MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Jan 31 2017, 8:54 am

regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven W. Etzler                                         Francis A. Veltri
Malloy Etzler & Lawhead, P.C.                            Travelers Staff Counsel Indiana
Highland, Indiana                                        Merrillville, Indiana
                                                         Paul T. Belch
                                                         Travelers Staff Counsel Indiana
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Benjamin Odneal,                                         January 31, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         45A03-1609-CT-2037
        v.                                               Appeal from the Lake Superior
                                                         Court
Circle Medical Management,                               The Honorable William E. Davis,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         45D05-1408-CT-155



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017    Page 1 of 8
[1]   Benjamin Odneal appeals the trial court’s grant of summary judgment in favor

      of Circle Medical Management (Circle Medical). He argues that the trial court

      incorrectly determined that Circle Medical did not owe him a duty. Finding

      that summary judgment was appropriately granted, we affirm.


                                                            Facts
[2]   Odneal was an employee of Stericycle, Inc. (Stericycle), a medical waste

      processing facility. Stericycle did business with Circle Medical, a dialysis

      treatment center. In providing dialysis treatment, Circle Medical used and

      needed to dispose of spent bloodlines, needles, syringes, and other medical

      waste. Accordingly, Circle Medical entered into a Service Agreement with

      Stericycle’s predecessor1 in May 2009. Stericycle would provide Circle Medical

      with containers, Circle Medical would fill the containers with medical waste,

      and Stericycle would transport those containers to its disposal facility.


[3]   Pursuant to the Service Agreement, these containers were 96-gallon carts. The

      Service Agreement provided that “[t]o ensure compliance with packaging

      requirements and the safety of Service Provider’s employees, Service Provider

      reserves the right to charge a minimum overweight penalty of $0.65 per lb.

      when weights exceed 40 lbs. per container.” Appellant’s App. p. 195.

      Stericycle provided an information sheet to Circle Medical that said that the




      1
          For ease of reading, we will refer to this predecessor simply as Stericycle.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 2 of 8
      maximum weight of the containers when full of waste should be no more than

      150 pounds. Appellant’s App. 222.


[4]   On August 30, 2012, Stericycle retrieved five waste containers from Circle

      Medical, each of which weighed more than 150 pounds. Once the containers

      were transported to Stericycle’s facility, Odneal started to pick up one of the

      containers but realized that it was too heavy for him to lift. He asked a

      coworker for help. As the two began picking the container up, the container

      went off balance and Odneal was pulled into a railing. He suffered a lower

      back injury, which required two lumbar surgeries and a spinal implant to

      rectify.


[5]   On August 15, 2014, Odneal filed a complaint against Circle Medical, claiming

      that Circle Medical owed him a duty to avoid overfilling its waste containers

      and that its breach of that duty caused his injury. On May 31, 2016, Circle

      Medical filed a motion for summary judgment along with designated evidence,

      to which Odneal responded. After a hearing, the trial court entered summary

      judgment in Circle Medical’s favor on August 15, 2016. Odneal now appeals.


                                   Discussion and Decision
[6]   Our standard of review of a trial court’s grant of summary judgment is well

      settled:

              Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure,
              summary judgment is appropriate when there are no genuine
              issues of material fact and the moving party is entitled to
              judgment as a matter of law. When we review a grant of
      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 3 of 8
              summary judgment, our standard of review is the same as that of
              the trial court. We consider only those facts that the parties
              designated to the trial court. The Court must accept as true those
              facts alleged by the nonmoving party, construe the evidence in
              favor of the nonmovant, and resolve all doubts against the
              moving party.


              A trial court’s order on summary judgment is cloaked with a
              presumption of validity; the party appealing from the grant of
              summary judgment must bear the burden of persuading this
              Court that the decision was erroneous. We may affirm the grant
              of summary judgment upon any basis argued by the parties and
              supported by the record.


      Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007) (internal citations

      omitted). To prove negligence, Odneal is required to show, among other

      things, that Circle Medical owed him a duty. Mishler v. State, 730 N.E.2d 229,

      231 (Ind. Ct. App. 2000). Absent a duty, there can be no breach of duty and no

      recovery in negligence. Id. Whether a duty exists is generally a question of

      law. Id.


[7]   We find our decision in Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644 (Ind. Ct.

      App. 1998), to be instructive. In that case, the plaintiff worked for a

      distribution company, which contracted with trucking companies to send goods

      to their final destinations. Id. at 646. One day, the trucking company returned

      a trailer to the distribution company, and as the plaintiff unloaded and cleaned

      it, she slipped on a lid that had fallen on the ground. Id. She sued the trucking

      company for negligence, but the trial court granted summary judgment against

      her. Id.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 4 of 8
[8]   In affirming the trial court, we recognized that while employers have a general

      duty to use reasonable care to provide their own employees with a safe work

      environment, employers do not owe such a general duty to the employees of

      other companies. Id. at 647. We noted that after the trucking company

      returned the trailer,

              it was the sole responsibility of [the distributor] to open the sealed
              trailer, to unload any returned merchandise, and to clean the
              trailer of the empty totes, lids, and pallets. [The trucking
              company] had no discretion to inspect the condition of the
              interior of the trailers upon arrival at [the distributor] and
              similarly had no control over how [the distributor]’s employees
              carried out their responsibility to unload and clean the trailers.


