MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Apr 28 2017, 8:09 am

the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
John P. Daly, Jr.                                         Thomas M. Kimbrough
Golitko & Daly, PC                                        William A. Ramsey
Indianapolis, Indiana                                     Barrett McNagny LLP
                                                          Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricky L. Baker and Victoria                               April 28, 2017
Baker,                                                    Court of Appeals Case No.
Appellants-Plaintiffs,                                    49A02-1605-CT-1060
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable John F. Hanley,
Fall Creek Housing Partners,                              Judge
LLC,                                                      Trial Court Cause No. 49D11-
Appellee-Defendant.                                       1407-CT-24953




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017         Page 1 of 17
[1]   On May 10, 2016, Ricky L. Baker and Victoria Baker (together, the “Bakers”)

      appealed the trial court’s entry of summary judgment in favor of Fall Creek

      Housing Partners (“Fall Creek”) and the denial of their motion to correct error.

      We reviewed the record before us, found the Bakers did not point to an order of

      the trial court which constituted a final judgment under Ind. Appellate Rule

      2(H) 1 or an appealable interlocutory order, and dismissed the Bakers’ appeal.

      See Baker v. Fall Creek Hous. Partners, LLC, No. 49A02-1605-CT-1060 (Ind. Ct.

      App. Nov. 20, 2016).


[2]   The Bakers filed a petition for rehearing arguing they inadvertently failed to

      include a copy of the trial court’s March 7, 2016 order entering final judgment

      in favor of Fall Creek in their appendix, and they filed a motion for leave to

      supplement the appendix to include the court’s March 7, 2016 order. The

      March 7, 2016 order in the Bakers’ supplemental appendix is titled Entry of

      Judgment, grants Fall Creek’s request for summary judgment on the Bakers’

      claims, and “determines that no just reason for delay exists and directs the entry

      of final judgment in favor of Fall Creek and against [the Bakers].” Appellants’

      Supplemental Appendix, Volume 2, at 3. Based on the additional information

      provided in the Bakers’ supplemental appendix, we grant the Bakers’ petition

      for rehearing and motion to supplement the appendix and vacate our original

      opinion. See Meredith v. Meredith, 854 N.E.2d 942, 944-945 (Ind. Ct. App. 2006)




      1
        We noted there was an entry in the chronological case summary (“CCS”) dated March 8, 2016, which
      indicated an order was signed March 7, 2016, but that the record did not include a copy of the order.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017         Page 2 of 17
      (granting the appellant’s petition for rehearing and motion to file supplemental

      appendix following a dismissal of an appeal as untimely, finding that the

      additional information provided in the supplemental appendix showed the

      appeal was timely, and vacating the original opinion and addressing the merits

      of the appellant’s arguments).


                                                       Issue

[3]   The issue is whether the trial court erred in entering summary judgment in

      favor of Fall Creek or abused its discretion in denying the Bakers’ motion to

      correct error. We affirm.


                                      Facts and Procedural History

[4]   Ricky Baker, who was an employee of Waste Management, Inc. (“Waste

      Management”), visited an apartment rental property in Indianapolis owned by

      Fall Creek to unload trash compactor containers on September 24, 2012, and

      was injured when his hand was smashed against a container.


[5]   The Bakers filed a complaint for damages in July 2014 and, with the court’s

      approval, an amended complaint for damages in September 2014 against

      Buckingham Urban Properties, LLC (“Buckingham”), JV Manufacturing Inc.

      d/b/a Cram-A-Lot (“JV”), and Cram-A-Lot Logistics, LLC (“Cram-A-Lot”). 2




      2
        In their motion to amend the complaint, the Bakers stated they filed the original complaint against
      Buckingham and Cram-A-Lot, and that “Cram-A-Lot Logistics, LLC has properly identified themselves . . .
      as JV Manufacturing, Inc. d/b/a Cram-A-Lot,” and they sought leave to amend their complaint to add JV as
      a party to the action. Appellant’s Appendix, Volume 2, at 33.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017       Page 3 of 17
      The amended complaint alleged that Ricky was employed by Waste

