ATTORNEYS FOR APPELLANTS			ATTORNEYS FOR APPELLEE

Stephen L. Williams				William W. Drummy

Terre Haute, Indiana			John Christopher Wall

							Terre Haute, Indiana

Paul B. Ledford				

Vincennes, Indiana				Eric M. Cavanaugh

							Plainfield, Indiana

IN THE

SUPREME COURT OF INDIANA

HAROLD CARIE and AL HARPER,		)

							)

	Appellants (Plaintiffs Below),)  83S01-9811-CV-695

							)  in the Supreme Court

			v.				)

							)  83A01-9707-CV-229

PSI ENERGY, INC.,				)  in the Court of Appeals

							)

	Appellee (Defendant Below).	)

APPEAL FROM VERMILLION CIRCUIT COURT

The Honorable Robert M. Hall, Special Judge

Cause Nos. 83C01-9307-CP-55 and

83C01-9307-CP-56

September 32, 1999

SHEPARD, Chief Justice.

	Harold Carie and Al Harper, employees of an independent

contractor, each sued PSI Energy, Inc., for injuries sustained

while performing maintenance on PSI's equipment.  The trial court 

granted summary judgment in favor of PSI.  The Court of Appeals reversed, holding that PSI might be liable under the "due

precaution" exception.  Carie v. PSI Energy, Inc., 694 N.E.2d 729 (Ind. Ct. App. 1998).  We now grant transfer and affirm the trial

court.  

Facts and Procedural Posture

	The relevant facts in this case are undisputed.  PSI's Cayuga

Generating Station produces electricity using pulverized coal. 

After the coal is pulverized, it is moved into exhausters.  An

exhauster is a fan-like apparatus containing eight blades and

resembling a paddle wheel.  The exhausters distribute the coal to

the boilers which generate the electricity. 

	At one time, PSI performed its own maintenance at the Cayuga

plant.  PSI employees developed a fixture to facilitate maintenance

on the exhausters.  The fixture enabled PSI employees to remove the

5,200-pound front cover of an exhauster.  The removal process

involved bolting the fixture to the cover, unbolting the cover from

the exhauster, securing a forklift to the fixture, and backing the

forklift away from the exhauster with the fixture and the cover. 

As the fixture was not designed to be self-supporting, the forklift

would then generally move the cover and fixture away from the

exhauster to be tied off to an overhead beam.  Until the fixture

and cover were tied off to another structure, the forklift was required to support them.  

	In 1979, PSI began to employ independent contractors to do

mill maintenance.  In August of 1989, PSI contracted with Blount,

Inc. for maintenance at the Cayuga plant.1  Timothy Weiss was the Blount boilermaker foreman in charge of the Cayuga station

maintenance.  From the time Blount hired him in 1986, Weiss had

performed maintenance work at several PSI plants, including repairs

on exhausters.  A PSI employee taught Weiss how to remove the

exhauster covers using the jig fixture and a forklift.  By

September of 1991, Weiss had performed the removal procedure on

exhauster covers several times.  

	On September 5, 1991, Weiss and his crew were repairing one of

the exhausters at the Cayuga plant.  Plaintiffs Carie and Harper

were part of that crew.  Weiss testified that he knew, and informed

his crew members, that the fixture and exhauster cover were not

self-supporting.  (Supp. R. at 433-34.)  Beginning the repairs, a

Blount crew member named Kenneth Richmond used a forklift owned by

PSI to remove the exhauster cover and attached fixture.  Richmond

later testified that he did not know the fixture and exhauster

cover were not self-supporting.  (R. at 639.)  Richmond backed the forklift up four or five feet when it stalled.  As was customary,

when the forklift stalled, Weiss left the area to get a PSI

employee to fix the machine.  Before leaving, Weiss told his crew

members "to leave it alone, don't touch it, I'll go get--I'll go

tell somebody to fix it."  (Supp. R. at 440.)

	While Weiss was away from the area, PSI mechanics came to the

scene and examined the forklift.  The mechanics instructed Richmond

how to operate the forklift without stalling it.  Richmond then

restarted the forklift and backed up another eight to ten feet.  He

lowered the fixture and cover to the floor, leaving the hooks of

the forklift inserted in the fixture.  While Richmond was waiting

for Weiss to return, another forklift approached the area and

needed to pass.  Richmond's forklift, the cover, and the fixture

were blocking his way.  Richmond removed the forklift hooks and

backed up to let the other forklift pass.  Left unsupported, the

fixture and the attached exhauster cover fell, seriously injuring

Carie and Harper. 

