                                                                                              FILED
                                                                                         09/18/2017, 10:06 am
                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                                                                             Court of Appeals
                                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
      Joseph E. Allman                                           Kevin C. Schiferl
      Indianapolis, Indiana                                      Darren A. Craig
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Carla S. Arthur, as Special                                September 18, 2017
      Representative of the Estate of                            Court of Appeals Case No.
      Mitch Arthur, deceased,                                    42A01-1610-CT-2307
      Appellant-Plaintiff,                                       Appeal from the Knox Circuit
                                                                 Court
              v.                                                 The Honorable Sherry E. Gregg
                                                                 Gilmore, Judge
      MacAllister Machinery Co.,                                 Trial Court Cause No.
      Inc., and MacAllister Rental,                              42C01-1301-CT-5
      LLC,
      Appellees-Defendants




      Altice, Judge.


                                                 Case Summary


[1]   Carla S. Arthur, as Special Representative of the Estate of Mitch Arthur, (the

      Estate) appeals from the trial court’s order granting summary judgment in favor

      of MacAllister Machinery Co., Inc., and MacAllister Rental, LLC (collectively,

      Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017           Page 1 of 12
      MacAllister). On appeal, the Estate argues that the trial court improperly

      granted summary judgment on its negligence claim against MacAllister.


[2]   We affirm.


                                          Facts & Procedural History


[3]   MacAllister operates approximately twelve equipment rental facilities from

      which its customers, primarily industrial concerns, rent or lease heavy

      equipment. In 2008, MacAllister began leasing heavy equipment to Scepter

      Inc., which operated a secondary aluminum recycling facility in Bicknell,

      Indiana. Over the years, MacAllister had leased over twenty different aerial

      boom lifts to Scepter for use in various applications. On January 23, 2012,

      MacAllister delivered yet another boom lift1 leased by Scepter to the Bicknell

      facility.


[4]   With every rental, MacAllister performed an inspection of the equipment and

      completed an Equipment Condition Report (ECR). Those ECRs were

      presented to, reviewed by, and signed by receiving personnel upon delivery of

      the equipment. The ECR for the boom lift at issue reflected that an inspection

      of the boom lift, including checking its fluid levels, tire condition, safety

      features, decals, manuals, and fuel level, had been performed. It is further

      indicated on the ECR that the operating controls and safety devices were




      1
          The boom lift was manufactured by JLG Industries, Inc. and JLG-MHD Indiana, Inc. (collectively JLG).


      Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017                 Page 2 of 12
      working properly at the time of delivery. In this same portion of the ECR is a

      place to acknowledge that “Only properly trained personnel (see back of form)

      shall operate this equipment.” Appellant’s Appendix Vol. 2 at 176 (underlining in

      original). Next to this statement, the box indicating “yes” is marked. Id. On

      the reverse side of the ECR, the responsibilities of the boom lift’s user/operator

      are set out, including that:


          • the user shall ensure only properly trained individuals will operate the
            aerial platform
          • the operator be trained on the equipment
          • the user and their operators shall perform work place inspections prior to
            use of the aerial platform, and
          • the user shall direct his operating personnel and supervise their work to
            ensure operation of the aerial platform in compliance with the provisions
            as outlined in the manual.

      See id. at 28, 177.2


[5]   Mitch Arthur (Arthur) had been a maintenance worker at Scepter’s Bicknell

      facility for over thirty years. During the afternoon of February 3, 2012, Arthur

      and Dave Overton, a maintenance crew co-worker, were tasked with replacing

      part of a smelting furnace. The furnace was surrounded by a shrouding/hood

      and Arthur was using the boom lift to move up inside the hood. Overton was

      on the ground operating a telehandler to hold the piece that Arthur was




      2
        The copy included in the appendix of that part of the ECR setting forth these responsibilities is of poor
      quality and only partly legible. We can, however, decipher enough to be confident with the trial court’s
      findings. We further note that the Estate does not dispute the trial court’s findings in this regard.

      Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017                       Page 3 of 12
      removing. Arthur and Overton had engaged in this process of using a boom lift

      to access the inside of a furnace hood on numerous occasions prior to February

      3. After Arthur completed his final cuts, he began to move the boom lift out

      from under the hood using the lift’s basket controls. Overton reported that

      Arthur suddenly became trapped between the lift’s basket controls and the

      furnace hood. As a result, Arthur suffered fatal injuries.


[6]   In the days after Arthur’s death, a representative from JLG and an investigator

      with the Indiana Occupational Safety and Health Administration (IOSHA)

      inspected the boom lift. The JLG representative determined that the lift was

      functioning properly at the time of the accident. The IOSHA investigator

      initially determined that MacAllister had violated industry standards when the

      driver who delivered the boom lift to Scepter “did not offer training to the

      receiving company employee(s).” Appellant’s Appendix Vol. 5 at 43. MacAllister

      petitioned for review of this determination, informing IOSHA that

      MacAllister’s employee responsible for the Scepter account had “offered both

      individualized and group training to the Scepter management” “at the inception

      of MacAllister’s relationship with Scepter.” Id. at 46, 47. MacAllister asserted

      that it “stands ready to offer any and all training its customers request,” but that

      Scepter had not requested any such training. Id. at 47. Based on this

      information, IOSHA cleared MacAllister of any violation of industry standard.


[7]   On January 25, 2013, the Estate filed its complaint against JLG and

      MacAllister, asserting claims for products liability and negligence. MacAllister



      Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017   Page 4 of 12
      filed a motion for summary judgment on March 23, 2016. 3 The trial court held

      a summary judgment hearing on July 8, 2016. On September 30, 2016, the trial

      court issued its order granting summary judgment in favor of MacAllister. The

      Estate now appeals. Additional facts will be provided as necessary.


                                            Discussion & Decision


[8]   The Estate argues that the trial court improperly granted summary judgment in

      favor of MacAllister. We review summary judgment de novo, applying the

      same standard as the trial court: “Drawing all reasonable inferences in favor of .

      . . the non-moving parties, summary judgment is appropriate ‘if the designated

      evidentiary matter shows that there is no genuine issue as to any material fact

      and that the moving party is entitled to judgment as a matter of law.’” Williams

      v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). “A

      fact is ‘material’ if its resolution would affect the outcome of the case, and an

      issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing

      accounts of the truth, or if the undisputed material facts support conflicting

      reasonable inferences.” Id. (internal citations omitted).




      3
        On July 12, 2013, the product liability claim against JLG was dismissed with prejudice upon the Estate’s
      motion after it was revealed during discovery that JLG manufactured the boom lift more than ten years prior
      to the accident. The claim against JLG was thus precluded by the products liability statute of repose. In
      response to MacAllister’s summary judgment motion, the Estate conceded that any product liability claim
      against MacAllister was likewise barred by the statute of repose and explained that its only claim against
      MacAllister was in negligence.

      Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017                  Page 5 of 12
[9]    The initial burden is on the summary-judgment movant to “demonstrate . . . the

       absence of any genuine issue of fact as to a determinative issue,” at which point

       the burden shifts to the non-movant to “come forward with contrary evidence”

       showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks

       and substitution omitted). Where a trial court enters specific findings and

       conclusions, they offer insight into the rationale for the trial court’s judgment

       and facilitate appellate review, but are not binding upon this court. Henderson v.

       Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. We will affirm upon any theory or basis supported by the designated

       materials. Id. When a trial court grants summary judgment, we carefully

       scrutinize that determination to ensure that a party was not improperly

       prevented from having his or her day in court. Id.


[10]   The Estate claims that MacAllister was negligent in providing rental services to

       Scepter, and as a direct result of that negligence, Arthur suffered fatal injuries

       while operating the boom lift. Citing industry standards, the Estate alleges that

       MacAllister had an affirmative duty to inquire as to the application in which the

       boom lift was going to be used and to train, or offer to train, Scepter employees

       on how to properly operate the boom lift. In response, MacAllister argues that

       it was not obligated, by industry standards or general negligence principles, to

       make such inquiry or to train Scepter’s employees as to the proper operation of

       the lift.


