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Merritt v. Bethlehem Steel Corp.

decided: May 22, 1989.

ROGER CURTIS MERRITT, PLAINTIFF-APPELLANT,
v.
BETHLEHEM STEEL CORPORATION, A FOREIGN CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF INDIANA, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H84-0602 -- James T. Moody, Judge.

Bauer, Chief Judge, Easterbrook, Circuit Judge, and Grant,*fn* Senior District Judge.

Author: Grant

GRANT, Senior District Judge

Roger Merritt, an employee of an independent contractor, brought this diversity action against Bethlehem Steel Corporation, as the landowner/contractee, to recover for injuries he sustained while working at Bethlehem's plant in Bums Harbor, Indiana. The district court's grant of summary judgment for Bethlehem forms the basis of the appeal.

FACTS

Bethlehem Steel owns and operates a steel manufacturing plant in Bums Harbor, Indiana, which requires the use of high voltage electricity. As part of its integrated operation, Bethlehem maintains on its property the lines, towers and insulators necessary to supply that electricity.

On March 27, 1984, Bethlehem contracted with Petronol Company, Inc., advertised professionals in cleaning electrical equipment while the lines remain electrically charged, to clean and refurbish various electric towers and insulators at the Burns Harbor plant. The contract specifically provided that Petronol was "to supply all labor, equipment and material to clean the . . . energized lines." It is undisputed that under the terms of the contract, Petronol was an independent contractor.

Roger Merritt was employed by Petronol as part of the cleaning crew at the Burns Harbor plant when he fell and touched an energized line. As a result of both the electrical shock and his fall from the tower on which he was working, Merritt sustained serious personal injuries. It is undisputed that Merritt knew the lines were energized when he undertook the job, that his safety belt was not attached, and that there were signs posted in the area warning "Danger 13,800 Volts".

While Merritt acknowledges that a landowner/contractee will generally not be liable for injuries to an employee of an independent contractor resulting from the contractor's negligence, Johns v. New York Blower Co., 442 N.E.2d 382, 384 (Ind.App. 1982); Pee v. Northern Indiana Public Service Co., 433 N.E.2d 44, 46 (Ind.App. 1982); Denneau v. Indiana & Michigan Electric Co., 150 Ind. App. 615, 277 N.E.2d 8, 12 (1971), he contends that it is Bethlehem's own negligence and not that of the contractor which forms the basis of liability in the present case. See, i.e., Ruhs v. Pacific Power & Light, 671 F.2d 1268, 1272 (10th Cir. 1982). Merritt's claim is premised on the presumption that Bethlehem had the ability and the duty to alternately deenergize the electrical lines nearest the work activity to protect Petronol employees from injury, and that it failed to meet that duty. Merritt proposes three sources for such a duty: (1) the common law, (2) Bethlehem's contract with Petronol, and (3) various federal and state safety regulations.

In granting Bethlehem's motion for summary judgment, the district court found that neither the common law nor the contract between Bethlehem and Petronol imposed upon Bethlehem any duty to deenergize the lines. While the court found that the safety regulations promulgated under the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., and the Indiana Occupational Safety and Health Act (IOSHA), I.C. 22-8-1.1-1 et seq., specifically the National Electrical Safety Code and National Electrical Code, applied to Bethlehem with respect to Merritt, Teal v. E. I. DuPont de Nemours and Co., 728 F.2d 799, 804-05 (6th Cir. 1984); Marshall v. Knutson Construction Co., 566 F.2d 596, 599 (8th Cir. 1977), the regulations could not be used to expand or otherwise affect Bethlehem's common law duties or liabilities under a negligence per se theory, or as evidence of an expanded standard of care. 29 U.S.C. § 653(b)(4); I.C. 22-8-1.1-48.3; Hebel v. Conrail, Inc., 475 N.E.2d 652, 658 (Ind. 1985). The court concluded that "even as evidence of negligence, no jury question would be presented [as] Bethlehem's duty of care was adequately met by warning Merritt that the lines were energized." For the following reasons, we now affirm the judgment of the district court.

BETHLEHEM'S COMMON LAW DUTY

Under the common law, Bethlehem owes a duty to its business invitees to keep and maintain the job site in a reasonably safe condition. Bogard v. Mac's Restaurant, Inc., 530 N.E.2d 776, 777 (Ind.App. 1988); Wingett v. Teledyne Industries, Inc., 479 N.E.2d 51, 54 (Ind. 1985); Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind.App. 1983). Merritt maintains that where the contracted work involves a "dangerous instrumentality" such as electricity and creates a "peculiar unreasonable risk of harm to others," that duty becomes non-delegable and imposes upon a landowner/contractee the responsibility for taking reasonably necessary steps to prevent the harm. Restatement (Second) of Torts, § 413, pp. 384-85 (1965); Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1010 (7th Cir. 1982); Ruhs, 671 F.2d at 1272; Curl v. Bethlehem Steel Corp., 181 Ind. App. 132, 390 N.E.2d 709, 711 (1979); Denneau, 277 N.E.2d at 12. He concludes that such steps include deenergizing the power lines.

The district court found, however, that Bethlehem's duty with respect to Petronol's employees was only coextensive with the purpose and intent of the invitation, Pucalik v. Holiday Inns, Inc., 777 F.2d 359, 362 (7th Cir. 1985); Perry v. Northern Indiana Public Service Co., 433 N.E.2d 44, 49 (Ind.App. 1982); Hoosier Cardinal Corp. v. Brizius, 136 Ind.App. 363, 199 N.E.2d 481, 487 (1964), and that, given the nature of the invitation which required that the work be performed while the lines remained energized, Bethlehem's only duty was to warn of latent defects in or on the premises. Louisville Cement Co. v. Mumaw, 448 N.E.2d 1219, 1221 (Ind.App. 1983). Assuming that, the dangers of electricity could be considered "latent, the district court found that Bethlehem had adequately met its duty by posting signs warning of that danger. We concur.

[The] duty of the inviter, and his corresponding liability for breach of duty, depends upon the circumstances surrounding the invitation, including the character of the premises the invitee is invited to use, the nature of the invitation, the conditions under which it is extended, and the use of the premises to be made by the invitee. The basis of liability of the inviter for failing to render the premises reasonably safe ...


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