Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CT-2037 | January 31, 2017 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Steven W. Etzler

Malloy Etzler & Lawhead, P.C.

Highland, Indiana

ATTORNEYS FOR APPELLEE

Francis A. Veltri

Travelers Staff Counsel Indiana

Merrillville, Indiana

Paul T. Belch

Travelers Staff Counsel Indiana

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Benjamin Odneal,

Appellant-Plaintiff,

v.

Circle Medical Management,

Appellee-Defendant

January 31, 2017

Court of Appeals Case No.

45A03-1609-CT-2037

Appeal from the Lake Superior 

Court

The Honorable William E. Davis, 

Judge

Trial Court Cause No.

45D05-1408-CT-155

Baker, Judge.
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[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 predecessor1in 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.
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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 
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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.
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[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 
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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 
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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 thirdparty 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 
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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.