MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 31 2017, 8:54 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven W. Etzler Francis A. Veltri Malloy Etzler & Lawhead, P.C. Travelers Staff Counsel Indiana Highland, Indiana Merrillville, Indiana Paul T. Belch Travelers Staff Counsel Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Benjamin Odneal, January 31, 2017 Appellant-Plaintiff, Court of Appeals Case No. 45A03-1609-CT-2037 v. Appeal from the Lake Superior Court Circle Medical Management, The Honorable William E. Davis, Appellee-Defendant Judge Trial Court Cause No. 45D05-1408-CT-155
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 1 of 8 [1] Benjamin Odneal appeals the trial court’s grant of summary judgment in favor
of Circle Medical Management (Circle Medical). He argues that the trial court
incorrectly determined that Circle Medical did not owe him a duty. Finding
that summary judgment was appropriately granted, we affirm.
Facts [2] Odneal was an employee of Stericycle, Inc. (Stericycle), a medical waste
processing facility. Stericycle did business with Circle Medical, a dialysis
treatment center. In providing dialysis treatment, Circle Medical used and
needed to dispose of spent bloodlines, needles, syringes, and other medical
waste. Accordingly, Circle Medical entered into a Service Agreement with
Stericycle’s predecessor1 in May 2009. Stericycle would provide Circle Medical
with containers, Circle Medical would fill the containers with medical waste,
and Stericycle would transport those containers to its disposal facility.
[3] Pursuant to the Service Agreement, these containers were 96-gallon carts. The
Service Agreement provided that “[t]o ensure compliance with packaging
requirements and the safety of Service Provider’s employees, Service Provider
reserves the right to charge a minimum overweight penalty of $0.65 per lb.
when weights exceed 40 lbs. per container.” Appellant’s App. p. 195.
Stericycle provided an information sheet to Circle Medical that said that the
1 For ease of reading, we will refer to this predecessor simply as Stericycle.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 2 of 8 maximum weight of the containers when full of waste should be no more than
150 pounds. Appellant’s App. 222.
[4] On August 30, 2012, Stericycle retrieved five waste containers from Circle
Medical, each of which weighed more than 150 pounds. Once the containers
were transported to Stericycle’s facility, Odneal started to pick up one of the
containers but realized that it was too heavy for him to lift. He asked a
coworker for help. As the two began picking the container up, the container
went off balance and Odneal was pulled into a railing. He suffered a lower
back injury, which required two lumbar surgeries and a spinal implant to
rectify.
[5] On August 15, 2014, Odneal filed a complaint against Circle Medical, claiming
that Circle Medical owed him a duty to avoid overfilling its waste containers
and that its breach of that duty caused his injury. On May 31, 2016, Circle
Medical filed a motion for summary judgment along with designated evidence,
to which Odneal responded. After a hearing, the trial court entered summary
judgment in Circle Medical’s favor on August 15, 2016. Odneal now appeals.
Discussion and Decision [6] Our standard of review of a trial court’s grant of summary judgment is well
settled:
Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When we review a grant of Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 3 of 8 summary judgment, our standard of review is the same as that of the trial court. We consider only those facts that the parties designated to the trial court. The Court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party.
A trial court’s order on summary judgment is cloaked with a presumption of validity; the party appealing from the grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. We may affirm the grant of summary judgment upon any basis argued by the parties and supported by the record.
Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007) (internal citations
omitted). To prove negligence, Odneal is required to show, among other
things, that Circle Medical owed him a duty. Mishler v. State, 730 N.E.2d 229,
231 (Ind. Ct. App. 2000). Absent a duty, there can be no breach of duty and no
recovery in negligence. Id. Whether a duty exists is generally a question of
law. Id.
[7] We find our decision in Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644 (Ind. Ct.
App. 1998), to be instructive. In that case, the plaintiff worked for a
distribution company, which contracted with trucking companies to send goods
to their final destinations. Id. at 646. One day, the trucking company returned
a trailer to the distribution company, and as the plaintiff unloaded and cleaned
it, she slipped on a lid that had fallen on the ground. Id. She sued the trucking
company for negligence, but the trial court granted summary judgment against
her. Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 4 of 8 [8] In affirming the trial court, we recognized that while employers have a general
duty to use reasonable care to provide their own employees with a safe work
environment, employers do not owe such a general duty to the employees of
other companies. Id. at 647. We noted that after the trucking company
returned the trailer,
it was the sole responsibility of [the distributor] to open the sealed trailer, to unload any returned merchandise, and to clean the trailer of the empty totes, lids, and pallets. [The trucking company] had no discretion to inspect the condition of the interior of the trailers upon arrival at [the distributor] and similarly had no control over how [the distributor]’s employees carried out their responsibility to unload and clean the trailers.
