Julie A. Jabaay v. BMW Constructors, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 14, 2017
• Docket: 45A05-1608-CT-1768
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 14 2017, 8:35 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR Robert J. Gabrielse APPELLEE/CROSS-APPELLANT, Law Office of Robert J. Gabrielse BMW CONSTRUCTORS, INC. DeMotte, Indiana Anthony R. Jost Laura S. Reed F. Joseph Jaskowiak James O. Giffin Lauren K. Kroeger Riley Bennett Egloff LLP Hoeppner Wagner & Evans LLP Indianapolis, Indiana Merrillville, Indiana ATTORNEYS FOR APPELLEE/CROSS-APPELLEE, NORTHERN INDIANA PUBLIC SERVICE COMPANY Brent E. Inabnit Nicholas J. Derda Sopko, Nussbaum, Inabnit & Kaczmarek South Bend, Indiana ATTORNEY FOR APPELLEE/CROSS- APPELLEE, PEKRON CONSULTING, INC. Scott B. Cockrum Schererville, Indiana ATTORNEY FOR CROSS-APPELLEE, ATLANTIC PLANT SERVICES, LLC David W. Pera Buoscio, Pera & Kramer Merrillville, Indiana

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 1 of 12 ATTORNEYS FOR CROSS- APPELLEE, AREA SHEET METAL, INC. Daniel W. Glavin Kathleen M. Erickson Schererville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Julie A. Jabaay, Individually and June 14, 2017 as Personal Representative of the Court of Appeals Case No. Estate of Troy Allen Jabaay, 45A05-1608-CT-1768 Deceased, Appeal from the Lake Superior Appellant/Plaintiff, Court The Honorable John M. Sedia, v. Judge Trial Court Cause No. BMW Constructors, Inc., 45D01-1401-CT-34 Appellee/Cross-Appellant/Defendant,

Northern Indiana Public Service Company, Atlantic Plant Services, LLC, Area Sheet Metal, Inc. and Pekron Consulting, Inc., Appellees/Cross-Appellees/Defendants

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 2 of 12 [1] Julie A. Jabaay, individually and as Personal Representative of the Estate of

Troy Allen Jabaay (“Jabaay Estate”) 1 appeals the trial court’s grant of summary

judgment in favor of BMW Constructors, Inc. (“BMW”) and Northern Indiana

Public Service Company (“NIPSCO”). 2 We affirm. 3

Facts and Procedural History [2] On December 1, 2012, the NIPSCO Schahfer Generating Station (“Station”) in

Wheatfield, Indiana, was damaged following an explosion. Pursuant to

existing service agreements, NIPSCO contacted various independent

contractors to conduct repairs to the Station. Those independent contractors

included BMW and Safway Services, LLC (“Safway”).

[3] Safway was hired to construct and maintain scaffolds. On December 1 and

December 2, 2012, a crew from Safway erected scaffolding on the east (“East

Scaffold”), west (“West Scaffold”), and south sides of the Station. Troy Jabaay

(“Troy”) was a seasoned union carpenter and had been building scaffolding for

approximately fifteen years. Because of his extensive experience, Safway had

selected him to be a “Competent Person” in 1997. (Appellant’s App. Vol. V at

183.) Troy had to complete training and take a certification exam to become a

1 We deny the Jabaay Estate’s request for oral argument via order issued contemporaneous with this opinion. 2 The Jabaay Estate does not challenge the trial court’s grant of summary judgment in favor of Atlantic Plant Services, LLC (“Atlantic”); Area Sheet Metal, Inc. (“ASM”); and Pekron Consulting, Inc. (“Pekron”). 3 Because we affirm, we need not address BMW’s cross-appeal arguments regarding liability in the event we were to reverse the trial court’s decision.

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 3 of 12 Competent Person. As a Safway Competent Person, Troy had “a responsibility

to make decisions about what is safe and not safe with respect to scaffolds[.]”

(Appellant’s App. Vol. IV at 97-8.)

[4] Between 6:00 a.m. and 7:00 a.m. on December 4, 2012, Troy inspected the

West Scaffold at the Station as part of his duties. He initialed a yellow tag

attached to the West Scaffold indicating he had completed a safety inspection

and the West Scaffold was safe to use. After he completed these inspections,

Troy met with Dick Caldwell, the BMW day shift supervisor, who gave Troy a

note written by John Ceglarek, the BMW night shift supervisor, indicating work

done by BMW the night before. The hand-written note stated:

12-3-12 Nights

Dick We got the old duct out from top of channel. Started cleaning top flgs of channel box. Nipsco had us down for about 1 ½ hours when starting C mill up. We had to remove most of top scaffolding to get duct out. You will need to have it put back to work on exp. joint flg.

