For the second time this year, an Indiana appellate court has expanded the scope of asbestos liability in the Hoosier state. Hot on the heels of the Indiana Supreme Court’s invalidation of the state’s Product Liability Act statute of repose in asbestos cases in Myers v. Crouse-Hinds Division of Cooper Industries, Inc., 53 N.E.3d 1160 (Ind. 2016), the Indiana Court of Appeals has issued another opinion arising out of the Larry Myers case, this time bearing on premises liability and the scope of the general rule of non-liability for the negligence of independent contractors.
In a 3-0 opinion issued September 28, 2016, the Indiana Court of Appeals reversed summary judgment for two premises defendants in Myers v. Bremen Casting, Inc., No. 49A04-1503-MI-113 (Ind. Ct. App. Sept. 28, 2016). In doing so, the court significantly narrowed the scope of the general rule of non-liability for the negligence of independent contractors first applied to asbestos claims in Roberts v. PSI Energy, Inc., 829 N.E.2d 943 (Ind. 2005). This new decision essentially limits the defense to situations where the plaintiff’s own work caused his asbestos exposure.
The plaintiff in Roberts was an ACandS insulator who sued PSI Energy, Inc. under theories of vicarious liability and premises liability for injuries caused by asbestos exposure on PSI’s premises. He argued PSI was liable for the negligence of its independent contractors under the non-delegable duty doctrine, which provides five exceptions to the general rule against non-liability for the negligence of independent contractors, including: (1) where the contract requires the performance of intrinsically dangerous work; and (2) where the act to be performed will probably cause injury to others unless due precaution is taken.
The Roberts court had rejected the plaintiff’s argument, finding the non-delegable duty doctrine did not apply because asbestos was not “intrinsically dangerous” (since there was evidence proper precautions could have minimized Mr. Roberts’s risk of exposure), and rejecting the plaintiff’s “due precaution” argument because Mr. Roberts, as an insulator, was injured by the very condition he was employed to address. Thus, the facts did not establish PSI created a risk greater than the routine and predictable hazards generally associated with Mr. Roberts’s occupation.
The defendants in Myers argued the facts were analogous to Roberts. Nonetheless, the Myers court distinguished Roberts based on the nature of the two plaintiffs’ respective work. Because Mr. Roberts’s job was to install and maintain asbestos insulation, he was injured by the very condition he was employed to address; the risk of him being exposed to asbestos was always the same, regardless of the location of his work. Therefore, PSI could not be held liable for failing to take different precautions than those generally taken by asbestos insulators.
In contrast, Mr. Myers’s employer was hired to perform electrical work, not asbestos work. The evidence showed Mr. Myers typically worked with electrical components and equipment, as opposed to asbestos insulation. Moreover, there was insufficient evidence to indicate Mr. Myers’s risk of being exposed to asbestos was common among electricians or across workplaces, and there was no evidence he was injured by the very condition he was employed to address. Thus, the court rejected the defendants’ argument that the asbestos work being conducted on the premises did not create a peculiar risk of harm to those not hired to perform asbestos work, such as Mr. Myers, and held the due precaution exception to the general rule of non-liability was available to Mr. Myers.
While Roberts remains good law in Indiana, the Myers court has significantly limited its reach by narrowing the scope of the general rule of non-liability for the negligence of independent contractors in asbestos cases to situations where the plaintiff’s only asbestos exposures on the premises were caused by a condition he/she was employed to address, and situations where the plaintiff’s potential for such exposure was always the same, regardless of the location of his/her work, such that the premises owner cannot be held liable for failing to take different precautions other than those generally taken by those in the plaintiff’s trade.
This decision will have a significant impact on premises defendants in both Indiana and Illinois asbestos litigation, as Illinois premises defendants who have invariably sought application of Indiana substantive law when appropriate under the facts, will now have to balance Indiana’s expansion of asbestos premises liability with its more defendant-friendly fault apportionment scheme.