Since Rittenhouse cannot be held liable, no action based solely on respondeat superior is maintainable against his employer, Star Excavating. Summary judgment was properly entered for Star Excavating. Summary Judgment for Indiana Riffle next argues that the trial court erred in entering summary judgment for Indiana. Riffle argues that Indiana is potentially liable for the accident because they have a common law duty as a landowner and assumed a contractual duty. The existence of a duty is generally a question of law.
Summary judgment is appropriate where there is no duty as a matter of law.
Riffle argues for the creation of a new common law landowner duty to protect contractor's employees. We first look to the relationship of the parties. Riffle was an employee of an independent contractor working on land owned by Indiana. When injury is caused by a dangerous instrumentality controlled by a contractor, a property owner generally owes no duty to the contractor's employees. To establish a duty, the employee must show the landowner assumed control of the dangerous instrumentality or had superior knowledge of the potential dangers involved.