                                                                 FILED
                                                            Sep 28 2016, 5:30 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Linda George                                              BREMEN CASTING, INC.
Kathleen A. Farinas                                       Keith D. Mundrick
Todd Barnes                                               Susan E. Mehringer
Sarah Broderick                                           Dennis F. Cantrell
George & Farinas, LLP                                     Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana                                     Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE                               ATTORNEYS FOR APPELLEE
INDIANA TRIAL LAWYERS ASSOCIATION                         MASTIC HOME EXTERIORS, INC.
Jeffrey A. Hammond                                        John McCauley
Cohen & Malad, LLP                                        Meaghan Klem Haller
Indianapolis, Indiana                                     Greg Neibarger
                                                          Bingham Greenebaum Doll, LLP
                                                          Indianapolis, Indiana



                                            IN THE
     COURT OF APPEALS OF INDIANA

Larry Myers and Loa Myers,                                September 28, 2016
Appellants-Plaintiffs,                                    Court of Appeals Case No.
                                                          49A04-1503-MI-113
        v.                                                Appeal from the Marion Superior
                                                          Court
Bremen Casting, Inc., and                                 The Honorable Timothy W. Oakes,
Mastic Home Exteriors, Inc.,                              Judge
Appellees-Defendants.                                     Trial Court Cause No.
                                                          49D02-1405-MI-14372



Robb, Judge.




Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016          Page 1 of 21
                                    Case Summary and Issue
[1]   Larry Myers spent the majority of his career working as an electrician in

      primarily industrial and commercial spaces, and during this time, Larry was

      exposed to asbestos. In February 2014, doctors diagnosed Larry with

      mesothelioma. Thereafter, Larry and his wife, Loa, filed a complaint alleging

      negligence against numerous product manufacturers and premises owners,

      including Bremen Casting, Inc. (“Bremen”) and Mastic Home Exteriors, Inc.

      (“Mastic”) (collectively, the “Defendants”).1 Specifically, the Myerses allege

      the Defendants are (1) vicariously liable for the acts of the employees of their

      independent contractors under the non-delegable duty doctrine, (2) vicariously

      liable for the acts of their own employees under the doctrine of respondeat

      superior, and (3) liable as premises owners. The Defendants each moved for

      summary judgment, and the trial court partially granted each motion. On the

      motion of all parties, the trial court’s orders were certified for interlocutory

      appeal and this court accepted jurisdiction and consolidated the appeals under a

      single cause number, designating the Myerses as Appellants/Cross-Appellees2

      and the Defendants as Appellees/Cross-Appellants.


[2]   On appeal, the Myerses argue the trial court erred in granting summary

      judgment in favor of the Defendants on the Myerses’ vicarious liability claim




      1
          Bremen and Mastic are premises owners.
      2
          The Indiana Trial Lawyers Association filed an amicus curiae brief aligned with the Myerses.


      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                       Page 2 of 21
      under the non-delegable duty doctrine and premises liability claim; on cross-

      appeal, the Defendants argue the trial court erred in denying their motions for

      summary judgment on the Myerses’ respondeat superior claim. Therefore, we

      consolidate and restate the issues before us as whether the trial court erred in

      granting in part and denying in part the Defendants’ motions for summary

      judgment. We conclude: (1) the trial court erred in granting the Defendants

      summary judgment on the Myerses’ vicarious liability claim pertaining to the

      negligence of independent contractors, (2) the trial court did not err in denying

      the Defendants summary judgment on the Myerses’ respondeat superior claim,

      and (3) the trial court erred in granting the Defendants summary judgment on

      the Myerses’ premises liability claim. We therefore affirm in part, reverse in

      part and remand for further proceedings on the Myerses’ claims.



                            Facts and Procedural History
[3]   Between 1961 and 1980, Koontz-Wagner Electric (“Koontz”) employed Larry

      as an electrician. During this time, the Defendants hired Koontz as an

      independent contractor to perform electrical work at the Defendants’ facilities.

