Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016 Page 1 of 21

ATTORNEYS FOR APPELLANTS

Linda George

Kathleen A. Farinas

Todd Barnes

Sarah Broderick

George & Farinas, LLP

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE 

INDIANA TRIAL LAWYERS ASSOCIATION

Jeffrey A. Hammond

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

BREMEN CASTING, INC.

Keith D. Mundrick

Susan E. Mehringer

Dennis F. Cantrell

Cantrell Strenski & Mehringer, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE 

MASTIC HOME EXTERIORS, INC.

John McCauley

Meaghan Klem Haller

Greg Neibarger

Bingham Greenebaum Doll, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Larry Myers and Loa Myers,

Appellants-Plaintiffs,

v.

Bremen Casting, Inc., and 

Mastic Home Exteriors, Inc.,

Appellees-Defendants.

September 28, 2016

Court of Appeals Case No.

49A04-1503-MI-113

Appeal from the Marion Superior 

Court

The Honorable Timothy W. Oakes, 

Judge

Trial Court Cause No.

49D02-1405-MI-14372

Robb, Judge.
Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016 Page 2 of 21

Case Summary and Issue

[1] Larry Myers spent the majority of his career working as an electrician in 

primarily industrial and commercial spaces, and during this time, Larry was 

exposed to asbestos. In February 2014, doctors diagnosed Larry with 

mesothelioma. Thereafter, Larry and his wife, Loa, filed a complaint alleging 

negligence against numerous product manufacturers and premises owners, 

including Bremen Casting, Inc. (“Bremen”) and Mastic Home Exteriors, Inc. 

(“Mastic”) (collectively, the “Defendants”).1 Specifically, the Myerses allege 

the Defendants are (1) vicariously liable for the acts of the employees of their 

independent contractors under the non-delegable duty doctrine, (2) vicariously 

liable for the acts of their own employees under the doctrine of respondeat 

superior, and (3) liable as premises owners. The Defendants each moved for 

summary judgment, and the trial court partially granted each motion. On the 

motion of all parties, the trial court’s orders were certified for interlocutory 

appeal and this court accepted jurisdiction and consolidated the appeals under a 

single cause number, designating the Myerses as Appellants/Cross-Appellees2

and the Defendants as Appellees/Cross-Appellants. 

[2] On appeal, the Myerses argue the trial court erred in granting summary 

judgment in favor of the Defendants on the Myerses’ vicarious liability claim 

 

1 Bremen and Mastic are premises owners.

2 The Indiana Trial Lawyers Association filed an amicus curiae brief aligned with the Myerses.
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under the non-delegable duty doctrine and premises liability claim; on crossappeal, the Defendants argue the trial court erred in denying their motions for 

summary judgment on the Myerses’ respondeat superior claim. Therefore, we 

consolidate and restate the issues before us as whether the trial court erred in 

granting in part and denying in part the Defendants’ motions for summary 

judgment. We conclude: (1) the trial court erred in granting the Defendants 

summary judgment on the Myerses’ vicarious liability claim pertaining to the 

negligence of independent contractors, (2) the trial court did not err in denying 

the Defendants summary judgment on the Myerses’ respondeat superior claim, 

and (3) the trial court erred in granting the Defendants summary judgment on 

the Myerses’ premises liability claim. We therefore affirm in part, reverse in 

part and remand for further proceedings on the Myerses’ claims.

Facts and Procedural History

[3] Between 1961 and 1980, Koontz-Wagner Electric (“Koontz”) employed Larry 

as an electrician. During this time, the Defendants hired Koontz as an 

independent contractor to perform electrical work at the Defendants’ facilities.

While working at the Defendants’ facilities, Larry worked alongside the 

Defendants’ employees as well as the employees of other independent 

contractors hired by the Defendants. As an electrician, Larry’s duties generally 

included installing and maintaining wire, conduit, light fixtures, transformers, 

junction boxes, and circuit breakers. In carrying out these duties, Larry 

occasionally worked near asbestos insulation and with products containing 
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asbestos. Larry was not warned of the dangers associated with asbestos 

exposure. In addition, he was neither trained nor hired to handle asbestos, and 

he did not wear any protective gear. Larry claims he was exposed to asbestos

by inhaling asbestos dust as a result of the Defendants’ failure to maintain their 

premises in reasonably safe condition, and as a result of the acts of the 

Defendants’ employees and the acts of other independent contractors’ 

employees.