	Carie and Harper filed separate complaints against PSI

alleging negligence.  The trial court consolidated the two cases. 

PSI moved for summary judgment, which the trial court granted based

on the general rule that a person who hires an independent

contractor is not liable for the independent contractor's

negligence.  Carie and Harper appealed.  Applying an exception to

the general rule of non-liability, the Court of Appeals reversed, with Judge Friedlander dissenting, Carie, 694 N.E.2d at 737-38.  In their petition to transfer, Carie and Harper present one

dispositive issue: whether the "due precaution" exception to the

general rule of non-liability applies to their case.    

Summary Judgment Standard of Review

	A grant of summary judgment requires that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law.  Ind.Trial Rule 56(C); Ayres v. Indian Heights Volunteer Fire Dep't., Inc., 493 N.E.2d 1229 (Ind. 1986).  On appeal from summary judgment, the reviewing court faces the same

issues that were before the trial court, and analyzes them in the

same way.  Ambassador Fin. Services, Inc. v. Indiana Nat'l Bank, 605 N.E.2d 746, (Ind. 1992).  "We view the pleadings, depositions,

answers to interrogatories and affidavits in the light most

favorable to the non-moving party."  Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991).  Although the nonmovant has the burden of

demonstrating the grant of summary judgment was erroneous, we

carefully assess the trial court's decision to ensure that the

nonmovant was not improperly denied his day in court.  Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664 (Ind. 1997). 

Analysis

	The question is whether PSI owed Blount's employees a duty of

care.  "[T]he long-standing general rule has been that a principal

is not liable for the negligence of an independent contractor." 

Bagley v. Insight Communications Co., 658 N.E.2d 584, 586 (Ind. 1995) (citing Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 597, 106 N.E. 365, 367 (1914); City of Logansport v. Dick, 70 Ind. 65, 78 (1880)).  Indiana courts, however, have recognized five exceptions

to the general rule.  Bagley, 658 N.E.2d at 586.  The exceptions are: (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 cause injury to others unless due precaution is taken; and

(5) where the act to be performed is illegal.  Id.  In Bagley, we explained the rationale for these exceptions like this:

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.

Bagley, 658 N.E.2d at 587-88 (citations omitted).  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."  7 Am. Jur. Proof

of Facts 3d § 1 at 483 (1990).

	The parties agree that the relationship between PSI and Blount

was one of contractee and independent contractor, respectively. 

Thus, unless one of the exceptions applies, the general rule would

dictate that PSI did not owe Blount or its employees a duty of

care.  

	The two exceptions potentially applicable include where the

contract requires the performance of intrinsically dangerous work

and where the act to be performed will probably cause injury to

others unless due precaution is taken.  The Court of Appeals

determined that the exception for intrinsically dangerous work was

inapplicable here.  That conclusion is not challenged on transfer.2  Our inquiry thus focusses solely on the applicability of exception

four:  where the act to be performed will probably cause injury to

others unless due precaution is taken.

Exception Four: Probability of Injury Absent Due Precaution

	As the Court of Appeals majority noted, the due precaution exception3 makes an employer "liable for the negligence of an independent contractor 'where the act to be performed will probably

cause injury to others unless due precaution is taken.'"  Carie, 694 N.E.2d at 735 (quoting Bagley, 658 N.E.2d at 586).4  This Court explained the exception in Bagley:

The essence of this exception is the foreseeability of

the peculiar risk involved in the work and of the need

for special precautions.  The exception applies where, at

the time of the making of the contract, a principal

should have foreseen that the performance of the work or

the conditions under which it was to be performed would,

absent precautionary measures, probably cause injury.

	Application of this fourth exception to the plaintiff's claim thus requires an examination of

whether, at the time [a party] was employed as an

independent contractor, there existed a peculiar risk

which was reasonably foreseeable and which recognizably

called for precautionary measures.

658 N.E.2d at 588 (citations omitted); see also Cummings v. Hoosier Marine Properties, Inc., 173 Ind. App. 372, 387, 363 N.E.2d 1266, 1275 (1977) ("an action would fail absent a showing by the

plaintiff that in view of the nature of the work and the conditions

under which it was to be executed, the defendant should have

foreseen that the actual catastrophe which occurred was likely to

happen").  Rather than focussing on the permutations of

"peculiar,"5 we believe the proper inquiry in this case rests on foreseeability.  "Foreseeability is an essential element" in the

due precaution exception.  Denneau v. Indiana & Michigan Elec. Co., 150 Ind. App. 615, 621, 277 N.E.2d 8, 12 (1971).