      Id. After also finding that the accident was not foreseeable and that public

      policy did not support finding a duty, we affirmed. Id. at 648.


[9]   In that case, however, we noted the following:

              We find nothing in the record that indicates that [the trucking
              company] was required by [the distributor] to strap down the
              totes and lids or that [the trucking company] otherwise assumed
              a duty to strap down the totes and lids. Even if we were to
              conclude that [the trucking company] was required to take such
              precautions or voluntarily undertook them, there is no evidence
              that such action was for the benefit or safety of [the distributor]’s
              employees.


      Id. In the present case, Odneal focuses on the language in the Service

      Agreement that provided Stericycle with the right to charge an “overweight

      penalty of $0.65 per lb. when weights exceed 40 lbs. per container,” the purpose

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 5 of 8
       of which was “[t]o ensure compliance with packaging requirements and the

       safety of Service Provider’s employees . . . .” Appellant’s App. p. 195. Odneal

       points out that a duty of care, the breach of which will support a negligence

       action, may arise contractually. Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212,

       1218 (Ind. Ct. App. 1983). In determining whether a duty exists, this Court will

       give effect to the intent of the parties as reflected by the language of the

       document. Id. Odneal argues that this provision in the contract evinces Circle

       Medical’s intent to assume a duty to Stericycle’s employees to avoid overfilling

       the containers.


[10]   Odneal spends much of his brief attempting to prove that this provision was not

       intended to compensate Stericycle for the added costs of heavier containers but

       was rather intended solely to penalize Circle Medical for overheavy shipments.

       We cannot agree with this argument, as the two concepts are economically

       indistinguishable. It is impossible to say that the provision does one or the

       other; it clearly does both. On the one hand, by requiring extra payment for

       containers weighing over forty pounds, it discourages Circle Medical from

       filling its containers with more than forty pounds of waste. On the other hand,

       it also makes clear that Circle Medical is perfectly within its rights to fill

       containers with more than forty pounds of waste, so long as Circle Medical is

       willing to pay the extra charge.


[11]   We find the existence of added compensation dispositive. If the Service

       Agreement had said that Circle Medical, for the safety of Stericycle’s

       employees, agreed to not fill the containers beyond a certain weight, then Circle

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 6 of 8
       Medical would have assumed a duty not to do so. But the Service Agreement

       instead set a price for added weight—in such a circumstance, Circle Medical’s

       only duty regarding the weight of the containers was to pay the added cost of

       any containers weighing more than forty pounds. Other than the existence of

       this pricing mechanism, we find the present case to be on all fours with

       Ebbinghouse.


[12]   Odneal also argues that he was owed a duty as a third-party beneficiary of the

       Service Agreement between Circle Medical and Stericycle. A third-party

       beneficiary contract exists when (1) the parties intend to benefit the third party,

       (2) the contract imposes a duty on one of the parties in favor of the third party,

       and (3) the performance of the terms of the contract renders a direct benefit to

       the third party intended by the parties to the contract. Gilliana v. Paniaguas, 708

       N.E.2d 895, 898 (Ind. Ct. App. 1999). A party may use his status as a third-

       party beneficiary as the basis of a duty in a negligence context. St. Paul Fire &

       Marine Ins. Co. v. Pearson Const. Co., 547 N.E.2d 853, 857 (Ind. Ct. App. 1989).


[13]   We find that Odneal is not a third-party beneficiary of the Service Agreement

       because any benefits that accrue to him do so remotely, not directly. Circle

       Medical and Stericycle did not contract together with the primary goal of

       providing safety to Odneal; they contracted together with the primary goal of

       exchanging a service for compensation. Although there is arguably some

       benefit that Odneal receives from the contract—perhaps the financial

       disincentive will encourage Circle Medical to pack the containers lightly, which

       in turn will make Odneal’s job safer and easier—this is far from the type of

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 7 of 8
       direct benefit required to create a third-party beneficiary contract. Accordingly,

       this argument is unavailing.


[14]   In sum, Circle Medical did not agree to refrain from filling containers with

       more than forty pounds of material, it agreed to pay an extra fee for doing so.

       Therefore, as a matter of law, Circle Medical did not owe Odneal a duty to not

       fill the containers with overheavy contents. Nor was Odneal a third-party

       beneficiary of the Service Agreement. Because Circle Medical did not owe

       Odneal any duty, it cannot be held liable for negligence and summary judgment

       was appropriately granted.


[15]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017   Page 8 of 8