      While working at the Defendants’ facilities, Larry worked alongside the

      Defendants’ employees as well as the employees of other independent

      contractors hired by the Defendants. As an electrician, Larry’s duties generally

      included installing and maintaining wire, conduit, light fixtures, transformers,

      junction boxes, and circuit breakers. In carrying out these duties, Larry

      occasionally worked near asbestos insulation and with products containing


      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 3 of 21
      asbestos. Larry was not warned of the dangers associated with asbestos

      exposure. In addition, he was neither trained nor hired to handle asbestos, and

      he did not wear any protective gear. Larry claims he was exposed to asbestos

      by inhaling asbestos dust as a result of the Defendants’ failure to maintain their

      premises in reasonably safe condition, and as a result of the acts of the

      Defendants’ employees and the acts of other independent contractors’

      employees.3 In the 1990s, Larry learned asbestos could be dangerous. In 2014,

      doctors diagnosed Larry with malignant pleural mesothelioma, citing Larry’s

      exposure to asbestos.


[4]   Following Larry’s diagnosis, the Myerses filed a complaint naming nearly forty

      defendants, including Bremen and Mastic. In the complaint, the Myerses

      alleged the Defendants negligently hired their independent contractors and were

      vicariously liable as principals and further liable as premises owners. As to the

      vicarious liability claims, the Myerses alleged the Defendants’ own employees

      and the employees of their independent contractors negligently exposed Larry

      to asbestos. The Myerses do not allege Larry’s employer, Koontz, is negligent,

      nor do they allege the Defendants negligently hired Koontz. To be clear, the

      Myerses only claim the Defendants’ employees and independent contractors

      negligently exposed Larry to asbestos. As to the premises liability claim, the




      3
        In their Joint Brief of Appellees/Cross-Appellants (“Appellees’ Brief”), the Defendants note “Bremen does
      not concede that asbestos was on their premises. However, for the purposes of summary judgment and this
      appeal, none of the factual disputes identified by [Larry] are material or determinative to the outcome, and
      should be assumed to be as [Larry] alleges.” Appellees’ Brief at 9 n.3. For the purposes of this appeal, we
      therefore assume Larry was exposed to asbestos while working at the Defendants’ facilities.

      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                     Page 4 of 21
      Myerses alleged the Defendants knew or should have known the dangers

      associated with asbestos, failed to warn Larry of the danger, and therefore failed

      to maintain the premises in a reasonably safe condition.


[5]   The Defendants then each moved for summary judgment on all three claims,

      arguing they could not be held vicariously liable under respondeat superior or

      the non-delegable duty doctrine because Larry was an employee of an

      independent contractor injured by the very condition he was employed to

      address and further arguing they could not be held liable as premises owners

      because they did not have superior knowledge of the risks associated with

      asbestos. In two separate orders, the trial court—relying primarily upon our

      supreme court’s decision in PSI Energy, Inc. v. Roberts, 829 N.E.2d 943 (Ind.

      2005), abrogated in part by Helms v. Carmel High Sch. Vocational Bldg. Trades Corp.,

      854 N.E.2d 345 (Ind. 2006)—concluded as a matter of law the Defendants

      could not be held liable for the acts of their independent contractors under the

      non-delegable duty doctrine and could not be held liable as premises owners

      and entered partial summary judgment in favor of the Defendants on those two

      claims. In denying summary judgment on the respondeat superior claim,

      however, the trial court concluded a genuine issue of material fact existed as to

      whether the acts of the Defendants’ employees exposed Larry to asbestos. This

      appeal and cross-appeal ensued.



                                 Discussion and Decision


      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 5 of 21
                                      I. Standard of Review
[6]   When we review a grant or denial of a motion for summary judgment, our

      standard of review is the same as it is for the trial court. Knighten v. E. Chi.

      Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). The moving party carries the

      burden of showing there are no genuine issues of material fact and it is entitled

      to judgment as a matter of law. Id. In Indiana, unlike federal practice, the

      moving party will not prevail by merely showing the party carrying the burden

      of proof lacks evidence on a necessary element. Hughley v. State, 15 N.E.3d

      1000, 1003 (Ind. 2014). Rather, “we impose a more onerous burden: to

      affirmatively ‘negate an opponent’s claim.’” Id. (quoting Jarboe v. Landmark

      Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). If the moving

      party carries its burden, then the non-moving party must present evidence

      establishing the existence of a genuine issue of material fact. Knighten, 45

      N.E.3d at 791. In deciding whether summary judgment is proper, we consider

      only the evidence the parties designated to the trial court. See Ind. Trial Rule

      56(C), (H). We construe all factual inferences in favor of the non-moving party

      and resolve all doubts regarding the existence of a material issue against the

      moving party. Knighten, 45 N.E.3d at 791. Indiana’s heightened summary

      judgment standard “consciously errs on the side of letting marginal cases

      proceed to trial on the merits, rather than risk short-circuiting meritorious

      claims.” Hughley, 15 N.E.3d at 1004. “In negligence cases, summary judgment

      is rarely appropriate. This is because negligence cases are particularly fact

      sensitive and are governed by a standard of the objective reasonable person—


      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 6 of 21
      one best applied by a jury after hearing all of the evidence.” Rhodes v. Wright,

      805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations omitted).


                                      II. Vicarious Liability
[7]   Generally, a plaintiff claiming negligence must show a duty owed to the

      plaintiff by the defendant, a breach of that duty, and a compensable injury

      proximately caused by the breach. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind.

      2010). “Absent a duty there can be no negligence or liability based upon the

      breach.” Id. Vicarious liability creates “indirect legal responsibility” whereby

      “a court can hold a party legally responsible for the negligence of another, not

      because the party did anything wrong but rather because of the party’s

      relationship to the wrongdoer.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147

      (Ind. 1999) (citation omitted). Courts employ various legal doctrines to hold

      people vicariously liable, including the non-delegable duty doctrine and the

      doctrine of respondeat superior. Id.


[8]   The Myerses brought vicarious liability claims against the Defendants alleging

      the Defendants were liable for the negligence of the employees of their

      independent contractors under the non-delegable duty doctrine and for the

      negligence of their employees under respondeat superior. In partially granting

      the Defendants’ motion for summary judgment on the vicarious liability claims,

      the trial court concluded the Defendants did not owe a duty to Larry with

      respect to the negligence of the Defendants’ independent contractors’

      employees, but did owe a duty to Larry with respect to the negligence of the


      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 7 of 21
      Defendants’ own employees. On appeal, much of the parties’ briefs are

      dedicated to arguing the proper interpretation and application of our supreme

      court’s decision in Roberts, which we address below. The parties agree Larry

      was an employee of Koontz, Koontz was hired to perform electrical work at the

      Defendants’ facilities, and Larry worked alongside other independent

      contractors’ employees and the Defendants’ employees while on the

      Defendants’ premises. See Appellees’ Br. at 9. The parties dispute, however,

      whether the Defendants owed Larry, the employee of an independent

      contractor, a duty of care to protect him from the negligent acts of their

      employees and their independent contractors’ employees. Whether a duty

      exists is question of law, but determining whether a duty exists may be

      dependent upon underlying facts that must be resolved by the trier of fact. BSA

      Constr. LLC. v. Johnson, 54 N.E.3d 1026, 1029 (Ind. Ct. App. 2016), trans. denied.