[11]   “[T]o prevail on a claim of negligence the plaintiff must show: (1) duty owed to

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

       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017   Page 6 of 12
       applicable standard of care; and (3) compensable injury proximately caused by

       defendant’s breach of duty.” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62

       N.E.3d 384, 386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484

       (Ind. 2003)). Here, the issue before us is one of duty. Whether a duty exists is a

       question of law for the court to decide. Id. at 386-87 (citing Peters v. Forster, 804

       N.E.2d 736, 738 (Ind. 2004)). Absent a duty there can be no negligence or

       liability based upon the breach. Id. at 386. Thus, when it is determined that no

       duty exists, summary judgment is appropriate. See Reed v. Beachy Const. Corp.,

       781 N.E.2d 1145, 1148-49 (Ind. Ct. App. 2002) (noting that a defendant is

       entitled to summary judgment by demonstrating that the undisputed material

       facts negate at least one element of plaintiff’s negligence claim).


[12]   The Estate directs us to the American National Standard for Boom-Supported

       Elevating Work Platforms, ANSI/SIA A92.5-2006 (ANSI A92.5) as the source

       of MacAllister’s duty as an owner/dealer/lessor4 of aerial lifts such as the lift at

       issue. Pursuant to Section 5.7 of ANSI A92.5, dealers “shall offer appropriate

       training to facilitate owners, users, and operators to comply with requirements”

       set forth in ANSI A92.5. Appellant’s Appendix Vol. III at 99 (emphasis supplied).

       The Estate maintains that this provision creates an affirmative duty on

       MacAllister to train Scepter’s employees, including Arthur, on the safe




       4
        MacAllister acknowledges that it qualifies as a dealer for purposes of ANSI A92.5. Per the definitions
       contained within ANSI A92.5, MacAllister also seemingly qualifies as an owner and lessor and would thus
       be subject to the obligations associated therewith. For our purposes, the obligations of an owner or lessor are
       essentially the same as those imposed upon a dealer.

       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017                      Page 7 of 12
       operation of the boom lift. We disagree. Section 5.7 does not establish a duty

       on MacAllister to actually provide training, but only that MacAllister offer to

       provide training. Further, this provision does not affirmatively obligate

       MacAllister to offer training directly to Scepter’s employees who might operate

       the lift. This provision does not create a duty owed by MacAllister to Arthur.

       We further note that as an owner, MacAllister had a duty to offer training only

       “[u]pon request of the user.” Id. at 100. There is no indication in the

       designated evidence that Scepter requested any training so as to trigger

       MacAllister’s duty to offer training.


[13]   The Estate also cites Section 5.8 of ANSI A92.5, which obligated MacAllister

       to familiarize “the person designated by the receiving entity” to accept the aerial

       platform with certain features, including identification of the weather resistant

       compartment where the manual is stored and the manual itself, and to review

       control functions and safety devices specific to the equipment being delivered.

       Id. It is not alleged that Arthur was the person designated to accept delivery of

       the boom lift at issue. Further, this section does not extend MacAllister’s duty

       in this regard to all employees of Scepter who might operate the boom lift.

       Thus, contrary to the Estate’s claim, MacAllister did not owe a duty to

       familiarize Arthur with the boom lift.


[14]   The Estate also cites Section 5.1 of ANSI A92.5 as support for its allegation

       that MacAllister owed a duty to determine whether the boom lift was proper for

       the intended use/environment. Section 5.1 provides:



       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017   Page 8 of 12
                Sound principles of safety, training, inspection, maintenance,
                application, and operation consistent with all data available
                regarding the parameters of intended use and expected
                environment shall be applied in the training of operators, in
                maintenance, application, safety provisions and operation of the
                aerial platform with due consideration of the knowledge that the
                unit will be carrying personnel.


       Id. at 98.5 The Estate misreads this section as creating an affirmative duty on

       behalf of MacAllister to train Arthur. Section 5.1 does not require—explicitly

       or implicitly—that MacAllister inquire into the intended use/environment for

       the boom lift. Rather, MacAllister only had to use the information available

       regarding the intended use/expected environment when training employees.