3

 In the 1990s, Larry learned asbestos could be dangerous. In 2014, 

doctors diagnosed Larry with malignant pleural mesothelioma, citing Larry’s 

exposure to asbestos. 

[4] Following Larry’s diagnosis, the Myerses filed a complaint naming nearly forty 

defendants, including Bremen and Mastic. In the complaint, the Myerses

alleged the Defendants negligently hired their independent contractors and were

vicariously liable as principals and further liable as premises owners. As to the 

vicarious liability claims, the Myerses alleged the Defendants’ own employees 

and the employees of their independent contractors negligently exposed Larry 

to asbestos. The Myerses do not allege Larry’s employer, Koontz, is negligent, 

nor do they allege the Defendants negligently hired Koontz. To be clear, the 

Myerses only claim the Defendants’ employees and independent contractors 

negligently exposed Larry to asbestos. As to the premises liability claim, the 

 

3

In their Joint Brief of Appellees/Cross-Appellants (“Appellees’ Brief”), the Defendants note “Bremen does 

not concede that asbestos was on their premises. However, for the purposes of summary judgment and this 

appeal, none of the factual disputes identified by [Larry] are material or determinative to the outcome, and 

should be assumed to be as [Larry] alleges.” Appellees’ Brief at 9 n.3. For the purposes of this appeal, we 

therefore assume Larry was exposed to asbestos while working at the Defendants’ facilities.
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Myerses alleged the Defendants knew or should have known the dangers 

associated with asbestos, failed to warn Larry of the danger, and therefore failed 

to maintain the premises in a reasonably safe condition. 

[5] The Defendants then each moved for summary judgment on all three claims, 

arguing they could not be held vicariously liable under respondeat superior or 

the non-delegable duty doctrine because Larry was an employee of an 

independent contractor injured by the very condition he was employed to 

address and further arguing they could not be held liable as premises owners 

because they did not have superior knowledge of the risks associated with 

asbestos. In two separate orders, the trial court—relying primarily upon our 

supreme court’s decision in PSI Energy, Inc. v. Roberts, 829 N.E.2d 943 (Ind. 

2005), abrogated in part by Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 

854 N.E.2d 345 (Ind. 2006)—concluded as a matter of law the Defendants 

could not be held liable for the acts of their independent contractors under the 

non-delegable duty doctrine and could not be held liable as premises owners

and entered partial summary judgment in favor of the Defendants on those two 

claims. In denying summary judgment on the respondeat superior claim,

however, the trial court concluded a genuine issue of material fact existed as to 

whether the acts of the Defendants’ employees exposed Larry to asbestos. This 

appeal and cross-appeal ensued.

Discussion and Decision
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I. Standard of Review

[6] When we review a grant or denial of a motion for summary judgment, our 

standard of review is the same as it is for the trial court. Knighten v. E. Chi.

Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). The moving party carries the 

burden of showing there are no genuine issues of material fact and it is entitled 

to judgment as a matter of law. Id. In Indiana, unlike federal practice, the 

moving party will not prevail by merely showing the party carrying the burden 

of proof lacks evidence on a necessary element. Hughley v. State, 15 N.E.3d 

1000, 1003 (Ind. 2014). Rather, “we impose a more onerous burden: to 

affirmatively ‘negate an opponent’s claim.’” Id. (quoting Jarboe v. Landmark 

Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). If the moving 

party carries its burden, then the non-moving party must present evidence 

establishing the existence of a genuine issue of material fact. Knighten, 45 

N.E.3d at 791. In deciding whether summary judgment is proper, we consider 

only the evidence the parties designated to the trial court. See Ind. Trial Rule 

56(C), (H). We construe all factual inferences in favor of the non-moving party 

and resolve all doubts regarding the existence of a material issue against the 

moving party. Knighten, 45 N.E.3d at 791. Indiana’s heightened summary 

judgment standard “consciously errs on the side of letting marginal cases 

proceed to trial on the merits, rather than risk short-circuiting meritorious 

claims.” Hughley, 15 N.E.3d at 1004. “In negligence cases, summary judgment 

is rarely appropriate. This is because negligence cases are particularly fact 

sensitive and are governed by a standard of the objective reasonable person—
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one best applied by a jury after hearing all of the evidence.” Rhodes v. Wright, 

805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations omitted). 

