Indiana Asbestos Litigation Update
Premises Owner Liability Attorneys in Indianapolis
Due to the fact that many manufacturers and suppliers of asbestos products have filed bankruptcy, attorneys representing plaintiffs in asbestos-related personal injury matters have begun to focus on premises owners. In that regard, two (2) new cases in Indiana have changed the landscape of liability that a premises owner faces in asbestos-related personal injury actions. In that regard the following summary is provided as a guide to Indiana premises liability law, but should not be used as a substitute for legal consultation.
As a general rule, a principal is not vicariously liable for the negligence of an independent contractor. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). However, there are five exceptions to the general rule: (1) where the contract requires the performance of intrinsically dangerous work; (2) where the principal is by law or contract charged with performing a specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will probably cause injury unless due precaution is taken to avoid harm; and (5) where the act to be performed is illegal. Id.
In PSI Energy, Inc. v. Roberts, 829 N.E.2d 943 (Ind. 2005), the Indiana Supreme Court held that premises defendants have no liability to an independent contractor’s employee for injuries sustained while addressing a condition on the premises in question of which the premises defendant had no superior knowledge. The Court explained, with respect to premises liability and the exceptions to the independent contractor rule, the duty of premises defendants is based upon their superior knowledge of hazardous conditions unique to their property. Roberts at 955, 961.
In Roberts the Supreme Court found that routine exposure to asbestos fibers during the course of the plaintiff’s work was not intrinsically dangerous. Roberts at 955.
Also, under Roberts the Supreme Court found that occupational hazards not requiring unique precautions did not form a peculiar risk as required under the due precaution exception. Roberts at 956.
In the case of Helms v. Carmel High School Vocational Building Trades Corp., 844 N.E.2d 562 (Ind.Ct.App. 2006), an employee of a subcontractor brought an action for negligence against a general contractor for work site injuries. Id. at 563. Helms alleged in his complaint against the general contractor, Carmel High School Vocational Building Trades Corp. (“Carmel”), that Carmel had a duty to provide Helms with a safe work site, based upon Carmel obtaining a building permit, and that Carmel breached that duty. Id. The building permit obtained by Carmel stated that the construction to be undertaken “will comply with, and conform to, all applicable laws of the State of Indiana.” Id. at 564. Helms argued that Carmel contractually assumed a duty to provide employees of subcontractors with a safe work site based upon the language contained in the building permit. Id. at 562-564. The court stated “[w]e agree with the trial court that ‘the building permit in question did not affirmatively evince an intent by [Carmel] to assume a duty of care to [Helms].’ Thus, we also conclude that the designated evidence does not show that Carmel contracted to provide a safe work site for Helms. Because Helms cannot show that any of the exceptions to the general rule regarding a principal’s nonliability for the negligence of an independent contractor apply here, we hold that the trial court did not err when it entered summary judgment in favor of Carmel.” [citations omitted]. The court then went on to discuss Roberts.
The court states that the Supreme Court considered and discarded Bagley v. Insight Communications, Co., 658 N.E.2d 584 (Ind. 1995), finding that the five exceptions to the general rule of nonliability of a contractor are only available to an employee of a subcontractor who alleges negligent hiring. Helms at 566.
Arguably under Roberts and Helms, a plaintiff is required to make a claim of negligent hiring against and/or superior knowledge on the part of a premises owner, if the plaintiff is seeking to have the five (5) exceptions to the general rule of nonliability apply. However it should be remembered that a plaintiff is still required to demonstrate that one of the exceptions to the general rule regarding a principal’s nonliability for the negligence of an independent contractor apply, which will prove difficult considering the Supreme Court’s findings in Roberts related to the intrinsically dangerous work and due precaution exceptions.
As a final note, a petition to transfer is pending in Helms.