       And, even though such “[s]ound principles” should be applied in training, such

       does create a duty on behalf of MacAllister to provide training to Scepter’s

       employees, including Arthur. Id.


[15]   Supporting our interpretation that Sections 5.1, 5.7, and 5.8 do not impose a

       duty upon MacAllister as the dealer/owner/lessor to provide training to

       Scepter employees or to inquire into the application for the boom lift are those

       sections defining the responsibilities and obligations of users. A “User” is

       defined as “[p]erson(s) or entity(ies) that has care, control, and custody of the

       aerial platform,” which may also be “the employer of the operator, a dealer,

       employer, owner, lessor, lessee, or operator.” Id. at 97. Here, Scepter is the




       5
        The Estate asserts that “this duty is doubly applied” to MacAllister because the same provision is also
       contained in ANSI standards relating to lessors of aerial equipment. Appellant’s Brief at 24.

       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017                     Page 9 of 12
       only entity that falls within the definition of user as Scepter had care, control,

       and custody of the boom lift and served as Arthur’s employer. Section 7.6 of

       ANSI A92.5 provides that Scepter, as the user, “shall ensure” that the person

       directed to operate the aerial platform has been trained and familiarized with

       the equipment. Id. at 101. Section 7.7 provides that the user “shall permit only

       properly trained personnel to operate an aerial platform” and “shall ensure”

       that the operator is familiar with the boom lift being used. Id. at 102. A dealer

       “shall assume the responsibilities of users” only when the dealer “directs

       personnel to operate an aerial platform.” Id. at 99.


[16]   The distinction between the responsibilities owed by Scepter as the “user” and

       MacAllister as the “dealer” makes practical sense. Scepter was in the best

       position to know which of its employees might be operating the aerial lifts and

       in what applications/environments the equipment would be used.

       MacAllister’s obligations were to offer training and familiarize a “designated

       person” with the safety features of the boom lift it was renting to Scepter. Only

       if MacAllister had directed Arthur in the use of the boom lift would MacAllister

       have assumed the greater duties imposed on users. In short, the provisions that

       apply to MacAllister as a dealer do not create a duty owed by MacAllister to

       Arthur in terms of training and knowledge of the application in which the boom

       lift was to be operated.


[17]   We also find unpersuasive the Estate’s argument that ANSI A10.42, which

       applies to rigging applications, places a duty on MacAllister to train Scepter’s

       employees on the operation of aerial lifts. ANSI A10.42 requires training of

       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017   Page 10 of 12
       personnel designated to operate rigging tools, but provides that the “employer

       or other entity responsible for supervising the lifting, hoisting, or movement of a

       load shall assess the knowledge, skills, and abilities of individuals designated as

       qualified riggers.” Id. at 108. MacAllister is not Arthur’s employer and had no

       responsibility for supervising the operation.


[18]   In addition to citing ANSI standards, the Estate also argues that MacAllister

       was negligent in rendering its rental services to Scepter as a matter of common

       law. Even under a theory of common law negligence, the Estate must establish

       that MacAllister owed a duty to Arthur. The cases cited by the Estate do not

       support a finding of duty on the part of MacAllister. Here, MacAllister did not

       undertake the rendering of services and did not by its actions or inactions

       increase the risk of harm. The Estate has cited no authority that imposes a duty

       on MacAllister to inquire into the intended use of the boom lift or to train

       Scepter’s employees. Indeed, no Indiana court has determined that a lessor of

       equipment has a duty to ensure that employees of the lessee are trained in its

       use.


[19]   The accident in question had a very tragic ending. We, however, agree with the

       trial court that as applied to the undisputed facts, the law does not place the

       responsibility for the loss on MacAllister. Because MacAllister owed no duty to

       Arthur to inquire as to the application for the boom lift or to train or offer to

       train him regarding operation of the lift, MacAllister is entitled to summary

       judgment.



       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017   Page 11 of 12
[20]   Judgment affirmed.


       Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 42A01-1610-CT-2307 | September 18, 2017   Page 12 of 12