      Management; that Buckingham purchased or leased from Cram-A-Lot and/or

      JV a trash compactor for use at a property in Indianapolis; that Buckingham

      contracted with Waste Management for trash removal at the property including

      emptying the Cram-A-Lot and/or JV trash compactor; and that Ricky was a

      business invitee on the property working within the course and scope of his

      employment with Waste Management when he was injured. It further alleged

      that on or about September 24, 2012, Ricky was on the property to empty a

      trash compactor when the compactor moved, crushing his hand; that the

      compactor had been placed on a slope by employees and/or agents of

      Buckingham and/or Cram-A-Lot and/or JV; and that Ricky was seriously

      injured.


[6]   On October 9, 2014, Buckingham filed an Answer to Amended Complaint,

      Affirmative Defenses, Third Party Complaint, and Jury Demand. In its third

      party complaint, it alleged in part that Buckingham Management, LLC

      (“Buckingham Management”) is responsible for managing real estate including

      that occupied by Buckingham; that it entered into a Periodic Services

      Agreement with Waste Management for the collection and disposal of waste;

      and that Waste Management is required to defend and indemnify Buckingham

      from the claims of the Bakers. Waste Management filed a motion for leave to

      file a counterclaim against Buckingham to recover its attorney fees, costs, and

      expenses incurred in its defense to the third party complaint, and the court

      granted the motion and ordered that Waste Management’s counterclaim was


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 4 of 17
      deemed filed as of the date of the order. On March 27, 2015, Buckingham filed

      a motion for judgment on the pleadings as to Waste Management’s

      counterclaim.


[7]   On November 23, 2015, the parties filed a Joint Stipulation to Amend Caption

      and Substitute Parties, stating that at the time the action was initially filed

      confusion existed as to the location of the accident that is the subject of the

      Bakers’ complaint and Buckingham’s third party complaint, and that discovery

      has revealed the location of the incident. The Stipulation stated that the owner

      of the premises on which the incident occurred was Fall Creek and not

      Buckingham, and that Buckingham should be dismissed and Fall Creek

      substituted as a defendant on the Bakers’ claim, as the third party plaintiff on

      the third party complaint against Waste Management, and as the defendant on

      Waste Management’s counterclaim to the third party complaint.


[8]   On November 25, 2015, Fall Creek filed a motion for summary judgment, a

      memorandum in support of the motion, and a designation of evidence which

      included the deposition of Ricky and the Periodic Services Agreement between

      Waste Management and Buckingham Management as agent for property

      owners including Fall Creek. The Bakers filed their opposition and designated

      evidence. Fall Creek filed a motion to strike and reply in support of its

      summary judgment motion which stated in part that the Bakers cited to an

      owners’ manual that was not designated.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 5 of 17
[9]    On February 1, 2016, the court held a hearing on Fall Creek’s summary

       judgment motion. 3 On February 25, 2016, it entered an order of dismissal

       which stated that a joint stipulation of partial dismissal as to JV and Cram-A-

       Lot was before the court and ordered that JV and Cram-A-Lot be dismissed

       from the action.


[10]   On February 26, 2016, the court entered an order which: denied Fall Creek’s

       March 27, 2015 motion for judgment on the pleadings as to Waste

       Management’s counterclaim; granted Fall Creek’s motion to strike as to

       references made by the Bakers to an owners’ manual and denied it in all other

       respects; granted Fall Creek’s November 25, 2015 motion for summary

       judgment; and ordered that Fall Creek submit a proposed judgment entry to the

       court within ten days. On March 7, 2016, the court issued an Entry of

       Judgment granting Fall Creek’s request for summary judgment on the Bakers’

       claims, stating there was no just reason for delay and directing the entry of final

       judgment in favor of Fall Creek and against the Bakers. The Bakers filed a

       motion to correct error, and after a hearing 4 the court denied the motion.


