Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 82 C 553-JAMES T. MOODY, Judge.
Before BAUER and EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
The defendant, Koppers Co., Inc., appeals a jury verdict awarding plaintiffs Vissarion and Koula Katapodis damages for an injury suffered by Vissarion Katapodis while he was working on a construction project for which defendant was the general contractor. Defendant claims that it is not liable to plaintiffs because Vissarion Katapodis was employed by a subcontractor and was therefore not in an employer-employee relationship with defendant. Defendant also cites errors concerning the jury instructions, the admission of certain evidence, and allegedly improper statements made by plaintiffs' counsel during closing argument. We affirm the judgment.
The facts in this case are quite lengthy, but may be greatly condensed for the purposes of this appeal to an outline of the various employment relationships existing at the construction project where plaintiff was injured. The project involved the construction of a blast furnace for Inland Steel Company on its property in East Chicago, Indiana. Defendant Koppers Company, Inc. (the Company), was hired by Inland Steel as the general contractor for the project. Koppers hired several subcontractors to complete the project, among them Avalotis Painting Company, which employed plaintiffs as a painter.
During the course of the project, plaintiff was engaged to sandblast and paint a pipe connecting a stove at the blast furnace with another pipe called a "coal blast main leader." The pipe was surrounded by "pipe and clamp" scaffolding rising some 125 feet from the ground. The scaffolding had been erected by another subcontractor, M & O Insulation Company, which had been hired to install insulation in the pipe. Plaintiff had been using the scaffolding erected by M & O while he painted the pipe and was injured when he stepped onto some boards which were not fastened to the scaffolding and fell approximately 35 feet.
Plaintiff sued the Company for his personal injuries and his wife sued for loss of consortium on a negligence theory. After a jury trial, plaintiff was awarded $300,000 and his wife was awarded $10,000. The Company now appeals, arguing that the trial judge improperly instructed the jury that it could find the Company liable under Indiana's Construction Industry Safety Code. The Company also alleges that this jury instruction conflicted with further instructions given to the jury, that the amount of the contract between Inland Steel and the Company was improperly admitted into evidence, and that plaintiff's counsel made improper statements during closing argument referring to the disparity between the financial worth of the Company and plaintiff.
The Company first argues that jury instruction fifteen was improper. This instruction stated, in relevant part, that:
As a prime contractor under the Indiana [Construction] Industry Safety Code the Koppers Company, Inc. had a legal duty to ensure that there was compliance with the provisions of the Code on the project at Inland Steel .... The Koppers Company, Inc. could not avoid that duty by delegating responsibility to its subcontractor, M & O Insulation, Inc. You are instructed that if you find from a preponderance of the evidence that M & O Insulation, Inc., by its employees, violated these regulations, then Koppers Company, Inc. is jointly responsible for M & O Insulation, Inc.'s failure to comply with the Code.
If you find that the Koppers Company, Inc. failed to see that these code provisions on scaffolding were complied with then the Koppers Company, Inc. was guilty of negligence unless you further find that there were circumstances resulting from factors beyond the Koppers Company, Inc.'s control that made it impossible for the Koppers Company, Inc. to comply with these regulations.
The Company contends that this instruction misstates the law, arguing that absent the existence of a master-servant of employer-employee relationship between the Company and plaintiff, the provisions of Indiana's Construction Industry Safety Code are inapplicable and cannot be used to impose liability on the Company. The unambiguous language of the Safety Code and several cases interpreting the Code, however, support the proprietary of the instruction.
In Jones v. Indiana Power & Light Co. (Ipalco), 158 Ind. App. 676, 304 N.E.2d 337 (1973), the Court of Appeals of Indiana for the Second District held that an owner-contractee (Ipalco) was not liable under the Code for an injury to the employee of an independent contractor. Ipalco had contracted directly with several contractors to engage in the construction of a power plant on its property. One of these contractors, Combustion Engineering, Inc., was hired to supply and install steam generating equipment. During the course of ...