         A. Holding a Principal Liable for Independent Contractor
                   Negligence – Non-Delegable Duty
[9]   “In Indiana, the long-standing general rule has been that a principal is not liable

      for the negligence of an independent contractor.” Bagley v. Insight Commc’ns Co.,

      L.P., 658 N.E.2d 584, 586 (Ind. 1995). However, Indiana recognizes the non-

      delegable duty doctrine, which provides five exceptions to the general rule of

      non-liability:


              (1) where the contract requires the performance of intrinsically
              dangerous work; (2) where the principal is by law or contract
              charged with performing the specific duty; (3) where the act will
              create a nuisance; (4) where the act to be performed will probably

      Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 8 of 21
        cause injury to others unless due precaution is taken; and (5)
        where the act to be performed is illegal.


Id. Our supreme court explained the rationale for these exceptions:


        The duties associated with Indiana’s five exceptions are
        considered non-delegable, and an employer will be liable for the
        negligence of the contractor, because the responsibilities are
        deemed “so important to the community” that the employer
        should not be permitted to transfer these duties to another.
                                    ***
        The exceptions encourage the employer of the contractor to
        participate in the control of work covered by the exceptions in
        order to minimize the risk of resulting injuries.


Id. at 587-88 (citation omitted); see also Carie v. PSI Energy, Inc., 715 N.E.2d 853,

855 (Ind. 1999) (“The exceptions reflect the notion that, in certain

circumstances, the employer is in the best position to identify, minimize, and

administer the risks involved in the contractor’s activities.”) (citation and

internal quotation marks omitted). In their complaint, the Myerses allege the

Defendants are vicariously liable under the intrinsically dangerous and due

precaution exceptions, and unless one of the exceptions applies, the general rule

of non-liability dictates the Defendants do not owe Larry a duty of care.

However, even if a plaintiff can establish the applicability of either the first or

fourth exception to the general rule of non-liability, a principal owes no duty of

care to an employee of an independent contractor if (1) there is no allegation




Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 9 of 21
       the principal negligently selected its independent contractors,4 and (2) the facts

       establish the employee was injured by the very condition he was employed to

       address. See Roberts, 829 N.E.2d at 953, 957; see also Helms, 854 N.E.2d at 346

       (limiting the Roberts holding to only the first and fourth exceptions to the

       general rule of non-liability).


                                    1. Intrinsically Dangerous Exception

[10]   The intrinsically dangerous exception holds principals, such as the Defendants,

       liable for the negligence of their independent contractor if the contracts require

       performance of intrinsically dangerous work. See Roberts, 829 N.E.2d at 953-54.

       The exception is “normally associated with strict liability and does not require

       negligence on the part of the contractor” and only “imposes liability for

       activities that are dangerous by nature, not merely because they are carried out

       in a risky manner.” Id. at 954. “If proper precautions can minimize the risk of

       injury, then the activity is not intrinsically dangerous.” Id. at 955. Even if the

       activity is intrinsically dangerous, however, a principal cannot be held liable for

       an injury sustained as a result of an intrinsically dangerous activity if the

       individual was injured by the very condition he was employed to address. See

       generally id.




       4
         Here, we note the Myerses allege the Defendants negligently hired their independent contractors. The
       Defendants do not attempt to negate this claim and we therefore do not address it. As discussed below, the
       Defendants’ sole contention in defense of the Myerses’ claims is that they cannot be held liable for Larry’s
       injuries because he was injured by the very condition he was employed to address.

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                    Page 10 of 21
[11]   In Roberts, Roberts installed and serviced asbestos insulation for at least twenty-

       four years while working as an employee of Armstrong Contracting and Supply

       Company (“ACandS”); PSI hired ACandS, an independent contractor, to

       perform work at PSI’s facilities, and as a result, Roberts often worked with and

       around asbestos at PSI’s facilities. 829 N.E.2d at 950. Roberts knew he was

       working with asbestos insulation and could recognize asbestos on sight. In

       addition to performing his own work as an employee of ACandS, Roberts was

       also exposed to asbestos as a result of the acts of PSI’s employees and the

       employees of PSI’s independent contractors. Roberts did not take any

       precautions to protect himself from asbestos exposure and only discovered the

       risks associated with asbestos several years after completing his work at PSI.