II. Vicarious Liability

[7] Generally, a plaintiff claiming negligence must show a duty owed to the 

plaintiff by the defendant, a breach of that duty, and a compensable injury 

proximately caused by the breach. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind.

2010). “Absent a duty there can be no negligence or liability based upon the 

breach.” Id. Vicarious liability creates “indirect legal responsibility” whereby 

“a court can hold a party legally responsible for the negligence of another, not 

because the party did anything wrong but rather because of the party’s 

relationship to the wrongdoer.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147

(Ind. 1999) (citation omitted). Courts employ various legal doctrines to hold 

people vicariously liable, including the non-delegable duty doctrine and the 

doctrine of respondeat superior. Id.

[8] The Myerses brought vicarious liability claims against the Defendants alleging 

the Defendants were liable for the negligence of the employees of their 

independent contractors under the non-delegable duty doctrine and for the 

negligence of their employees under respondeat superior. In partially granting 

the Defendants’ motion for summary judgment on the vicarious liability claims, 

the trial court concluded the Defendants did not owe a duty to Larry with 

respect to the negligence of the Defendants’ independent contractors’ 

employees, but did owe a duty to Larry with respect to the negligence of the 
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Defendants’ own employees. On appeal, much of the parties’ briefs are 

dedicated to arguing the proper interpretation and application of our supreme 

court’s decision in Roberts, which we address below. The parties agree Larry 

was an employee of Koontz, Koontz was hired to perform electrical work at the 

Defendants’ facilities, and Larry worked alongside other independent 

contractors’ employees and the Defendants’ employees while on the 

Defendants’ premises. See Appellees’ Br. at 9. The parties dispute, however, 

whether the Defendants owed Larry, the employee of an independent 

contractor, a duty of care to protect him from the negligent acts of their 

employees and their independent contractors’ employees. Whether a duty 

exists is question of law, but determining whether a duty exists may be 

dependent upon underlying facts that must be resolved by the trier of fact. BSA 

Constr. LLC. v. Johnson, 54 N.E.3d 1026, 1029 (Ind. Ct. App. 2016), trans. denied. 

A. Holding a Principal Liable for Independent Contractor

Negligence – Non-Delegable Duty

[9] “In Indiana, the long-standing general rule has been that a principal is not liable 

for the negligence of an independent contractor.” Bagley v. Insight Commc’ns Co.,

L.P., 658 N.E.2d 584, 586 (Ind. 1995). However, Indiana recognizes the nondelegable duty doctrine, which provides five exceptions to the general rule of 

non-liability: 

(1) where the contract requires the performance of intrinsically 

dangerous work; (2) where the principal is by law or contract 

charged with performing the specific duty; (3) where the act will 

create a nuisance; (4) where the act to be performed will probably 
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cause injury to others unless due precaution is taken; and (5) 

where the act to be performed is illegal.

Id. Our supreme court explained the rationale for these exceptions:

The duties associated with Indiana’s five exceptions are 

considered non-delegable, and an employer will be liable for the 

negligence of the contractor, because the responsibilities are 

deemed “so important to the community” that the employer 

should not be permitted to transfer these duties to another.

* * *

The exceptions encourage the employer of the contractor to 

participate in the control of work covered by the exceptions in 

order to minimize the risk of resulting injuries.

Id. at 587-88 (citation omitted); see also Carie v. PSI Energy, Inc., 715 N.E.2d 853, 

855 (Ind. 1999) (“The exceptions reflect the notion that, in certain 

circumstances, the employer is in the best position to identify, minimize, and 

administer the risks involved in the contractor’s activities.”) (citation and 

internal quotation marks omitted). In their complaint, the Myerses allege the 

Defendants are vicariously liable under the intrinsically dangerous and due 

precaution exceptions, and unless one of the exceptions applies, the general rule 

of non-liability dictates the Defendants do not owe Larry a duty of care. 

However, even if a plaintiff can establish the applicability of either the first or 

fourth exception to the general rule of non-liability, a principal owes no duty of 

care to an employee of an independent contractor if (1) there is no allegation 
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the principal negligently selected its independent contractors,4 and (2) the facts 

establish the employee was injured by the very condition he was employed to 

address. See Roberts, 829 N.E.2d at 953, 957; see also Helms, 854 N.E.2d at 346

(limiting the Roberts holding to only the first and fourth exceptions to the 

general rule of non-liability).

