dangerous work. 304 N.E.2d at 342.

Johns claims that working on a steel beam thirty feet above ground without safety neeting should be deemed inherently dangerous work within the meaning of that exception to the general rule of non-liability. He cites Kelley v. Howard S. Wright Const. Co. (1978), 90 Wn.2d 323, 582 P.2d 500 decided by the Supreme Court of Washington. This case also involved a fall from a steel beam giving rise to a suit against the general contractor. In its decision the court found four alternative grounds for liability, including a common law claim for inherently dangerous work.2 It deemed work inherently dangerous whenever the work by its very nature creates some peculiar risk of injury which the defendant has reason to know of.

We decline to adopt this view. We base our conclusion on two reasons.

First, our courts have held that work is not "inherently dangerous" if the risk of injury can be eliminated or significantly reduced by taking safety precautions. Secondly, we conclude that the inherently dangerous work exception is not applicable to employees of an independent contractor.

In Hale, supra, the court said:

343 N.E.2d at 322. See also Perry, supra, 433 N.E.2d at 47.

In the present case the risk of injury could have been eliminated through the use of safety, or tag, lines.3 On cross-examination Johns, himself, testified that had he been wearing his tag line on the day of his injury he never would have fallen to the ground. Ben Smith, Jr., one of Johns' co-workers, gave similar testimony. It also appears that OSHA regulations, specifically 29 CFR 1926, 105(a), recognize safety belts as an alternative method of reducing the risk of injury involved in working on steel beams at heights in excess of 25 feet.4

From the testimony of Johns and Smith and the OSHA regulation, the trial court could conclude that the risk of injury involved in working on a steel beam without safety netting can be eliminated or significantly reduced through the use of safety lines, and thus that Johns had failed to introduce sufficient evidence to establish that his work was "inherently dangerous" within the meaning of the Indiana decisions.

There is, however, an alternative ground for upholding the trial court's grant of the owner's TR 50 motion. We believe that the liability of a contractee/owner under the inherently dangerous work exception does not extend to employees of the independent contractor performing the work.

We do not reach this conclusion without recognizing that there exists some difference of opinion on the applicability of this exception to such employees.

In King v. Shelby Rural Elec. Coop. Corp. (Ky. 1973), 502 S.W.2d 659, cert. denied 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 235, the Kentucky Court of Appeals noted that California, Michigan and Tennessee have held that an employee of an independent contractor is within the class of persons protected,5 502 S.W.2d at 661, and that Arizona, Florida, New Mexico, Pennsylvania, Texas, Washington, and Wisconsin have adopted the contrary view,6 502 S.W.2d at 662.

Of the cases that have upheld liability, Van Arsdale v. Hollinger (1968), 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508 is instructive. In that case the California Supreme Court said:

66 Cal. Rptr. at 25, 437 P.2d at 513.

Despite these considerations there is persuasive reasoning that supports non-liability for the contractee/owner. These reasons were set out in King. The court first noted:

502 S.W.2d at 662.

In summary, the King court observed that the question of the amount of actual control of a project retained by an owner most accurately relates to the issue of whether or not the relationship established is one of independent contractor. If, as before us, it is, then there appear to be two valid reasons for refusing to extend the "inherently dangerous work" liability of the owner to employees of the independent contractor.

First, the principal reason for the development of the liability doctrine where independent contractors were involved was to prevent the employer-owner from escaping liability on inherently dangerous work or shifting that liability to his potentially less solvent contractor. Under modern law the employees of the contractor in the vast majority of instances are covered by Workmen's Compensation laws, and the owner does not escape liability since, in effect, he pays the premium for the Workmen's Compensation coverage as part of his contract price.

Secondly, had the owner's own employee been injured performing the work, the owner's liability would be limited by the Workmen's Compensation laws. There does not appear to be any valid reason to subject the owner to greater liability for employing an independent contractor to perform the work than he would have had if he had employed his own servants.

We are persuaded by the court's reasoning in King, and hold that an alternative ground sustaining the trial court's judgment is that the "inherently dangerous work" exception to the general rule of non-liability had no application to Johns because he was an employee of the independent contractor employed to perform the work in question. Cf. Hale v. Peabody Coal Co. (1976), 168 Ind.App. 336, 343 N.E.2d 316, n. 1.

For these reasons the judgment is affirmed.

HOFFMAN, P.J., concurs.

STATON, J., concurs in result and files separate opinion.

STATON, Judge, concurring in result.

I concur in result since coverage by workmen's compensation is irrelevant to the issue of liability. If there is a nondelegable duty, a third party is liable for the injuries and damages resulting regardless of workmen's compensation coverage. Denneau v. Indiana & Michigan Electric Company (1971), 150 Ind.App. 615, 277 N.E.2d 8. Workmen's compensation coverage in many cases may be grossly inadequate where a non-delegable duty is involved.