       After being diagnosed with mesothelioma, Roberts sued PSI under the theories

       of vicarious and premises liability and received a general jury verdict.


[12]   Our supreme court was tasked with determining whether the evidence was

       sufficient to support the jury’s verdict. The court first addressed whether

       recovery under the intrinsically dangerous exception was supported by the

       evidence. Roberts argued asbestos is intrinsically dangerous, whereas PSI

       disagreed, arguing the evidence at trial established proper precautions could

       have minimized Roberts’s exposure. The court concluded the evidence did not

       support recovery under the intrinsically dangerous exception because testimony

       at trial indicated proper precautions could have minimized Roberts’s risk of

       exposure. See id. at 954-55. However, for a second and independent reason,

       the court concluded Roberts could not prevail because “working with asbestos


       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 11 of 21
       is not intrinsically dangerous such that anyone hiring a contractor to address it

       incurs strict liability for injuries sustained from exposure to it.” Id. at 955.


[13]   The Myerses claim the Defendants hired independent contractors to perform

       intrinsically dangerous work, namely working with or around asbestos, that in

       turn exposed Larry to asbestos. In its attempt to negate the Myerses’ claim, the

       Defendants rely on Roberts and argue (1) the evidence establishes proper

       precautions could have minimized Larry’s exposure, and (2) working with

       asbestos is not intrinsically dangerous as a matter of law.


[14]   As to the first argument, the Defendants do not designate evidence, and we find

       none in the record, indicating proper precautions could have minimized Larry’s

       exposure to asbestos. However, we agree with the Defendants’ second

       argument that Roberts also makes clear working with asbestos is not intrinsically

       dangerous as a matter of law. See id. Therefore, the Myerses cannot invoke the

       intrinsically dangerous exception.


                                        2. Due Precaution Exception

[15]   Under the due precaution exception to the general rule of non-liability, a

       principal may be held liable for the negligence of an independent contractor

       where the work to be performed will probably cause injury to others unless due

       precaution is taken. McDaniel v. Bus. Inv. Grp., Ltd., 709 N.E.2d 17, 22 (Ind. Ct.

       App. 1999), trans. denied. “The essence of this exception is the foreseeability of

       the peculiar risk involved in the work and of the need for special precautions.”

       Id. (citation omitted). A principal’s liability will only be established when, at

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 12 of 21
       the time of contracting, the principal should have foreseen an injury to others

       was likely to happen. Id.


[16]   Application of this exception requires review of several elements, including a

       peculiar risk; the principal’s foreseeability of that risk; and an injury consistent

       with the peculiar risk.5 Id. A peculiar risk is “the risk of a particularized harm

       specific to the work being performed or the conditions under which it is

       performed.” Id. “[T]he exception applies only when the risk involved is

       something more than the routine and predictable hazards generally associated

       with a given occupation: it must be a risk unique to the circumstances of a given

       job.” Id.


[17]   In Roberts, Roberts contended the evidence supported a finding that PSI was

       liable for his injuries under the due precaution exception. Specifically, he

       claimed PSI hired his employer, ACandS, to perform asbestos work and such

       work created a peculiar risk that those performing the work, such as Roberts,

       would contract an asbestos-related illness. PSI contended exposure to asbestos

       materials at PSI’s facilities did not present a peculiar risk to an asbestos worker

       who worked with and around asbestos materials on a daily basis in the normal

       course of his trade. The court concluded the facts did not establish PSI created

       “unusual risks as applied to an insulator,” reasoning Roberts’s job was to install

       and maintain asbestos insulation and therefore the risk of him being exposed to



       5
         The Defendants do not address the foreseeability and injury elements in their motions for summary
       judgment or on appeal.

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                  Page 13 of 21
       asbestos, regardless of the location of his work, was the always the same.