                                                         Discussion

[11]   The issue is whether the trial court erred in entering summary judgment in

       favor of Fall Creek or abused its discretion in denying the Bakers’ motion to




       3
           The record does not contain a transcript of the hearing.
       4
           The record does not contain a transcript of the hearing.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 6 of 17
       correct error. We generally review rulings on motions to correct error for an

       abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265,

       1270 (Ind. 2008), reh’g denied; Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d

       114, 116 (Ind. Ct. App. 2009).


[12]   When reviewing a grant or denial of a motion for summary judgment our well-

       settled standard of review is the same as it is for the trial court: whether there is

       a genuine issue of material fact, and whether the moving party is entitled to

       judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62

       N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the

       burden of making a prima facie showing that there is no genuine issue of

       material fact and that the moving party is entitled to judgment as a matter of

       law. Id. Once these two requirements are met by the moving party, the burden

       then shifts to the non-moving party to show the existence of a genuine issue by

       setting forth specifically designated facts. Id. Any doubt as to any facts or

       inferences to be drawn therefrom must be resolved in favor of the non-moving

       party. Id. Summary judgment should be granted only if the evidence

       sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of

       material fact and that the moving party deserves judgment as a matter of law.

       Id.


[13]   The Bakers argue that Fall Creek controlled the instrumentality of harm by

       moving a trash compactor on wheels from a level concrete pad onto a sloped

       drive where it rolled and injured Ricky and that summary judgment is not

       appropriate where the premises owner retains and exercises control over the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 7 of 17
       instrumentality of harm. They argue that Ricky never touched the compactor

       until it rolled down the slope.


[14]   Fall Creek contends that a landowner is generally not liable for injuries suffered

       by an employee of an independent contractor while the employee is doing work

       the independent contractor was hired to do, that Ricky knew the compactor

       was on wheels and sitting on an incline, and that, assuming the compactor and

       sloped arc of the land were dangerous, the conditions were obvious and

       undisputedly known to Baker.


[15]   To prevail on a claim of negligence the plaintiff must show: (1) a duty owed to

       plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the

       applicable standard of care; and (3) compensable injury proximately caused by

       defendant’s breach of duty. Goodwin, 62 N.E.3d at 386. Absent a duty there

       can be no negligence or liability based upon the breach. Id. Whether a duty

       exists is a question of law for the court to decide. Id. at 386-387. A defendant

       may obtain summary judgment in a negligence action when the undisputed

       facts negate at least one element of the plaintiff’s claim. Pelak v. Ind. Indus.

       Servs., Inc., 831 N.E.2d 765, 769 (Ind. Ct. App. 2005), reh’g denied, trans. denied.

       Where the facts are undisputed and lead to but a single inference or conclusion,

       the court as a matter of law may determine whether a breach of duty has

       occurred. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003).


[16]   Generally, an owner of property is under no duty to provide an independent

       contractor with a safe place to work. Id. (citing Zawacki v. U.S.X., 750 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 8 of 17
       410, 414 (Ind. Ct. App. 2001), trans. denied). However, the owner has a duty to

       maintain the property in a reasonably safe condition for business invitees,

       including employees of independent contractors. Id. (citing Merrill v. Knauf

       Fiber Glass GmbH, 771 N.E.2d 1258, 1264-1265 (Ind. Ct. App. 2002), trans.

       denied; Zawacki, 750 N.E.2d at 414). The Restatement (Second) of Torts § 343

       (1965) provides:

               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.

       (Emphasis added). See Pelak, 831 N.E.2d at 769; Merrill, 771 N.E.2d at 1265.


[17]   Section 343A of the Restatement, which is read in conjunction with Section

       343, provides: “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.” RESTATEMENT (SECOND) OF TORTS § 343A

       (emphasis added); Merrill, 771 N.E.2d at 1265 (citing Ozinga Transp. Sys., Inc. v.

       Mich. Ash Sales, Inc., 676 N.E.2d 379, 385 (Ind. Ct. App. 1997), reh’g denied,

       trans. denied). “The word ‘known’ denotes not only knowledge of the existence

       of the condition or activity itself, but also appreciation of the danger it
       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 9 of 17
       involves.” RESTATEMENT (SECOND) OF TORTS § 343A, cmt. b. “‘Obvious’

       means that both the condition and the risk are apparent to and would be

       recognized by a reasonable man, in the position of the visitor, exercising

       ordinary perception, intelligence, and judgment.” Id. The comparative

       knowledge of a possessor of land and an invitee regarding known or obvious

       dangers may properly be taken into consideration in determining whether the

       possessor breached the duty of reasonable care under Sections 343 and 343A.

       Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003).


[18]   Similarly, control over a premises is used to determine who is liable for injuries

       on the premises. Pelak, 831 N.E.2d at 769. The thread through the law

       imposing liability based on occupancy of a premises is control. Id. The

       rationale is to subject to liability the person who could have known of any

       dangers on the land and therefore could have acted to prevent any foreseeable

       harm. Id. at 769-770. The theory that a duty arises based on the control

       retained by the premises owner is consistent with the Restatement (Second) of

       Torts § 414, which provides:


               One who entrusts work to an independent contractor, but who
               retains the control of any part of the work, is subject to liability
               for physical harm to others for whose safety the employer owes a
               duty to exercise reasonable care, which is caused by his failure to
               exercise his control with reasonable care.

       See Pelak, 831 N.E.2d at 770. Section 414 applies “where there is retention of

       control over the operative detail of the work.” Id. (citation omitted). Comment

       c to Section 414 discusses the limits of the rule:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 10 of 17
               In order for the rule stated in this Section to apply, the employer
               must have retained at least some degree of control over the
               manner in which the work is done. It is not enough that he has
               merely a general right to order the work stopped or resumed, to
               inspect its progress or to receive reports, to make suggestions or
               recommendations which need not necessarily be followed, or to
               prescribe alterations and deviations. Such a general right is
               usually reserved to employers, but it does not mean that the
               contractor is controlled as to his methods of work, or as to
               operative detail. There must be such a retention of a right of
               supervision that the contractor is not entirely free to do the work
               in his own way.

       RESTATEMENT (SECOND) OF TORTS § 414, cmt. c.


[19]   The designated evidence reveals that Waste Management entered into a

       Periodic Services Agreement Between Owner and Service Provider in 2011

       pursuant to which it agreed to perform certain waste collection and disposal

       work. Waste Management agreed to provide at its sole expense all labor,

       materials, services, equipment, tools, scaffolds, and hoists required to fulfill its

       obligations and to complete the work; to at all times be responsible for

       initiating, maintaining and supervising all safety precautions and programs in

       connection with the work; and, to the extent doing so was within its control and

       authority, to provide all reasonable protection to prevent damage, injury, or loss

       to all employees of Waste Management performing services on the property.


[20]   In his deposition, Ricky testified that he began his employment with Waste

       Management in 1989, at some point he became a supervisor, he went back to

       driving a truck in 2003, and that, from 2003 until the date of the accident, he


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 11 of 17
       was driving commercial front-load trucks. He testified that, as of the date of the

       accident, he had worked an established route for at least two years, he had the

       same route each Monday, and that the accident occurred on a Monday

       morning. Ricky indicated that he always drove the same truck and had been

       driving it for about three years. When asked if he had “been delivering to that

       specific location then for at least two years,” Ricky testified “[n]ot that specific

       location because it was a newer customer,” and when asked “I thought you said

       you did an established route for two years” and “was this something that was

       added to the route during that two years,” he replied “Yes. If we have a new

       customer, they just add it to the list. If we lose a customer, then they’ll just take

       it out of the list.” Appellant’s Appendix, Volume 3, at 40. When asked how

       long he had been picking up from the location where the accident occurred,

       Ricky answered “[p]robably three months.” Id.