1. Intrinsically Dangerous Exception

[10] The intrinsically dangerous exception holds principals, such as the Defendants, 

liable for the negligence of their independent contractor if the contracts require

performance of intrinsically dangerous work. See Roberts, 829 N.E.2d at 953-54. 

The exception is “normally associated with strict liability and does not require 

negligence on the part of the contractor” and only “imposes liability for 

activities that are dangerous by nature, not merely because they are carried out 

in a risky manner.” Id. at 954. “If proper precautions can minimize the risk of 

injury, then the activity is not intrinsically dangerous.” Id. at 955. Even if the 

activity is intrinsically dangerous, however, a principal cannot be held liable for 

an injury sustained as a result of an intrinsically dangerous activity if the 

individual was injured by the very condition he was employed to address. See 

generally id. 

 

4 Here, we note the Myerses allege the Defendants negligently hired their independent contractors. The 

Defendants do not attempt to negate this claim and we therefore do not address it. As discussed below, the 

Defendants’ sole contention in defense of the Myerses’ claims is that they cannot be held liable for Larry’s 

injuries because he was injured by the very condition he was employed to address.
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[11] In Roberts, Roberts installed and serviced asbestos insulation for at least twentyfour years while working as an employee of Armstrong Contracting and Supply 

Company (“ACandS”); PSI hired ACandS, an independent contractor, to 

perform work at PSI’s facilities, and as a result, Roberts often worked with and 

around asbestos at PSI’s facilities. 829 N.E.2d at 950. Roberts knew he was 

working with asbestos insulation and could recognize asbestos on sight. In 

addition to performing his own work as an employee of ACandS, Roberts was 

also exposed to asbestos as a result of the acts of PSI’s employees and the 

employees of PSI’s independent contractors. Roberts did not take any 

precautions to protect himself from asbestos exposure and only discovered the 

risks associated with asbestos several years after completing his work at PSI. 

After being diagnosed with mesothelioma, Roberts sued PSI under the theories 

of vicarious and premises liability and received a general jury verdict. 

[12] Our supreme court was tasked with determining whether the evidence was 

sufficient to support the jury’s verdict. The court first addressed whether 

recovery under the intrinsically dangerous exception was supported by the 

evidence. Roberts argued asbestos is intrinsically dangerous, whereas PSI 

disagreed, arguing the evidence at trial established proper precautions could 

have minimized Roberts’s exposure. The court concluded the evidence did not 

support recovery under the intrinsically dangerous exception because testimony 

at trial indicated proper precautions could have minimized Roberts’s risk of 

exposure. See id. at 954-55. However, for a second and independent reason, 

the court concluded Roberts could not prevail because “working with asbestos 
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is not intrinsically dangerous such that anyone hiring a contractor to address it 

incurs strict liability for injuries sustained from exposure to it.” Id. at 955. 

[13] The Myerses claim the Defendants hired independent contractors to perform 

intrinsically dangerous work, namely working with or around asbestos, that in 

turn exposed Larry to asbestos. In its attempt to negate the Myerses’ claim, the 

Defendants rely on Roberts and argue (1) the evidence establishes proper 

precautions could have minimized Larry’s exposure, and (2) working with 

asbestos is not intrinsically dangerous as a matter of law.

[14] As to the first argument, the Defendants do not designate evidence, and we find 

none in the record, indicating proper precautions could have minimized Larry’s

exposure to asbestos. However, we agree with the Defendants’ second 

argument that Roberts also makes clear working with asbestos is not intrinsically 

dangerous as a matter of law. See id. Therefore, the Myerses cannot invoke the 

intrinsically dangerous exception. 

2. Due Precaution Exception

[15] Under the due precaution exception to the general rule of non-liability, a 

principal may be held liable for the negligence of an independent contractor 

where the work to be performed will probably cause injury to others unless due 

precaution is taken. McDaniel v. Bus. Inv. Grp., Ltd., 709 N.E.2d 17, 22 (Ind. Ct. 

App. 1999), trans. denied. “The essence of this exception is the foreseeability of 

the peculiar risk involved in the work and of the need for special precautions.” 