       Roberts, 829 N.E.2d at 956 (emphasis added). Stated differently, because

       Roberts was injured by the very condition he was employed to address, asbestos

       work did not create a peculiar risk of harm as applied to him. The court

       elaborated, “At most, PSI created a quantitatively higher risk, but not a risk

       unique to PSI, and not a risk requiring qualitatively different precautions from

       those generally associated with asbestos.” Id.


[18]   Here, the Myerses claim asbestos work creates a peculiar risk to others, namely

       electricians and other independent contractors who are exposed to asbestos dust

       and contract asbestos-related illnesses when working in the vicinity of asbestos.

       The Defendants counter this case is analogous to Roberts, arguing Larry was

       injured by the very condition he was employed to address and therefore the

       asbestos work did not create a peculiar risk requiring different precautions than

       generally associated with electrical work. We must therefore determine

       whether Larry was injured by the very condition he was employed to address.

       We conclude the evidence does not establish he was.


[19]   Roberts was injured by the very condition he was employed to address because

       he was exposed to asbestos while performing asbestos work. Regardless of

       where Roberts worked, the risk of being exposed to asbestos and contracting

       asbestos-related diseases was the same. Therefore, PSI could not be held liable

       for failing to take different precautions than those generally taken by asbestos

       insulators. The evidence here indicates the Defendants hired Koontz to

       perform electrical work, not asbestos work. While performing electrical work,

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 14 of 21
       Larry installed and maintained electrical wire, conduit, light fixtures,

       transformers, junction boxes, and circuit breakers. Unlike the defendants in

       Roberts, the Defendants here have not designated sufficient evidence to indicate

       Larry’s risk of being exposed to asbestos was common among electricians or

       across workplaces. In addition, there is a factual dispute as to whether Larry

       was commonly exposed to asbestos during the normal course of his trade. We

       therefore cannot accept the Defendants’ argument that the asbestos work being

       conducted on their premises did not create a peculiar risk of harm to those not

       hired to perform asbestos work, such as Larry. We conclude a genuine issue of

       material fact exists as to whether Larry was injured by the very condition he

       was employed to address and whether asbestos work on the Defendants’

       premises created a peculiar risk of harm as applied to Larry, an electrician. The

       due precaution exception to the general rule of non-liability is available to the

       Myerses.


[20]   In sum, the Defendants attempt to negate the Myerses’ claim by arguing they

       owe no duty of care because asbestos work is not intrinsically dangerous as a

       matter of law and Larry was injured by the very condition he was employed to

       address.6 We conclude—consistent with Roberts—asbestos work is not

       intrinsically dangerous. We further conclude, however, the Defendants have

       not designated sufficient evidence to establish Larry was injured by the very




       6
        We emphasize the Defendants do not attempt to negate the questions of breach and proximate causation.
       Those questions must be resolved by the trier of fact.

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016               Page 15 of 21
       condition he was employed to address. There is a genuine issue of material fact

       as to whether asbestos work created a peculiar risk of harm to Larry, and those

       similarly situated, of being exposed to asbestos. As it stands, the due

       precaution exception to the general rule of non-liability may be applicable. The

       determination of whether a duty exists in this case is dependent upon

       underlying facts that must be resolved by the trier of fact. See BSA Const. LLC.,

       54 N.E.2d at 1026. Accordingly, the trial court erred in granting the

       Defendants summary judgment on the Myerses’ non-delegable duty claim.


               B. Holding a Principal Liable for Its Own Employee
                       Negligence – Respondeat Superior
[21]   In denying summary judgment to the Defendants on the Myerses’ respondeat

       superior claim, the trial court concluded a genuine issue of material fact existed

       as to whether the Defendants’ employees exposed Larry to asbestos. “Under

       respondeat superior, an employer, who is not liable because of his own acts, can

       be held liable for the wrongful acts of his employee which are committed within

       the scope of employment.” Sword, 714 N.E.2d at 148 (citation and internal

       quotation marks omitted).


