MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Jun 14 2017, 8:35 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR
Robert J. Gabrielse                                      APPELLEE/CROSS-APPELLANT,
Law Office of Robert J. Gabrielse                        BMW CONSTRUCTORS, INC.
DeMotte, Indiana                                         Anthony R. Jost
                                                         Laura S. Reed
F. Joseph Jaskowiak                                      James O. Giffin
Lauren K. Kroeger                                        Riley Bennett Egloff LLP
Hoeppner Wagner & Evans LLP                              Indianapolis, Indiana
Merrillville, Indiana
                                                         ATTORNEYS FOR
                                                         APPELLEE/CROSS-APPELLEE,
                                                         NORTHERN INDIANA PUBLIC
                                                         SERVICE COMPANY
                                                         Brent E. Inabnit
                                                         Nicholas J. Derda
                                                         Sopko, Nussbaum, Inabnit &
                                                         Kaczmarek
                                                         South Bend, Indiana
                                                         ATTORNEY FOR APPELLEE/CROSS-
                                                         APPELLEE, PEKRON CONSULTING,
                                                         INC.
                                                         Scott B. Cockrum
                                                         Schererville, Indiana
                                                         ATTORNEY FOR CROSS-APPELLEE,
                                                         ATLANTIC PLANT SERVICES, LLC
                                                         David W. Pera
                                                         Buoscio, Pera & Kramer
                                                         Merrillville, Indiana




Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017                 Page 1 of 12
                                                         ATTORNEYS FOR CROSS-
                                                         APPELLEE, AREA SHEET METAL,
                                                         INC.
                                                         Daniel W. Glavin
                                                         Kathleen M. Erickson
                                                         Schererville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Julie A. Jabaay, Individually and                        June 14, 2017
as Personal Representative of the                        Court of Appeals Case No.
Estate of Troy Allen Jabaay,                             45A05-1608-CT-1768
Deceased,                                                Appeal from the Lake Superior
Appellant/Plaintiff,                                     Court
                                                         The Honorable John M. Sedia,
        v.                                               Judge
                                                         Trial Court Cause No.
BMW Constructors, Inc.,                                  45D01-1401-CT-34
Appellee/Cross-Appellant/Defendant,

Northern Indiana Public Service
Company, Atlantic Plant
Services, LLC, Area Sheet
Metal, Inc. and Pekron
Consulting, Inc.,
Appellees/Cross-Appellees/Defendants




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 2 of 12
[1]   Julie A. Jabaay, individually and as Personal Representative of the Estate of

      Troy Allen Jabaay (“Jabaay Estate”) 1 appeals the trial court’s grant of summary

      judgment in favor of BMW Constructors, Inc. (“BMW”) and Northern Indiana

      Public Service Company (“NIPSCO”). 2 We affirm. 3



                               Facts and Procedural History
[2]   On December 1, 2012, the NIPSCO Schahfer Generating Station (“Station”) in

      Wheatfield, Indiana, was damaged following an explosion. Pursuant to

      existing service agreements, NIPSCO contacted various independent

      contractors to conduct repairs to the Station. Those independent contractors

      included BMW and Safway Services, LLC (“Safway”).


[3]   Safway was hired to construct and maintain scaffolds. On December 1 and

      December 2, 2012, a crew from Safway erected scaffolding on the east (“East

      Scaffold”), west (“West Scaffold”), and south sides of the Station. Troy Jabaay

      (“Troy”) was a seasoned union carpenter and had been building scaffolding for

      approximately fifteen years. Because of his extensive experience, Safway had

      selected him to be a “Competent Person” in 1997. (Appellant’s App. Vol. V at

      183.) Troy had to complete training and take a certification exam to become a




      1
          We deny the Jabaay Estate’s request for oral argument via order issued contemporaneous with this opinion.
      2
       The Jabaay Estate does not challenge the trial court’s grant of summary judgment in favor of Atlantic Plant
      Services, LLC (“Atlantic”); Area Sheet Metal, Inc. (“ASM”); and Pekron Consulting, Inc. (“Pekron”).
      3
       Because we affirm, we need not address BMW’s cross-appeal arguments regarding liability in the event we
      were to reverse the trial court’s decision.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017             Page 3 of 12
      Competent Person. As a Safway Competent Person, Troy had “a responsibility

      to make decisions about what is safe and not safe with respect to scaffolds[.]”

      (Appellant’s App. Vol. IV at 97-8.)


[4]   Between 6:00 a.m. and 7:00 a.m. on December 4, 2012, Troy inspected the

      West Scaffold at the Station as part of his duties. He initialed a yellow tag

      attached to the West Scaffold indicating he had completed a safety inspection

      and the West Scaffold was safe to use. After he completed these inspections,

      Troy met with Dick Caldwell, the BMW day shift supervisor, who gave Troy a

      note written by John Ceglarek, the BMW night shift supervisor, indicating work

      done by BMW the night before. The hand-written note stated:

              12-3-12 Nights


              Dick
                 We got the old duct out from top of channel. Started cleaning
              top flgs of channel box. Nipsco had us down for about 1 ½ hours
              when starting C mill up.
                  We had to remove most of top scaffolding to get duct out.
                  You will need to have it put back to work on exp. joint flg.


