Non-Delegable Duties and Questions of Fact

The Indiana Court of Appeals recently decided Myers v. Bremen Casting, Inc., 2016 WL 5404318 (Ind. Ct. App., Sept. 28, 2016) regarding the liability of premises owners to the employees of independent contractors.  The plaintiff was an electrician who did work in premises owned by the defendants.  He claimed that he had contracted mesothelioma as a result of asbestos exposure in the course of his employment. The defendants sought to dispose of the claim on summary judgment and were successful in the trial court, but lost in the Court of Appeals.  

Under well-established Indiana law, a principal is ordinarily not liable for the acts of independent contractors.  However, Indiana also recognizes the “non-delegable duty doctrine,” which creates five exceptions to the general rule.  Myers alleged that defendants were liable to him under the “intrinsically dangerous” and “due precaution” exceptions to the general rule of non-liability.

The Myers court recognized that handling asbestos is not “intrinsically dangerous” because it can be done safely if proper protective measures are taken.  The court also recognized that a principal cannot be liable for an intrinsically dangerous activity if the plaintiff was injured by the very condition he was employed to address. However, the Court found that summary judgment for these defendants was inappropriate because Myers was employed as an electrician, not an asbestos worker, and the defendants had failed to show that asbestos was the very condition Myers was hired to address.

None of the holdings of this case are novel or particularly unexpected.  However, Indiana asbestos defendants have become accustomed to getting summary judgments based on limitations of their liability applicable as a matter of law.  It is becoming increasingly clear that, in the future, summary judgments will be harder to get and entitlement will depend more on the specific facts of the case.

Click here for the full test of the case and a refresher for all 5 of the non-delegable duties.

Read more about this article from The Court of Appeals of Indiana

Filed Under: Trial Practice

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