[22]   On appeal, the Defendants rely on Roberts and argue they do not, as a matter of

       law, owe a duty to an employee of an independent contractor who is injured by

       the very condition he is employed to address.7 As noted above, the designated




       7
        The Defendants also argue the Myerses are precluded from seeking relief because the Myerses did not
       demonstrate a viable claim against the Defendants’ employees. In support of their contention, the

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                 Page 16 of 21
       evidence does not undisputedly establish Larry was injured by the very

       condition he was employed to address. We therefore need not address whether

       Roberts does, in fact, bar an employee of an independent contractor who is

       injured by the very condition he is employed to address from seeking relief

       under respondeat superior. The Defendants owe Larry a duty of care under

       respondeat superior and a genuine issue of material fact exists as to whether

       Larry was exposed to asbestos as a result of the acts of the Defendants’

       employees. The trial court did not err in denying the Defendants summary

       judgment on this claim.


                                        III. Premises Liability
[23]   “Generally, the owner of property has no duty to furnish the employees of an

       independent contractor a safe place to work in the broad sense as the phrase is

       applied to an employer.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258,

       1264 (Ind. Ct. App. 2002), trans. denied. The landowner must, however,

       generally maintain the premises in a reasonably safe condition for business

       invitees, which includes independent contractors and the contractors’




       Defendants cite only to Davis v. Cent. Rent-A-Crane, Inc., 663 N.E.2d 1177, 1179 (Ind. Ct. App. 1996),
       for the proposition “[a]n employer cannot be held liable under respondeat superior unless a claim can
       be maintained against the employee.” See Appellees’ Br. at 23. In their complaint, the Myerses alleged
       the Defendants’ employees negligently exposed Larry to asbestos while they installed, removed,
       maintained, demolished, replaced, cleaned, tested, labeled, and surveyed areas where asbestos was
       present. Further, the Myerses alleged the employees were acting within the scope of their employment.
       In their motions for summary judgment, the Defendants did not designate any evidence indicating, nor
       did they argue, the Myerses could not maintain a viable claim against the Defendants’ employees.
       Given our standard of review, the Defendants’ argument fails.



       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                  Page 17 of 21
employees. Roberts, 829 N.E.2d at 957. The Restatement (Second) of Torts §

343 (1965) explains this duty:

        A possessor of land is subject to liability for physical harm caused
        to his invitees by a condition on the land if, but only if, he


                 (a) knows or by the exercise of reasonable care would
                 discover the condition, and should realize that it involves
                 an unreasonable risk of harm to such invitees, and


                 (b) should expect that they will not discover or realize the
                 danger, or will fail to protect themselves against it, and


                 (c) fails to exercise reasonable care to protect them against
                 the danger.


In addition, Restatement (Second) of Torts § 343A(1), which is meant to be

read in conjunction with Section 343, see Roberts, 829 N.E.2d at 957-58, states,

“A possessor of land is not liable to his invitees for physical harm caused to

them by any activity or condition on the land whose danger is known or

obvious to them, unless the possessor should anticipate the harm despite such

knowledge or obviousness.” “The word ‘known’ means knowledge of the

existence of the condition or activity itself and also appreciation of the danger it

involves.” Merrill, 771 N.E.2d at 1265. In addition, a possessor of land

“ordinarily has no liability to an independent contractor or the contractor's

employees for injuries sustained while addressing a condition as to which the

landowner has no superior knowledge.” Roberts, 829 N.E.2d at 961.



Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 18 of 21
[24]   The comparative knowledge of a landowner and an invitee, such as Larry, is

       not a factor in assessing whether the landowner owes a duty of care; rather,

       such a fact is relevant in assessing whether the landowner breached its duty.

       Rhodes, 805 N.E.2d at 388. “The determination of whether a breach of duty

       occurred is a factual question requiring an evaluation of the landowner’s

       conduct with respect to the requisite standard of care. In this factual

       assessment, the issue of the landowner’s and the invitee’s comparative

       knowledge becomes relevant.” Roberts, 829 N.E.2d at 959 (citation omitted).