Have a good day John

P.S. Dick, we cut one up right on south west scaffold to get bottom out. We remove =HANDRAIL= on channel level. This needs to redone before using scaffolding.

(Appellant’s App. Vol. V at 156) (errors in original). Caldwell testified during a

deposition he let Troy Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 4 of 12 know that I wasn’t real sure, but I thought that if they did anything, it would have been to the east side because that’s the side the piece was going to come out. So I basically just apologized to Troy saying that I didn’t know what was going on with this note, and if he could make more sense of it with the note. Normally, I would just tell him, but me not understanding this note, I give it to him to see if he could - - you know if it made more sense to him.

(Appellant’s App. Vol. III at 75) (errors in original). Caldwell also testified

Troy told Caldwell that Troy would “take care of it.” (BMW App. Vol. II at

103.)

[5] Troy then alerted his crew and asked them to accompany him to the West

Scaffold. Troy climbed up the ladder to the West Scaffold. He was not wearing

a harness, which was required to maintain three points of contact for safety

reasons. Troy stepped off the ladder onto the handrail, which came loose at

one end. The handrail, with Troy on it, swung out from the end still affixed to

the West Scaffold. Troy fell thirty feet and died from his injuries.

[6] After the incident, the Indiana Occupational Safety and Health Administration

(“IOSHA”) investigated. IOSHA concluded Troy breached his duty as

Safway’s Competent Person to thoroughly and properly inspect the scaffolding,

and his failure to do so caused the incident that resulted in his death. Based on

their investigation, IOSHA cited Safway with a serious violation of 29 CFR §

1926.20(b)(2), indicating Safway

did not provide for frequent and regular inspections of the jobsite and equipment by a competent person[, specifically] . . . On or

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 5 of 12 about, December 04, 2012: The employers [sic] designated competent person, on the site, failed to identify existing and predictable hazards and/or take the necessary measures to alleviate the hazards of scaffolding.

(BMW App. Vol. III at 124.) Safway filed an appeal of IOSHA’s decision,

arguing it was not responsible for the incident because Troy’s actions

constituted employee misconduct. On February 17, 2014, IOSHA dismissed

the citation against Safway based on Safway’s defense of employee misconduct.

[7] On April 22, 2013, the Jabaay Estate filed a civil complaint against BMW

alleging negligence. BMW filed a response naming NIPSCO, Atlantic, Safway,

and Troy as liable non-parties. On August 22, 2013, the Jabaay Estate

amended its complaint to include NIPSCO and Atlantic. BMW filed a

response naming ASM and Pekron as additional non-parties. On October 21,

2014, the Jabaay Estate again amended its complaint to include ASM and

Pekron as non-parties. All defendants separately filed motions for summary

judgment between May 2015 and March 2016. On April 25, 2016, the Jabaay

Estate filed a reply to NIPSCO and BMW’s motions for summary judgment.

Additionally, on April 25, 2016, BMW filed a response to its co-defendants’

motions for summary judgment arguing all defendants were entitled to

summary judgment or none of them were, and preserving the right to name any

co-defendants dismissed from the action as liable non-parties.

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 6 of 12 [8] The trial court heard argument on the parties’ respective motions for summary

judgment on June 30, 2016, and July 13, 2016. On July 15, 2016, the trial court

granted summary judgment in favor of all defendants.

Discussion and Decision [9] Our standard of review for summary judgment is well-established:

We review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to “demonstrate the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non- movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 7 of 12 Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Therefore, for the trial court

to properly grant summary judgment, the movants must have “made a prima

facie showing that their designated evidence negated an element of the

nonmovants’ claims, and, in response, the nonmovants must have failed to

designate evidence to establish a genuine issue of material fact.” Cox v.

Mayerstein–Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014). We will

affirm a trial court’s decision on summary judgment if it is sustainable on any

theory or basis found in the evidentiary matter designated to the trial court.

United Rural Elec. Membership Corp. v. Ind. Mich. Power Co., 648 N.E.2d 1194,

1196 (Ind. Ct. App. 1995), trans. denied. Summary judgment is rarely

appropriate in negligence actions. McCormick v. State, 673 N.E.2d 829, 832

(Ind. Ct. App. 1996).

[10] The tort of negligence is composed of three elements: “(1) a duty owed by the

defendant to conform its conduct to a standard of care necessitated by its

relationship with the [plaintiff]; (2) a breach of that duty; and (3) an injury

proximately caused by the breach.” Id. at 837. Here, we find the issue of the

proximate cause of Troy’s injury to be dispositive.