Id. (citation omitted). A principal’s liability will only be established when, at 
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the time of contracting, the principal should have foreseen an injury to others 

was likely to happen. Id. 

[16] Application of this exception requires review of several elements, including a 

peculiar risk; the principal’s foreseeability of that risk; and an injury consistent 

with the peculiar risk.5 Id. A peculiar risk is “the risk of a particularized harm 

specific to the work being performed or the conditions under which it is 

performed.” Id. “[T]he exception applies only when the risk involved is 

something more than the routine and predictable hazards generally associated 

with a given occupation: it must be a risk unique to the circumstances of a given 

job.” Id. 

[17] In Roberts, Roberts contended the evidence supported a finding that PSI was 

liable for his injuries under the due precaution exception. Specifically, he

claimed PSI hired his employer, ACandS, to perform asbestos work and such 

work created a peculiar risk that those performing the work, such as Roberts, 

would contract an asbestos-related illness. PSI contended exposure to asbestos 

materials at PSI’s facilities did not present a peculiar risk to an asbestos worker 

who worked with and around asbestos materials on a daily basis in the normal 

course of his trade. The court concluded the facts did not establish PSI created 

“unusual risks as applied to an insulator,” reasoning Roberts’s job was to install 

and maintain asbestos insulation and therefore the risk of him being exposed to 

 

5 The Defendants do not address the foreseeability and injury elements in their motions for summary 

judgment or on appeal.
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asbestos, regardless of the location of his work, was the always the same. 

Roberts, 829 N.E.2d at 956 (emphasis added). Stated differently, because 

Roberts was injured by the very condition he was employed to address, asbestos 

work did not create a peculiar risk of harm as applied to him. The court 

elaborated, “At most, PSI created a quantitatively higher risk, but not a risk 

unique to PSI, and not a risk requiring qualitatively different precautions from 

those generally associated with asbestos.” Id. 

[18] Here, the Myerses claim asbestos work creates a peculiar risk to others, namely 

electricians and other independent contractors who are exposed to asbestos dust 

and contract asbestos-related illnesses when working in the vicinity of asbestos. 

The Defendants counter this case is analogous to Roberts, arguing Larry was 

injured by the very condition he was employed to address and therefore the 

asbestos work did not create a peculiar risk requiring different precautions than 

generally associated with electrical work. We must therefore determine 

whether Larry was injured by the very condition he was employed to address. 

We conclude the evidence does not establish he was.

[19] Roberts was injured by the very condition he was employed to address because 

he was exposed to asbestos while performing asbestos work. Regardless of 

where Roberts worked, the risk of being exposed to asbestos and contracting 

asbestos-related diseases was the same. Therefore, PSI could not be held liable 

for failing to take different precautions than those generally taken by asbestos 

insulators. The evidence here indicates the Defendants hired Koontz to 

perform electrical work, not asbestos work. While performing electrical work, 
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Larry installed and maintained electrical wire, conduit, light fixtures, 

transformers, junction boxes, and circuit breakers. Unlike the defendants in 

Roberts, the Defendants here have not designated sufficient evidence to indicate

Larry’s risk of being exposed to asbestos was common among electricians or 

across workplaces. In addition, there is a factual dispute as to whether Larry 

was commonly exposed to asbestos during the normal course of his trade. We 

therefore cannot accept the Defendants’ argument that the asbestos work being 

conducted on their premises did not create a peculiar risk of harm to those not 

hired to perform asbestos work, such as Larry. We conclude a genuine issue of 

material fact exists as to whether Larry was injured by the very condition he 

was employed to address and whether asbestos work on the Defendants’ 

premises created a peculiar risk of harm as applied to Larry, an electrician. The 

due precaution exception to the general rule of non-liability is available to the 

Myerses.

[20] In sum, the Defendants attempt to negate the Myerses’ claim by arguing they 

owe no duty of care because asbestos work is not intrinsically dangerous as a 

matter of law and Larry was injured by the very condition he was employed to 

address.

