Pearson Education Inc. bought a new conveyor and related equipment from Rapistan Systems, now known as Siemens Dematic. Rapistan hired Indiana Industrial Systems (IIS) to install the conveyor. The installation required the construction of a temporary catwalk along an elevated section of the conveyor system. IIS built a catwalk consisting of sheets of bar grating placed on top of, but not attached to, supporting structural steel. The catwalk had gaps where there were no grating, planking, warning signs, chains, rails or footboards.
On March 1, 2000, Thomas Pelak, a senior project engineer for Rapistan, was on the catwalk at the center of the conveyor, troubleshooting its electronic controls. As he walked toward the front end of the conveyor, he fell through a two-to-three foot gap in the catwalk. He fell 15 feet to a concrete floor and was seriously injured.
Pelak sued Pearson and IIS. The Indiana trial court granted summary judgment for Pearson before trial. Pelak appealed arguing that Pearson, as the owner of the premises where he was injured, owed him a duty of care. Pearson asserted that it did not have a duty to provide a safe work environment for Pelak, an employee of an independent contractor, because it did not control IIS's work on the catwalk.
The Indiana Court of Appeals agreed with Pearson. Although Pelak argued that Pearson controlled IIS's work, testimony given at deposition by employees of Rapistan and Pearson indicated that Pearson's representatives were not aware that the temporary catwalk was being erected, and did not have any say over the way in which it was erected. The testimony also showed that during the installation of the temporary catwalk, IIS reported directly to a Rapistan employee, and that IIS never took orders from Pearson. "Indiana cases have uniformly held that where an instrumentality causing injury was in the control of an independent contractor, a duty will not be found where there is no evidence that the landowner maintained any control over the 'manner or means' by which the contractor engaged in its work," the court concluded.
|Pelak v. Indiana Industrial Services Inc., 831 N.E.2d 765 (Ind.App. 2005), Court of Appeals of Indiana, July 25, 2005.|