The plaintiff was an industrial and commercial electrician diagnosed with malignant pleural mesothelioma. He and his wife filed a complaint alleging negligence against various defendants. The plaintiffs argued defendants were vicariously liable for the acts of their independent contractor employees (non-delegable duty doctrine), those of their own employees (respondeat superior), and as premises owners. Defendants Bremen Casting and Mastic Home Exteriors moved for summary judgment, which was partially granted on the negligence of independent contractor and premises liability claims. All parties moved for interlocutory appeal. The appellate court concluded that the trial court (1) erred in granting summary judgment on the negligence of independent contractor claim, (2) did not err in denying summary judgment on the respondeat superior claim, and (3) erred in granting summary judgment on the premises liability claim.
From 1961-1980, the plaintiff worked for Koontz-Wagner Electric, which was hired by defendants to perform electrical work at their facilities. The plaintiff worked alongside defendants’ employees and those of other independent contractors. He worked near asbestos insulation and other products containing asbestos. The plaintiffs claimed the employees and independent contractors of Bremen and Mastic negligently exposed the plaintiff to asbestos, and failed to maintain their premises in a reasonably safe condition. The defendants argued that under respondeat superior or the non-delegable duty doctrine, they were not liable because the plaintiff was an employee of an independent contractor injured by the very condition he was hired to address, and could not be liable as premises owners because they did not have superior knowledge of the risks of asbestos.
The parties disputed whether defendants owed the plaintiff, the employee of an independent contractor, a duty of care to protect him from the negligence of their employees and those of other independent contractors. In Indiana, a principal is not liable for the negligence of an independent contractor; however the non-delegable duty doctrine provides five exceptions to this rule for responsibilities that are so important to the community they are considered non-delegable. In this case, the intrinsically dangerous exception holds principals, such as defendants, liable for the negligence of their independent contractor if the contracts require performance of intrinsically dangerous work. The plaintiff argues the work he was hired to perform was intrinsically dangerous; defendants relied upon case law holding that working with asbestos was not intrinsically dangerous. The court agreed with this precedent and found that the plaintiff could not invoke this exception.
Another exception invoked by the plaintiff was the due precaution exception, in which a principal may be held liable where the work will probably cause injury to others unless due precaution is taken. Several elements were required to apply this exception. Again, the defendants analogized this case to prior case law. The court found that a genuine issue of material fact existed as to whether the plaintiff was injured by the very condition he was employed to address, and whether asbestos work on these premises created a peculiar risk of harm.
Further, since there was a genuine issue of material fact regarding whether the plaintiff was injured by the condition he was employed to address, summary judgment was correctly denied on the respondeat superior claim, and was erroneously granted on the premises liability claim.