Id. After also finding that the accident was not foreseeable and that public
policy did not support finding a duty, we affirmed. Id. at 648.
[9] In that case, however, we noted the following:
We find nothing in the record that indicates that [the trucking company] was required by [the distributor] to strap down the totes and lids or that [the trucking company] otherwise assumed a duty to strap down the totes and lids. Even if we were to conclude that [the trucking company] was required to take such precautions or voluntarily undertook them, there is no evidence that such action was for the benefit or safety of [the distributor]’s employees.
Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 31 2017, 8:54 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven W. Etzler Francis A. Veltri Malloy Etzler & Lawhead, P.C. Travelers Staff Counsel Indiana Highland, Indiana Merrillville, Indiana Paul T. Belch Travelers Staff Counsel Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Benjamin Odneal, January 31, 2017 Appellant-Plaintiff, Court of Appeals Case No. 45A03-1609-CT-2037 v. Appeal from the Lake Superior Court Circle Medical Management, The Honorable William E. Davis, Appellee-Defendant Judge Trial Court Cause No. 45D05-1408-CT-155
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 1 of 8 [1] Benjamin Odneal appeals the trial court’s grant of summary judgment in favor
of Circle Medical Management (Circle Medical). He argues that the trial court
incorrectly determined that Circle Medical did not owe him a duty. Finding
that summary judgment was appropriately granted, we affirm.
Facts [2] Odneal was an employee of Stericycle, Inc. (Stericycle), a medical waste
processing facility. Stericycle did business with Circle Medical, a dialysis
treatment center. In providing dialysis treatment, Circle Medical used and
needed to dispose of spent bloodlines, needles, syringes, and other medical
waste. Accordingly, Circle Medical entered into a Service Agreement with
Stericycle’s predecessor1 in May 2009. Stericycle would provide Circle Medical
with containers, Circle Medical would fill the containers with medical waste,
and Stericycle would transport those containers to its disposal facility.
[3] Pursuant to the Service Agreement, these containers were 96-gallon carts. The
Service Agreement provided that “[t]o ensure compliance with packaging
requirements and the safety of Service Provider’s employees, Service Provider
reserves the right to charge a minimum overweight penalty of $0.65 per lb.
when weights exceed 40 lbs. per container.” Appellant’s App. p. 195.
Stericycle provided an information sheet to Circle Medical that said that the
1 For ease of reading, we will refer to this predecessor simply as Stericycle.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 2 of 8 maximum weight of the containers when full of waste should be no more than
150 pounds. Appellant’s App. 222.
[4] On August 30, 2012, Stericycle retrieved five waste containers from Circle
Medical, each of which weighed more than 150 pounds. Once the containers
were transported to Stericycle’s facility, Odneal started to pick up one of the
containers but realized that it was too heavy for him to lift. He asked a
coworker for help. As the two began picking the container up, the container
went off balance and Odneal was pulled into a railing. He suffered a lower
back injury, which required two lumbar surgeries and a spinal implant to
rectify.
[5] On August 15, 2014, Odneal filed a complaint against Circle Medical, claiming
that Circle Medical owed him a duty to avoid overfilling its waste containers
and that its breach of that duty caused his injury. On May 31, 2016, Circle
Medical filed a motion for summary judgment along with designated evidence,
to which Odneal responded. After a hearing, the trial court entered summary
judgment in Circle Medical’s favor on August 15, 2016. Odneal now appeals.
Discussion and Decision [6] Our standard of review of a trial court’s grant of summary judgment is well
settled:
Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When we review a grant of Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 3 of 8 summary judgment, our standard of review is the same as that of the trial court. We consider only those facts that the parties designated to the trial court. The Court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party.
A trial court’s order on summary judgment is cloaked with a presumption of validity; the party appealing from the grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. We may affirm the grant of summary judgment upon any basis argued by the parties and supported by the record.
Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007) (internal citations
omitted). To prove negligence, Odneal is required to show, among other
things, that Circle Medical owed him a duty. Mishler v. State, 730 N.E.2d 229,
231 (Ind. Ct. App. 2000). Absent a duty, there can be no breach of duty and no
recovery in negligence. Id. Whether a duty exists is generally a question of
law. Id.
[7] We find our decision in Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644 (Ind. Ct.
App. 1998), to be instructive. In that case, the plaintiff worked for a
distribution company, which contracted with trucking companies to send goods
to their final destinations. Id. at 646. One day, the trucking company returned
a trailer to the distribution company, and as the plaintiff unloaded and cleaned
it, she slipped on a lid that had fallen on the ground. Id. She sued the trucking
company for negligence, but the trial court granted summary judgment against
her. Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 4 of 8 [8] In affirming the trial court, we recognized that while employers have a general
duty to use reasonable care to provide their own employees with a safe work
environment, employers do not owe such a general duty to the employees of
other companies. Id. at 647. We noted that after the trucking company
returned the trailer,
it was the sole responsibility of [the distributor] to open the sealed trailer, to unload any returned merchandise, and to clean the trailer of the empty totes, lids, and pallets. [The trucking company] had no discretion to inspect the condition of the interior of the trailers upon arrival at [the distributor] and similarly had no control over how [the distributor]’s employees carried out their responsibility to unload and clean the trailers.