	The policy underlying the foreseeability requirement has been

explained:

	It is apparent that virtual abrogation of the

general doctrine of an employer's non-liability for acts

of an independent contractor of the latter's servants

would result if the law were to predicate, under all

circumstances, the existence of an absolute duty on the

employer's part to guard against all accidents probable

as well as improbable, that might happen, to the damage

of third persons, while stipulated work is being

performed by an independent contractor.  If, therefore,

recovery is sought on the ground that an employer should

have adopted certain precautionary measures for the

purpose of preventing the injury complained of, the action must fail unless the plaintiff can at least show

that in view of the nature of the work and the conditions

under which it was to be executed, the defendant should

have foreseen that the actual catastrophe which occurred

was likely to happen if those precautionary measures were omitted.

Jones v. Indianapolis Power and Light Co., 158 Ind. App. 676, 691, 304 N.E.2d 337, 346 (1973) (quoting 41 Am. Jur. 2d Independent

Contractors § 35) (now § 31 at 430 (1995)) (emphasis supplied in

Jones).  With these standards in mind, and with the relevant facts undisputed, the inquiry here becomes whether, as a matter of law,

PSI should have foreseen that the performance of maintenance work

on the exhausters would probably result in this type of incident

unless due precaution was taken.  

	That determination hinges on the degree of factual specificity

which the law should require the employer to foresee.  The Court of

Appeals majority decided that the due precaution exception applied

because PSI should have foreseen the general risk which caused

Carie and Harper's injuries, saying:  

The question . . . is whether the use of the non-self-

supporting fixture to remove an exhauster cover would

make injury "likely to happen" unless precautionary

measures were taken.  The answer is yes. . . . [I]t was

foreseeable to PSI at the time of contracting that if the fixture was left unsupported, it would fall and likely

cause injury.

Carie, 694 N.E.2d at 736-37.  In dissent, Judge Friedlander asserted that the exception should apply only if there was some

relatively more peculiar or special foreseeable risk, phrasing the

dispositive issue as: 

At the time of the signing of the contract, could PSI

have foreseen that a forklift would fail while it was

supporting a jig and front cover, and that a Blount

employee would move the forklift, leaving the front cover

unsupported, which would then fall and injure someone? .

. . [T]his question must be answered in the negative.

Id. at 739.  We agree with Judge Friedlander that "the danger that the contractee must foresee in order to fit within the fourth

exception must be substantially similar to the accident that

produced the complained-of injury."  Id. at 737.

	This policy was apparent when the Jones court recited the facts of the incident with particular specificity when affirming

the summary judgment in favor of the defendant:

	There was no evidence that, at the time [the

employer] contracted with [the independent contractor],

[the employer] could foresee or should have foreseen that

the limit control switch atop a man and materials hoist

operated by an independent contractor for exclusive use

of its employees would become clogged with ice and snow

causing the hoist to stick--and that employees of such

independent contractor would undertake to manipulate the

hoist circuitry so as to cause death or injury.

Jones, 158 Ind. App. at 690-91, 304 N.E.2d at 346.  We implicitly required a similar level of factual specificity in Bagley.  In that case, Bagley, an employee of an independent contractor, "was

injured as he was hammering a rod into the ground near the ladder on which [the independent contractor] was working.  The ladder

slipped on snow and ice, and [the independent contractor] landed on

Bagley, driving Bagley's head down onto the protruding rod." 

Bagley, 658 N.E.2d at 588.  Upholding summary judgment in favor of the defendants, the Court stated:

At the time the contracts were made, the delegated work

did not present the peculiar probability that an injury

such as Bagley's would result unless precautionary

measures were taken, and the employers could not have

been expected to foresee the sort of injury which

actually occurred.

Id.  In the present case, Judge Friedlander was correct to call for a more precise factual congruence between that which was

foreseeable and that which ultimately occurred.6  We are satisfied that PSI could not have foreseen the sequence of events leading to

plaintiffs' injuries when it hired Blount to perform maintenance at

Cayuga, and as such, the due precaution exception does not apply. 

Cf., Red Rood Inns, 691 N.E.2d at 1346 ("[W]e are not persuaded that the nature of the work and the conditions under which it was

performed were such that, at the time of contracting, a reasonable

employer should have foreseen that injury . . . was likely to

occur.").  Accordingly, the general rule of non-liability for the

torts of independent contractors applies and the plaintiffs' claims must applyfail.

Conclusion

	We vacate the opinion of the Court of Appeals and affirm the

trial court's entry of summary judgment.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.