[21]   When asked to describe what happened the day of the accident, Ricky testified

       that he arrived at the location, that “[t]hey were compactors, so they already

       had them separated and pulled out on like a little driveway area,” and that “the

       truck wouldn’t fit up there, so [he] actually had to park in the street and go get

       the containers and pull them down.” Id. at 39. He testified “I went up and got

       the first one” and “was pushing it down to the truck” and, “[w]hile I was still

       holding onto it, for some reason another one – and I didn’t see what happened

       behind me – just came rolling on its own and smashed my hand between the

       two, the one that I was holding and that one. It came from behind.” Id.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 12 of 17
[22]   Ricky indicated that there were four wheels on the compactor containers that

       smashed his hand, one on each corner, and that the containers were designed to

       roll. When asked why the containers had wheels on them at that location,

       Ricky answered “[b]ecause they were in, like, a little garage area. So they had

       wheels so they could bring them out to the truck.” Id. at 42. Ricky indicated

       that he moved the containers on wheels into position so they could be

       hydraulically lifted to dump into the truck and that was something he did every

       time he went to this apartment complex. He testified that, when he went to the

       complex, the containers were “[u]p by the garage,” they were outside, he would

       have to move the containers “maybe 25 feet” to his truck, and that after he

       unloaded them he would roll them back up into that position. Id. at 46. When

       asked if, on the day of the accident, “the containers were in the same location

       where they would normally be any other time [he was] on a route,” Ricky

       responded affirmatively, and when asked “[s]o for the three months previous to

       that time, each time you got there the containers would be in the same

       location,” he answered “[y]es, pretty much.” Id.


[23]   When asked to describe the slope, Ricky stated “[i]t’s like a little drive that goes

       up to where the containers are inside the garage” and “[i]t’s just a slight grade.”

       Id. at 48. When asked “[s]o when you get there that day, are they on [a] flat

       surface or on the slope,” Ricky answered “[t]hey’re on the slope,” and when

       asked “[a]nd you knew that from all your times that you’ve been there before,”

       he answered “Yes.” Id. When asked “[a]nd when you got done unloading

       them all the times you’d been there before, you put them back on that slight

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 13 of 17
       slope,” Ricky replied “Yes. I’d push them all the way into the garage for the

       customer.” Id. When asked “I’m confused. When you got there, were they in

       the garage,” he responded “No, they would be out. They had a guy who would

       unhook them and roll them out.” Id. When asked if he placed the containers

       back where he found them or back in the garage, Ricky testified “[s]ometimes I

       would put them back where I found them. Sometimes I would push them all

       the way in for the guy, for the customer.” Id. When asked “[s]o you clearly

       knew that slope was there,” Ricky replied “[y]es,” and when asked “[a]nd you

       clearly knew that the containers and compactors were on wheels,” he again

       replied “[y]es.” Id.


[24]   Fall Creek is not liable to its invitees for harm caused by any activity or

       condition “whose danger is known or obvious to them,” RESTATEMENT

       (SECOND) OF TORTS § 343A, cmt. b, and the designated evidence establishes

       that the danger presented by the containers, including the fact they were on

       wheels and were placed on a drive which had a slight grade, was known and

       obvious to Ricky. Ricky indicated that he knew the slope existed and the

       containers were on wheels, at the time of the accident he had been picking up

       from the location for approximately three months, he had the same route each

       week, the containers were “pretty much” in the same location each time, and

       that when he arrived that day the containers were on the slope. Appellant’s

       Appendix, Volume 3, at 46.


[25]   In addition, Fall Creek did not have knowledge of any danger that Ricky did

       not possess and could not have informed him of any facts of which he was not
       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 14 of 17
already aware. The placement of the wheeled containers did not constitute a

condition that Fall Creek should have expected that Ricky would not discover

or fail to protect himself against. See RESTATEMENT (SECOND) OF TORTS, § 343

(a possessor of land is subject to liability only if it “should expect that [invitees]

will not discover or realize the danger, or will fail to protect themselves against

it”); Merrill, 771 N.E.2d at 1265-1267 (observing that Knauf hired a professional

roofing contractor to perform roof repairs and an employee of the contractor fell

into a skylight; discussing Sections 343 and 343A; noting the employee knew of

the skylights on the roof and their attendant dangers, the employee fell into a

skylight despite his knowledge and appreciation of the risks, and that Knauf

could not have anticipated such events given the comparable knowledge of the

parties; and holding there was no triable issue of fact regarding Knauf’s liability