Id. After also finding that the accident was not foreseeable and that public
policy did not support finding a duty, we affirmed. Id. at 648.
[9] In that case, however, we noted the following:
We find nothing in the record that indicates that [the trucking company] was required by [the distributor] to strap down the totes and lids or that [the trucking company] otherwise assumed a duty to strap down the totes and lids. Even if we were to conclude that [the trucking company] was required to take such precautions or voluntarily undertook them, there is no evidence that such action was for the benefit or safety of [the distributor]’s employees.
Id. In the present case, Odneal focuses on the language in the Service
Agreement that provided Stericycle with the right to charge an “overweight
penalty of $0.65 per lb. when weights exceed 40 lbs. per container,” the purpose
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 5 of 8 of which was “[t]o ensure compliance with packaging requirements and the
safety of Service Provider’s employees . . . .” Appellant’s App. p. 195. Odneal
points out that a duty of care, the breach of which will support a negligence
action, may arise contractually. Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212,
1218 (Ind. Ct. App. 1983). In determining whether a duty exists, this Court will
give effect to the intent of the parties as reflected by the language of the
document. Id. Odneal argues that this provision in the contract evinces Circle
Medical’s intent to assume a duty to Stericycle’s employees to avoid overfilling
the containers.
[10] Odneal spends much of his brief attempting to prove that this provision was not
intended to compensate Stericycle for the added costs of heavier containers but
was rather intended solely to penalize Circle Medical for overheavy shipments.
We cannot agree with this argument, as the two concepts are economically
indistinguishable. It is impossible to say that the provision does one or the
other; it clearly does both. On the one hand, by requiring extra payment for
containers weighing over forty pounds, it discourages Circle Medical from
filling its containers with more than forty pounds of waste. On the other hand,
it also makes clear that Circle Medical is perfectly within its rights to fill
containers with more than forty pounds of waste, so long as Circle Medical is
willing to pay the extra charge.
[11] We find the existence of added compensation dispositive. If the Service
Agreement had said that Circle Medical, for the safety of Stericycle’s
employees, agreed to not fill the containers beyond a certain weight, then Circle
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 6 of 8 Medical would have assumed a duty not to do so. But the Service Agreement
instead set a price for added weight—in such a circumstance, Circle Medical’s
only duty regarding the weight of the containers was to pay the added cost of
any containers weighing more than forty pounds. Other than the existence of
this pricing mechanism, we find the present case to be on all fours with
Ebbinghouse.
[12] Odneal also argues that he was owed a duty as a third-party beneficiary of the
Service Agreement between Circle Medical and Stericycle. A third-party
beneficiary contract exists when (1) the parties intend to benefit the third party,
(2) the contract imposes a duty on one of the parties in favor of the third party,
and (3) the performance of the terms of the contract renders a direct benefit to
the third party intended by the parties to the contract. Gilliana v. Paniaguas, 708
N.E.2d 895, 898 (Ind. Ct. App. 1999). A party may use his status as a third-
party beneficiary as the basis of a duty in a negligence context. St. Paul Fire &
Marine Ins. Co. v. Pearson Const. Co., 547 N.E.2d 853, 857 (Ind. Ct. App. 1989).
[13] We find that Odneal is not a third-party beneficiary of the Service Agreement
because any benefits that accrue to him do so remotely, not directly. Circle
Medical and Stericycle did not contract together with the primary goal of
providing safety to Odneal; they contracted together with the primary goal of
exchanging a service for compensation. Although there is arguably some
benefit that Odneal receives from the contract—perhaps the financial
disincentive will encourage Circle Medical to pack the containers lightly, which
in turn will make Odneal’s job safer and easier—this is far from the type of
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 7 of 8 direct benefit required to create a third-party beneficiary contract. Accordingly,
this argument is unavailing.
[14] In sum, Circle Medical did not agree to refrain from filling containers with
more than forty pounds of material, it agreed to pay an extra fee for doing so.
Therefore, as a matter of law, Circle Medical did not owe Odneal a duty to not
fill the containers with overheavy contents. Nor was Odneal a third-party
beneficiary of the Service Agreement. Because Circle Medical did not owe
Odneal any duty, it cannot be held liable for negligence and summary judgment
was appropriately granted.
[15] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 8 of 8