                                                                          Have a good day
                                                                          John


              P.S. Dick, we cut one up right on south west scaffold to get
              bottom out. We remove =HANDRAIL= on channel level. This
              needs to redone before using scaffolding.


      (Appellant’s App. Vol. V at 156) (errors in original). Caldwell testified during a

      deposition he let Troy
      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 4 of 12
              know that I wasn’t real sure, but I thought that if they did
              anything, it would have been to the east side because that’s the
              side the piece was going to come out. So I basically just
              apologized to Troy saying that I didn’t know what was going on
              with this note, and if he could make more sense of it with the
              note. Normally, I would just tell him, but me not understanding
              this note, I give it to him to see if he could - - you know if it made
              more sense to him.


      (Appellant’s App. Vol. III at 75) (errors in original). Caldwell also testified

      Troy told Caldwell that Troy would “take care of it.” (BMW App. Vol. II at

      103.)


[5]   Troy then alerted his crew and asked them to accompany him to the West

      Scaffold. Troy climbed up the ladder to the West Scaffold. He was not wearing

      a harness, which was required to maintain three points of contact for safety

      reasons. Troy stepped off the ladder onto the handrail, which came loose at

      one end. The handrail, with Troy on it, swung out from the end still affixed to

      the West Scaffold. Troy fell thirty feet and died from his injuries.


[6]   After the incident, the Indiana Occupational Safety and Health Administration

      (“IOSHA”) investigated. IOSHA concluded Troy breached his duty as

      Safway’s Competent Person to thoroughly and properly inspect the scaffolding,

      and his failure to do so caused the incident that resulted in his death. Based on

      their investigation, IOSHA cited Safway with a serious violation of 29 CFR §

      1926.20(b)(2), indicating Safway

              did not provide for frequent and regular inspections of the jobsite
              and equipment by a competent person[, specifically] . . . On or

      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 5 of 12
              about, December 04, 2012: The employers [sic] designated
              competent person, on the site, failed to identify existing and
              predictable hazards and/or take the necessary measures to
              alleviate the hazards of scaffolding.


      (BMW App. Vol. III at 124.) Safway filed an appeal of IOSHA’s decision,

      arguing it was not responsible for the incident because Troy’s actions

      constituted employee misconduct. On February 17, 2014, IOSHA dismissed

      the citation against Safway based on Safway’s defense of employee misconduct.


[7]   On April 22, 2013, the Jabaay Estate filed a civil complaint against BMW

      alleging negligence. BMW filed a response naming NIPSCO, Atlantic, Safway,

      and Troy as liable non-parties. On August 22, 2013, the Jabaay Estate

      amended its complaint to include NIPSCO and Atlantic. BMW filed a

      response naming ASM and Pekron as additional non-parties. On October 21,

      2014, the Jabaay Estate again amended its complaint to include ASM and

      Pekron as non-parties. All defendants separately filed motions for summary

      judgment between May 2015 and March 2016. On April 25, 2016, the Jabaay

      Estate filed a reply to NIPSCO and BMW’s motions for summary judgment.

      Additionally, on April 25, 2016, BMW filed a response to its co-defendants’

      motions for summary judgment arguing all defendants were entitled to

      summary judgment or none of them were, and preserving the right to name any

      co-defendants dismissed from the action as liable non-parties.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 6 of 12
[8]   The trial court heard argument on the parties’ respective motions for summary

      judgment on June 30, 2016, and July 13, 2016. On July 15, 2016, the trial court

      granted summary judgment in favor of all defendants.



                                 Discussion and Decision
[9]   Our standard of review for summary judgment is well-established:


              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 T.R. 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).


              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). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 7 of 12
       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Therefore, for the trial court

       to properly grant summary judgment, the movants must have “made a prima

       facie showing that their designated evidence negated an element of the

       nonmovants’ claims, and, in response, the nonmovants must have failed to

       designate evidence to establish a genuine issue of material fact.” Cox v.

       Mayerstein–Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014). We will

       affirm a trial court’s decision on summary judgment if it is sustainable on any

       theory or basis found in the evidentiary matter designated to the trial court.

       United Rural Elec. Membership Corp. v. Ind. Mich. Power Co., 648 N.E.2d 1194,

       1196 (Ind. Ct. App. 1995), trans. denied. Summary judgment is rarely

       appropriate in negligence actions. McCormick v. State, 673 N.E.2d 829, 832

       (Ind. Ct. App. 1996).


[10]   The tort of negligence is composed of three elements: “(1) a duty owed by the

       defendant to conform its conduct to a standard of care necessitated by its

       relationship with the [plaintiff]; (2) a breach of that duty; and (3) an injury

       proximately caused by the breach.” Id. at 837. Here, we find the issue of the

       proximate cause of Troy’s injury to be dispositive.


