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Pelak v. Indiana Industrial Services7/25/2005
er the construction site, the mere fact that [the premises owner] observed the progress of the work is not sufficient to establish control. The owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor. Moreover, it is undisputed that the plaintiff fell off the scaffolding and was injured because he himself constructed it incorrectly. Id. at 898 (internal citations omitted).
Accordingly, the Pelaks have failed to demonstrate an issue of fact relating to Pearson's control over the work site and its duty as a landowner. The designated evidence established Pearson's representatives were not aware the temporary catwalk was being erected, nor did they have any say over the manner or means by which it was erected. IIS oversaw the erection of the planking for the temporary bar grating system and determined it was necessary to use such planking to better facilitate the installation of the conveyor system.
Pearson did not help with the installation of the conveyor nor did anyone from Pearson handle any of the temporary bar grating. During the installation of the temporary bar grating and the conveyor IIS reported directly to Malloy, a Rapistan employee and at no time did IIS take orders from or report to Pearson. Indiana cases have uniformly held that where an instrumentality causing injury was in the control of an independent contractor, a duty will not be found where there is no evidence that the landowner maintained any control over the "manner or means" by which the contractor engaged in its work. See, e.g., Bethlehem Steel Corp., 661 N.E.2d at 556.
CONCLUSION
Absent a duty, there can be no recovery for the plaintiff in a negligence cause of action. Vaughn v. Daniels Co. (West Virginia), Inc., 777 N.E.2d 1110, 1133 (Ind. Ct. App. 2002). Therefore, we affirm the trial court's grant of Pearson's motion for summary judgment.
The Pelaks did not designate evidence that would give rise to an issue of fact as to whether Pearson, as premises owner, owed a duty to Pelak. We affirm the trial court's grant of summary judgment for Pearson.
Affirmed.
SHARPNACK, J., and BAILEY, J., concur.
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