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Pelak v. Indiana Industrial Services7/25/2005
FOR PUBLICATION
Thomas Pelak and Diane Kaye Pelak appeal the trial court's grant of summary judgment on their claim of negligence against Pearson Education, Inc. and Prentice-Hall, Inc. (collectively "Pearson") for injuries Thomas suffered. The Pelaks raise several issues, which we consolidate and restate as whether a genuine issue of material fact existed as to Pearson's control of the premises where Pelak was injured.
We affirm.
FACTS AND PROCEDURAL HISTORY
Pearson purchased a new conveyor and related equipment from Rapistan Systems. Pearson issued a purchase order based on a bid proposal solicited from Rapistan. Rapistan sub-contracted with Indiana Industrial Systems ("IIS") to install the conveyor. The installation required the construction of a temporary catwalk system along an elevated section of the conveyor system. IIS built a catwalk consisting of sheets of bar grating placed on top of, but not affixed to, supporting structural steel. The catwalk had gaps where there was no grating, planking, warning signs, chains, rails or footboards.
On March 1, 2000, during the final stage of the conveyor's installation, Pelak, a senior project engineer for Rapistan, was on the catwalk at the center of the conveyor trouble-shooting the conveyor system's electronic controls. As he walked toward the front end of the conveyor, he fell through a two-to-three foot gap in the catwalk. He fell fifteen feet to a concrete floor and suffered severe injuries. On February 26, 2002, the Pelaks brought a premises liability action against Pearson and IIS.
Pearson filed a motion for summary judgment, which the trial court denied. Pearson then designated additional evidence and filed a second motion for summary judgment. The trial court granted the second motion for summary judgment, but it did not specify on what basis the motion was granted. Pelak requested permission to bring an interlocutory appeal, which we granted. Additional facts will be set forth as necessary.
DISCUSSION AND DECISION
The Pelaks argue the trial court erred by entering summary judgment for Pearson because Pearson, as owner of the premises where Pelak was injured, owed Pelak a duty of care. Pearson argues it did not have a duty to provide a safe work environment for Pelak, who was an employee of an independent contractor, "because it did not control the allegedly dangerous condition, or the manner and means by which it was installed." (Appellee's Br. at 10.)
On appeal, the standard of review for a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 984 (Ind. 1998). Review of a summary judgment motion is limited to those materials designated to the trial court.
T.R. 56(H); Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). We must carefully review a grant of summary judgment to ensure a party was not improperly denied its day in court. Estate of Shebel ex rel. Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind. 1999).
A negligence action is generally not appropriate for disposal by summary judgment. Kincaid v. MAC Corp., 773 N.E.2d 909, 911 (Ind. Ct. App. 2002). However, a defendant may obtain summary judgment in a negligence action when the undisputed facts negate at least one element of the plaintiff'
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