6

 We conclude—consistent with Roberts—asbestos work is not 

intrinsically dangerous. We further conclude, however, the Defendants have 

not designated sufficient evidence to establish Larry was injured by the very 

 

6 We emphasize the Defendants do not attempt to negate the questions of breach and proximate causation. 

Those questions must be resolved by the trier of fact.
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condition he was employed to address. There is a genuine issue of material fact 

as to whether asbestos work created a peculiar risk of harm to Larry, and those 

similarly situated, of being exposed to asbestos. As it stands, the due 

precaution exception to the general rule of non-liability may be applicable. The 

determination of whether a duty exists in this case is dependent upon 

underlying facts that must be resolved by the trier of fact. See BSA Const. LLC., 

54 N.E.2d at 1026. Accordingly, the trial court erred in granting the 

Defendants summary judgment on the Myerses’ non-delegable duty claim.

B. Holding a Principal Liable for Its Own Employee 

Negligence – Respondeat Superior

[21] In denying summary judgment to the Defendants on the Myerses’ respondeat 

superior claim, the trial court concluded a genuine issue of material fact existed 

as to whether the Defendants’ employees exposed Larry to asbestos. “Under 

respondeat superior, an employer, who is not liable because of his own acts, can 

be held liable for the wrongful acts of his employee which are committed within 

the scope of employment.” Sword, 714 N.E.2d at 148 (citation and internal 

quotation marks omitted). 

[22] On appeal, the Defendants rely on Roberts and argue they do not, as a matter of 

law, owe a duty to an employee of an independent contractor who is injured by 

the very condition he is employed to address.7 As noted above, the designated 

 

7 The Defendants also argue the Myerses are precluded from seeking relief because the Myerses did not 

demonstrate a viable claim against the Defendants’ employees. In support of their contention, the 
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evidence does not undisputedly establish Larry was injured by the very 

condition he was employed to address. We therefore need not address whether 

Roberts does, in fact, bar an employee of an independent contractor who is 

injured by the very condition he is employed to address from seeking relief 

under respondeat superior. The Defendants owe Larry a duty of care under 

respondeat superior and a genuine issue of material fact exists as to whether 

Larry was exposed to asbestos as a result of the acts of the Defendants’ 

employees. The trial court did not err in denying the Defendants summary 

judgment on this claim.

III. Premises Liability

[23] “Generally, the owner of property has no duty to furnish the employees of an 

independent contractor a safe place to work in the broad sense as the phrase is 

applied to an employer.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 

1264 (Ind. Ct. App. 2002), trans. denied. The landowner must, however, 

generally maintain the premises in a reasonably safe condition for business 

invitees, which includes independent contractors and the contractors’ 

 

Defendants cite only to Davis v. Cent. Rent-A-Crane, Inc., 663 N.E.2d 1177, 1179 (Ind. Ct. App. 1996),

for the proposition “[a]n employer cannot be held liable under respondeat superior unless a claim can 

be maintained against the employee.” See Appellees’ Br. at 23. In their complaint, the Myerses alleged 

the Defendants’ employees negligently exposed Larry to asbestos while they installed, removed, 

maintained, demolished, replaced, cleaned, tested, labeled, and surveyed areas where asbestos was 

present. Further, the Myerses alleged the employees were acting within the scope of their employment. 

In their motions for summary judgment, the Defendants did not designate any evidence indicating, nor 

did they argue, the Myerses could not maintain a viable claim against the Defendants’ employees. 

Given our standard of review, the Defendants’ argument fails.
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employees. Roberts, 829 N.E.2d at 957. The Restatement (Second) of Torts § 

343 (1965) explains this duty:

A possessor of land is subject to liability for physical harm caused 

to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves 

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against 

the danger.

In addition, Restatement (Second) of Torts § 343A(1), which is meant to be 

read in conjunction with Section 343, see Roberts, 829 N.E.2d at 957-58, states, 

“A possessor of land is not liable to his invitees for physical harm caused to 

them by any activity or condition on the land whose danger is known or 

obvious to them, unless the possessor should anticipate the harm despite such 

knowledge or obviousness.” “The word ‘known’ means knowledge of the 

existence of the condition or activity itself and also appreciation of the danger it 

involves.” Merrill, 771 N.E.2d at 1265. In addition, a possessor of land 

“ordinarily has no liability to an independent contractor or the contractor's 

employees for injuries sustained while addressing a condition as to which the

landowner has no superior knowledge.” Roberts, 829 N.E.2d at 961.
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[24] The comparative knowledge of a landowner and an invitee, such as Larry, is 

not a factor in assessing whether the landowner owes a duty of care; rather, 

such a fact is relevant in assessing whether the landowner breached its duty. 

