INDIANA DEPARTMENT OF TRANSPORTATION CHARGED WITH DUTY FOLLOWING THE ELECTROCUTION OF INDOT SUBCONTRACTOR
In a recent not for publication memorandum decision* by the Indiana Court of Appeals, the court reversed the granting of a motion for summary judgment in favor of the Indiana Department of Transportation ("INDOT"), finding that INDOT owed a duty of care to a father and son who were subcontracted to complete some paving work for INDOT. Lorraine Bunn, as Personal Representative of the Estate of Robert P. Bunn, Deceased, and Robert L. Bunn vs. Indiana Department of Transportation, No. 50A03-0810-CV-504 (Indiana Ct. App. 2009).
While completing the work, the son was electorcuted after a dump truck made contact with overhanging power lines. The father was in close proximity, watching as it happened.
The only issue for review was whether INDOT owed a duty of care to the injured parties? INDOT argued they owed no duty to the father and son because they were independent contractors. The general rule under Indiana law is that a contractee is not liable to independent contractors. Bagley vs. Insight Commc's Co., 658 N.E.2d 584, 586 (Ind. 1995). However, the contractee will be liable if one or more of five exceptions apply; the second of these five exceptions is where the principal is by law or contract charged with performing the specific duty. Id.
In the case at hand, the plaintiffs successfully argued the second exception applies. They argued that Indiana Code section 8-23-2-4.1(A) held INDOT responsible for "the construction, reconstruction, improvement, maintenance, and repair of state highways. . . ." The plaintiffs also relied on the contract for the project and its language. It stated INDOT had the power to determine what safeguards were necessary to protect the health of the workers on the project and it also retained the power to determine if the project was in compliance with OSHA standards.
In reversing and remanding the trial court's motion for summary judgment, the court held plaintiffs arguments satisfied the second exception to the general rule and ultimately INDOT owed the father and son a duty of care.
*Note - Not for publication Memorandum decisions by the Indiana Court of Appeals are not to be cited or treated as precedent case law except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