[11]   It is well-established:


               The Comparative Fault Act created a modified comparative fault
               scheme in which “any contributory fault chargeable to the
               claimant diminishes proportionately the amount awarded as
               compensatory damages....” Ind. Code § 34-51-2-5. In addition,
               “the claimant is barred from recovery if the claimant’s
               contributory fault is greater than the fault of all persons whose

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 8 of 12
               fault proximately contributed to the claimant’s damages.” Ind.
               Code § 34-51-2-6. For purposes of comparative fault, the term
               “fault” includes “any act or omission that is negligent, willful,
               wanton, reckless, or intentional toward the person or property of
               others. The term also includes unreasonable assumption of risk
               not constituting an enforceable express consent, incurred risk,
               and unreasonable failure to avoid an injury or to mitigate
               damages.” Ind. Code § 34-6-2-45(b) . . . Thus, one’s fault can
               include an act or omission occurring either before or after the
               fault of another.


       Hopper v. Carey, 716 N.E.2d 566, 575 (Ind. Ct. App. 1999), trans. denied

       (emphasis omitted). “The Comparative Fault Act entrusts the allocation of

       fault to the sound judgment of the fact-finder.” Paragon Family Restaurant v.

       Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). However, “at some point the

       apportionment of fault may become a question of law for the court. But that

       point is reached only when there is no dispute in the evidence and the factfinder

       is able to come to only one logical conclusion.” Robbins v. McCarthy, 581

       N.E.2d 929, 934 (Ind. Ct. App. 1991), reh’g denied, trans. denied.


[12]   While there are multiple versions of what occurred in the days leading up to

       Troy’s fall, there is no dispute regarding what happened between the time Troy

       inspected the scaffolding and the time he fell to his death. The trial court

       found:

               Between the hours of six o’clock and seven o’clock a.m. on the
               morning of December 4, 2012, Troy Allen Jabaay, employed as a
               foreman by Safway, inspected the west scaffold located at the
               Unit 15B Mill that had been built two days earlier by Safway and
               initialed an inspection tag indicating that it was safe for use for

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 9 of 12
               all contractors during the day shift. Later that day, Troy climbed
               the west scaffold and grabbed a horizontal scaffold bar. The
               scaffold bar became dislodged and caused him to tragically fall
               some thirty feet to his death.


                                                     *****


               None of the parties have come forward with any evidence that
               any of the defendants did anything to negligently modify the
               scaffolding on the west scaffold after Troy’s inspection, which did
               not identify any loose handrails and determined that the scaffold
               was safe for use, that would establish the existence of a genuine
               issue of material fact sufficient to preclude summary judgment.


       (Appellant’s App. Vol. II at 37, 42.)


[13]   The Jabaay Estate argues the trial court’s focus on the time between Troy’s

       inspection and Troy’s fall is an error, and that we should instead consider their

       arguments regarding alleged duties undertaken by NIPSCO and BMW either

       gratuitously or by contract. They also argue there are genuine issues of material

       fact whether Troy adhered to certain safety regulations and whether those

       regulations were applicable to the situation. None of that is of consequence, as

       Troy’s actions caused his death.


[14]   When Troy inspected the scaffold between 6:00 a.m. and 7:00 a.m. on

       December 4, 2012, he initialed the yellow safety tag, indicating he had

       inspected the scaffold. (See BMW Conf. App. Vol. II at 84) (testimony

       regarding inspection process). Troy was a Competent Person for Safway,

       which required him to complete training and pass a certification exam.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 10 of 12
       Through this designation, he had “a responsibility to make decisions about

       what is safe and not safe with respect to scaffolds[.]” (Appellant’s App. Vol. IV

       at 97-8.) Simply put, as a Competent Person, Troy himself had a duty to ensure

       the scaffolds were safe that day.


[15]   There is no evidence anyone accessed the scaffolding between Troy’s inspection

       and Troy’s fall. Therefore, the only explanation for the unsafe condition which

       caused Troy’s death, the loose bar on the West Scaffold, is Troy’s negligent or

       incomplete safety inspection. We need not examine the actions of other parties

       prior to that inspection, because even if their actions were negligent, those

       negligent actions were not the proximate cause of Troy’s death, which occurred

       after Troy declared the scaffold safe for use. See McKinney v. Public Service Co. of

       Indiana, Inc., 597 N.E.2d 1001, 1005 (Ind. Ct. App. 1992) (“A negligent act or

       omission is the proximate cause of an injury if the injury is a natural and

       probable consequence which, in light of the circumstances, should reasonably

       have been foreseen or anticipated, regardless of whether the earlier negligence

       concurs with other proximate causes of injury[.]”), reh’g denied, trans. denied. As

       the undisputed evidence negates the possibility that any other defendant could

       have been the proximate cause of Troy’s injury, the Jabaay Estate cannot be

       successful in its negligence action.



                                               Conclusion



       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 11 of 12
[16]   As Troy’s negligence in inspecting the scaffold was the proximate cause of his

       death, the trial court did not err as a matter of law when it granted summary

       judgment in favor of NIPSCO and BMW. Accordingly, we affirm.


[17]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017   Page 12 of 12