Rhodes, 805 N.E.2d at 388. “The determination of whether a breach of duty 

occurred is a factual question requiring an evaluation of the landowner’s 

conduct with respect to the requisite standard of care. In this factual 

assessment, the issue of the landowner’s and the invitee’s comparative 

knowledge becomes relevant.” Roberts, 829 N.E.2d at 959 (citation omitted). 

In other words, in determining whether a landowner breached its duty, we 

consider the following factors: (1) the purpose and intent of the invitation and 

(2) the relative knowledge of the parties.8 Merrill, 771 N.E.2d at 1265. 

[25] In their motion for summary judgment, and again here on appeal, the 

Defendants do not attempt to negate the Myerses’ claim under the Restatement. 

Rather, the Defendants rely on Roberts and contend they cannot be found to 

have breached their duty of care because Larry was injured by the very 

condition he was employed to address, and because there is no evidence the 

 

8 Although the Defendants do not rely on the Restatement in arguing they are entitled to judgment as a 

matter of law, we note the evidence establishes the purpose for Larry being on the Defendants’ 

premises was to perform electrical work. As to the comparative knowledge, the evidence establishes 

Larry only knew of the presence of asbestos, he did not know the dangers associated with asbestos, but 

claims the Defendants did have, or should have had, knowledge of the dangers and failed to warn 

Larry. The Defendants do not designate evidence indicating they did not have, or should not have 

had, knowledge of the dangers associated with asbestos. Therefore, we are left to accept the Myerses’

allegation as true and conclude the Defendants have not designated evidence sufficient to negate the 

Myerses’ claim under the Restatement.
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Defendants possessed superior knowledge of the risks associated with asbestos, 

the Myerses’ claim fails. We disagree.

[26] Roberts requires a showing that a landowner has superior knowledge of the 

dangerous condition on the premises only when an employee of an independent 

contractor is injured by the very condition he was employed to address. 829 

N.E.2d at 961. We therefore agree with Defendants’ assertion that Roberts

recognizes a common law exception to the Restatement in situations where the 

employee of an independent contractor is injured by the very condition he was 

employed to address. We disagree, however, the exception is applicable in this 

case. As noted above, there is a genuine factual dispute as to whether Larry 

was injured by the very condition he was employed to address. Therefore, the 

Defendants’ reliance on Roberts in this respect is premature and their liability is 

not limited to only the situation where they had superior knowledge of the

asbestos danger. 

[27] The Defendants did not designate evidence sufficient to negate the Myerses’

premises liability claim.9 Accordingly, the trial court erred in granting the 

Defendants summary judgment on this claim. 

 

9 We further note, even assuming Larry was injured by the very condition he was employed to address, the 

Defendants’ argument still fails because they have not designated evidence negating the Myerses’ claim they 

possessed superior knowledge. In fact, there is no evidence in the record indicating whether any of the 

parties had any knowledge of the risks associated with asbestos. 
Court of Appeals of Indiana | Opinion 49A04-1503-MI-113 | September 28, 2016 Page 21 of 21

Conclusion

[28] Indiana’s summary judgment standard carries with it a heightened burden for 

the moving party, and in negligence cases, summary judgment is rarely 

appropriate. As the moving party, the Defendants were required to designate 

evidence sufficient to negate the Myerses’ claims. The Defendants did not meet

this burden. We conclude there is a genuine issue of material fact as to whether 

the Defendants can be held liable for the negligent acts of their independent 

contractors under one of the exceptions to the non-delegable duty doctrine, and 

the trial court erred in granting summary judgment to Defendants on this 

vicarious liability claim. In addition, the Defendants can be held liable for the 

negligent acts of their own employees, and the trial court did not err in denying 

the Defendants summary judgment on the Myerses’ respondeat superior claim. 

As to the premises liability claim, there is a genuine issue of material fact as to 

whether the Defendants can be liable for failure to maintain their premises in a 

reasonably safe condition, and the trial court erred in granting the Defendants 

summary judgment on that claim. In sum, Defendants are not entitled to 

summary judgment on any of the Myerses’ claims, and we accordingly affirm in 

part, reverse in part, and remand for further proceedings consistent with this 

opinion.

[29] Affirmed in part, reversed in part, and remanded.

Barnes, J., and Altice, J., concur.