       In other words, in determining whether a landowner breached its duty, we

       consider the following factors: (1) the purpose and intent of the invitation and

       (2) the relative knowledge of the parties.8 Merrill, 771 N.E.2d at 1265.


[25]   In their motion for summary judgment, and again here on appeal, the

       Defendants do not attempt to negate the Myerses’ claim under the Restatement.

       Rather, the Defendants rely on Roberts and contend they cannot be found to

       have breached their duty of care because Larry was injured by the very

       condition he was employed to address, and because there is no evidence the




       8
         Although the Defendants do not rely on the Restatement in arguing they are entitled to judgment as a
       matter of law, we note the evidence establishes the purpose for Larry being on the Defendants’
       premises was to perform electrical work. As to the comparative knowledge, the evidence establishes
       Larry only knew of the presence of asbestos, he did not know the dangers associated with asbestos, but
       claims the Defendants did have, or should have had, knowledge of the dangers and failed to warn
       Larry. The Defendants do not designate evidence indicating they did not have, or should not have
       had, knowledge of the dangers associated with asbestos. Therefore, we are left to accept the Myerses’
       allegation as true and conclude the Defendants have not designated evidence sufficient to negate the
       Myerses’ claim under the Restatement.

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                   Page 19 of 21
       Defendants possessed superior knowledge of the risks associated with asbestos,

       the Myerses’ claim fails. We disagree.


[26]   Roberts requires a showing that a landowner has superior knowledge of the

       dangerous condition on the premises only when an employee of an independent

       contractor is injured by the very condition he was employed to address. 829

       N.E.2d at 961. We therefore agree with Defendants’ assertion that Roberts

       recognizes a common law exception to the Restatement in situations where the

       employee of an independent contractor is injured by the very condition he was

       employed to address. We disagree, however, the exception is applicable in this

       case. As noted above, there is a genuine factual dispute as to whether Larry

       was injured by the very condition he was employed to address. Therefore, the

       Defendants’ reliance on Roberts in this respect is premature and their liability is

       not limited to only the situation where they had superior knowledge of the

       asbestos danger.


[27]   The Defendants did not designate evidence sufficient to negate the Myerses’

       premises liability claim.9 Accordingly, the trial court erred in granting the

       Defendants summary judgment on this claim.




       9
        We further note, even assuming Larry was injured by the very condition he was employed to address, the
       Defendants’ argument still fails because they have not designated evidence negating the Myerses’ claim they
       possessed superior knowledge. In fact, there is no evidence in the record indicating whether any of the
       parties had any knowledge of the risks associated with asbestos.

       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016                   Page 20 of 21
                                                Conclusion
[28]   Indiana’s summary judgment standard carries with it a heightened burden for

       the moving party, and in negligence cases, summary judgment is rarely

       appropriate. As the moving party, the Defendants were required to designate

       evidence sufficient to negate the Myerses’ claims. The Defendants did not meet

       this burden. We conclude there is a genuine issue of material fact as to whether

       the Defendants can be held liable for the negligent acts of their independent

       contractors under one of the exceptions to the non-delegable duty doctrine, and

       the trial court erred in granting summary judgment to Defendants on this

       vicarious liability claim. In addition, the Defendants can be held liable for the

       negligent acts of their own employees, and the trial court did not err in denying

       the Defendants summary judgment on the Myerses’ respondeat superior claim.

       As to the premises liability claim, there is a genuine issue of material fact as to

       whether the Defendants can be liable for failure to maintain their premises in a

       reasonably safe condition, and the trial court erred in granting the Defendants

       summary judgment on that claim. In sum, Defendants are not entitled to

       summary judgment on any of the Myerses’ claims, and we accordingly affirm in

       part, reverse in part, and remand for further proceedings consistent with this

       opinion.


[29]   Affirmed in part, reversed in part, and remanded.


       Barnes, J., and Altice, J., concur.



       Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016   Page 21 of 21