and that the trial court properly granted Knauf summary judgment) (citing

Zawacki, 750 N.E.2d at 415-416 (discussing Sections 343 and 343A and noting

that the landowner’s comparative knowledge was no greater than that of an

employee who worked for an independent contractor hired to perform repair

work on its property); Ozinga, 676 N.E.2d at 386 (discussing Sections 343 and

343A and observing a truck driver was employed by an independent contractor

to remove fly ash from a landowner’s property, that the employee fell on fly

ash, and that the landowner’s comparative knowledge was no greater than that

of the employee and the landowner could not have informed the employee of

any facts of which he was not already aware)); Bethlehem Steel Corp. v. Lohman,

661 N.E.2d 554, 558 (Ind. Ct. App. 1995) (noting that the premises owner

established there was no evidence of a breach of duty, it is appropriate to
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 15 of 17
       consider the comparative knowledge of the landowner and invitee, and the

       contractor’s employee was in a better position to discover any defects in a crane

       or the method of cleaning the engine).


[26]   Further, we cannot conclude that Fall Creek retained control or a right of

       supervision over the manner in which Waste Management performed its work

       at the time the accident occurred to a degree sufficient to subject it to liability.

       See RESTATEMENT (SECOND) OF TORTS § 414, § 414, cmt. c. Ricky testified

       that, on the day of the accident, “I went up and got the first one” and “was

       pushing it down to the truck” and, “[w]hile I was still holding onto it, . . .

       another one . . . came rolling . . . and smashed my hand.” Appellant’s

       Appendix, Volume 3, at 39. The designated evidence demonstrates that Ricky

       had the opportunity to take any necessary safety precautions and, at a

       minimum, that Fall Creek did not maintain control of the work at the time the

       accident occurred. See Pelak, 831 N.E.2d at 773 n.8 (finding the designated

       evidence did not demonstrate the premises owner had sufficient control over the

       workplace to subject it to potential liability); Zawacki, 750 N.E.2d at 412

       (holding the work site was under the control of the contractor at the time the

       work was performed and the time of the accident); Bethlehem Steel, 661 N.E.2d

       at 557-558 (noting that, while the premises owner maintained some control as

       to the timing of repair work and the physical location of the cranes, it did not

       exercise any control over the actual manner or means by which the contractor

       repaired and maintained the cranes, and affirming summary judgment in favor




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017   Page 16 of 17
       of the premises owner). 5 Also, even assuming Fall Creek had retained control

       of the premises to a sufficient degree, as noted the danger presented by the

       containers was known and obvious to Ricky and Fall Creek did not have

       knowledge of any danger that Ricky did not possess and could not have

       informed him of any facts of which he was not already aware. The trial court

       did not err in entering summary judgment in favor of Fall Creek.


                                                      Conclusion

[27]   For the foregoing reasons, we affirm the entry of summary judgment in favor of

       Fall Creek and against the Bakers.


[28]   Affirmed.


       Robb, J., and Mathias, J., concur.




       5
         The Bakers cite to Huffman v. Dexter Axle Co., 990 N.E.2d 947 (Ind. Ct. App. 2013), and Beta Steel v. Rust,
       830 N.E.2d 62 (Ind. Ct. App. 2006). In Huffman, an employee of trucking company died when a bundle of
       axles which had not been strapped or secured to a flatbed trailer fell. 990 N.E.2d at 951. The premises
       owner argued it was not in control of its property at the time of the accident because it was not open for
       business, but the designated evidence did not show the premises owner had relinquished control of its
       property to the employee or the trucking company, and thus we found that the premises owner did not
       establish it did not owe the employee a duty as a matter of law. Id. at 953. In Beta Steel, the designated
       evidence showed that the premises owner had complete control over the design and installation of a faulty
       electrical control cabinet that allegedly caused the victim’s death. 830 N.E.2d at 71. Here, the designated
       evidence does not demonstrate that Fall Creek exercised or retained sufficient control or the type of control
       that the premises owners in Huffman and Beta Steel exercised or retained.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CT-1060 | April 28, 2017            Page 17 of 17