[11] It is well-established:

The Comparative Fault Act created a modified comparative fault scheme in which “any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages....” Ind. Code § 34-51-2-5. In addition, “the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 8 of 12 fault proximately contributed to the claimant’s damages.” Ind. Code § 34-51-2-6. For purposes of comparative fault, the term “fault” includes “any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” Ind. Code § 34-6-2-45(b) . . . Thus, one’s fault can include an act or omission occurring either before or after the fault of another.

Hopper v. Carey, 716 N.E.2d 566, 575 (Ind. Ct. App. 1999), trans. denied

(emphasis omitted). “The Comparative Fault Act entrusts the allocation of

fault to the sound judgment of the fact-finder.” Paragon Family Restaurant v.

Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). However, “at some point the

apportionment of fault may become a question of law for the court. But that

point is reached only when there is no dispute in the evidence and the factfinder

is able to come to only one logical conclusion.” Robbins v. McCarthy, 581

N.E.2d 929, 934 (Ind. Ct. App. 1991), reh’g denied, trans. denied.

[12] While there are multiple versions of what occurred in the days leading up to

Troy’s fall, there is no dispute regarding what happened between the time Troy

inspected the scaffolding and the time he fell to his death. The trial court

found:

Between the hours of six o’clock and seven o’clock a.m. on the morning of December 4, 2012, Troy Allen Jabaay, employed as a foreman by Safway, inspected the west scaffold located at the Unit 15B Mill that had been built two days earlier by Safway and initialed an inspection tag indicating that it was safe for use for

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 9 of 12 all contractors during the day shift. Later that day, Troy climbed the west scaffold and grabbed a horizontal scaffold bar. The scaffold bar became dislodged and caused him to tragically fall some thirty feet to his death.

*****

None of the parties have come forward with any evidence that any of the defendants did anything to negligently modify the scaffolding on the west scaffold after Troy’s inspection, which did not identify any loose handrails and determined that the scaffold was safe for use, that would establish the existence of a genuine issue of material fact sufficient to preclude summary judgment.

(Appellant’s App. Vol. II at 37, 42.)

[13] The Jabaay Estate argues the trial court’s focus on the time between Troy’s

inspection and Troy’s fall is an error, and that we should instead consider their

arguments regarding alleged duties undertaken by NIPSCO and BMW either

gratuitously or by contract. They also argue there are genuine issues of material

fact whether Troy adhered to certain safety regulations and whether those

regulations were applicable to the situation. None of that is of consequence, as

Troy’s actions caused his death.

[14] When Troy inspected the scaffold between 6:00 a.m. and 7:00 a.m. on

December 4, 2012, he initialed the yellow safety tag, indicating he had

inspected the scaffold. (See BMW Conf. App. Vol. II at 84) (testimony

regarding inspection process). Troy was a Competent Person for Safway,

which required him to complete training and pass a certification exam.

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 10 of 12 Through this designation, he had “a responsibility to make decisions about

what is safe and not safe with respect to scaffolds[.]” (Appellant’s App. Vol. IV

at 97-8.) Simply put, as a Competent Person, Troy himself had a duty to ensure

the scaffolds were safe that day.

[15] There is no evidence anyone accessed the scaffolding between Troy’s inspection

and Troy’s fall. Therefore, the only explanation for the unsafe condition which

caused Troy’s death, the loose bar on the West Scaffold, is Troy’s negligent or

incomplete safety inspection. We need not examine the actions of other parties

prior to that inspection, because even if their actions were negligent, those

negligent actions were not the proximate cause of Troy’s death, which occurred

after Troy declared the scaffold safe for use. See McKinney v. Public Service Co. of

Indiana, Inc., 597 N.E.2d 1001, 1005 (Ind. Ct. App. 1992) (“A negligent act or

omission is the proximate cause of an injury if the injury is a natural and

probable consequence which, in light of the circumstances, should reasonably

have been foreseen or anticipated, regardless of whether the earlier negligence

concurs with other proximate causes of injury[.]”), reh’g denied, trans. denied. As

the undisputed evidence negates the possibility that any other defendant could

have been the proximate cause of Troy’s injury, the Jabaay Estate cannot be

successful in its negligence action.

Conclusion

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 11 of 12 [16] As Troy’s negligence in inspecting the scaffold was the proximate cause of his

death, the trial court did not err as a matter of law when it granted summary

judgment in favor of NIPSCO and BMW. Accordingly, we affirm.

[17] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 12 of 12