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ATTORNEYS FOR APPELLANT Robert K. Stanley Kevin M. Toner Kathy L. Osborn Meg A. Gallmeyer Indianapolis, Indiana Eric M. Cavanaugh Plainfield, Indiana AMICUS CURIAE INDIANA MANUFACTURERS ASSOCIATION Knight S. Anderson Keith J. Hays Indianapolis, Indiana AMICUS CURIAE O'MALIA FOOD MARKETS, INC. Jason L. Kennedy Chicago, Illinois

ATTORNEYS FOR APPELLEES Linda George W. Russell Sipes Indianapolis, Indiana

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In the

Indiana Supreme Court
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No. 49S02-0405-CV-217 PSI ENERGY, INC., Appellant (Defendant below), v. WILLIAM LEE ROBERTS, JR., AND BEVERLY ROBERTS, Appellees (Plaintiffs below). _________________________________ Appeal from the Marion Superior Court, No. 49D02-9601-MI-0001-687 The Honorable Kenneth H. Johnson, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0210-CV-883 _________________________________ June 28, 2005

Boehm, Justice. William Roberts contracted mesothelioma as a result of his work with asbestoscontaining insulation as an employee of Armstrong Contracting and Supply Company (ACandS). Much of his work over a thirty-nine year career was at power generation facilities of PSI Energy, Inc. Roberts sued PSI and others on both vicarious liability and premises liability theories. A jury found PSI thirteen percent at fault without specifying which theory supported that result. We hold that PSI is not vicariously liable for the negligence of its independent contractor ACandS. We also hold that as a general proposition a landowner or other possessor of real estate harboring a potentially dangerous condition is not liable to an independent contractor or its employees for injuries sustained by reason of the condition the contractor is employed to address. Under the circumstances of this case, however, there was sufficient evidence to support the jury's verdict in favor of Roberts and his wife under the premises liability instructions. Factual and Procedural Background Roberts worked for ACandS as an insulator for most of his life. He started part-time in 1956, and worked full-time from 1957 through 1986 and from 1989 through 1991. He retired from full-time employment in 1992, but continued to work part-time until 1997. ACandS was the nation's largest insulation contractor over this period. Roberts worked with insulation containing asbestos from the time he started working in 1956 until his employer stopped using it in the early 1980s. ACandS supplied its insulation services to a variety of industrial and other customers and assigned employees, including Roberts, to install and service insulation at a number of facilities. Roberts routinely installed, handled, removed, and otherwise worked directly with insulation containing asbestos. He knew that he was working with asbestos insulation and could recognize asbestos on sight. He estimated that over the course of his career he spent fifteen to eighteen years at various generating stations owned by PSI, the electric utility servicing a large part of Indiana. In the late 1960s and into the 1970s, Roberts often worked at PSI's Dresser generating station. According to Roberts, the asbestos insulation at this station was in very poor condition, 2

"torn up," and "raggy." In performing his own work, Roberts was often exposed to asbestos, and he was also exposed to the material as the result of activities of PSI employees and other PSI contractors. Roberts and others who worked with him often had no protective clothing, masks, or respirators. PSI's corporate representative testified that he frequently saw ACandS's

insulators working with asbestos at PSI plants in the 1960s and 1970s, but never saw them take any precautions to protect themselves from breathing asbestos dust. A link between asbestos exposure and mesothelioma was established as early as the 1940s and 1950s. The evidence presented at trial indicated that ACandS was or should have been aware of asbestos-related health problems at least by the early 1960s. Roberts was a member of the Local 18 of Heat and Frost Insulators International and received its publications beginning in 1958. Articles in the union's magazines urged asbestos workers to use safety equipment, and "green sheets" included with the magazines from 1969 through 1976 discussed asbestos-related health problems. Roberts testified that he did not learn the true dangers of asbestos until the 1980s and that ACandS did not supply masks for the employees until the 1970s. He asserted that sometime in the 1970s, he noticed that asbestos products were being phased out, but no one told him it was for safety reasons. Roberts was diagnosed with peritoneal mesothelioma in 2001. 1 In August of that year, he and his wife sued for Roberts's injury and for Mrs. Roberts's loss of consortium. They sought damages from PSI and sixty other defendants, including both manufacturers of asbestos and other landowners. As to the landowners, the complaint asserted both a premises liability theory and also that the Roberts's claims fell under exceptions to the general rule that a principal is not vicariously liable for the acts of ACandS, its independent contractor. The case was tried to a jury on both counts. PSI objected to the trial court's instructions on the Roberts's theories of liability, and also moved for judgment on the evidence at the close of the Roberts's case and again at the close of all of the evidence. The trial court denied both motions and submitted the case to the jury. By this point in the trial, most defendants had settled
The National Cancer Institute explains: "malignant mesothelioma, a rare form of cancer, is a disease in which cancer cells are found in the sac lining the chest, the lining of the abdominal cavity, or the lining around the heart." Most people with malignant mesothelioma contracted the disease while working in environments where they breathed asbestos fibers. Nat'l Cancer Institute, Mesothelioma, at http://www.mesotheliomaweb.org/mesothelioma.htm (last visited June 23, 2005).
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and the only remaining defendants were PSI and three other premises owners, Eli Lilly, a pharmaceutical manufacturer, Central Soya, a food processor, and Kroger, a retail grocery chain. The jury returned a general verdict, finding compensatory damages of $2,800,000 for Roberts, who died after trial began, and $1,000,000 for Mrs. Roberts. The jury rejected the plaintiffs' claim for punitive damages. The jury allocated fault thirteen percent to PSI, twelve percent to Roberts, and none to the other three defendants. The remaining seventy-five percent was

allocated to sixteen nonparties including thirty-six percent to ACandS. The trial court then entered judgment against PSI for $364,000 to Roberts and $130,000 to his wife. PSI appealed and the Court of Appeals held that PSI could be held liable as a premises defendant, and therefore affirmed the judgment based on a general judgment. PSI Energy, Inc., v. Roberts, 802 N.E.2d 468, 479 (Ind. Ct. App. 2004). This Court granted transfer. PSI v. Roberts, 812 N.E.2d 806 (Ind. 2004). Standard of Review PSI challenges the denial of its motion for judgment on the evidence under Indiana Trial Rule 50 and the denial of its motion to correct error under Indiana Trial Rule 59. In reviewing a trial court's ruling on a motion for judgment on the evidence, the appellate court is to consider only the evidence and reasonable inferences most favorable to the non-moving party. Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind. 1993). In considering a motion to correct error based on a claim of insufficient evidence, if the trial court determines that there is a total absence of evidence supporting a necessary element of the plaintiff's case the court should enter judgment for the defendant. State v. Emry, 753 N.E.2d 19, 21 (Ind. Ct. App. 2001). On the other hand, if there is some evidence to support the jury's verdict, the trial court must determine whether the jury's verdict is supported by sufficient evidence without weighing the evidence or judging the credibility of the witnesses. Id. Both rules mandate that the motion be granted when there is insufficient evidence under the law to support a verdict. Huff v. Travelers Indem. Co., 363 N.E.2d 985, 990 (Ind. 1977). The jury returned a general verdict. PSI challenges the verdict arguing that the evidence is not sufficient to support it, but does not challenge the jury instructions on appeal. In this procedural posture, "a general verdict will be sustained if the evidence is sufficient to sustain any

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theory of liability." Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind. 1988) (citing In re Estate of Fanning, 263 Ind. 414, 417, 333 N.E.2d 80, 82 (1975); City of Indianapolis v. Pollard, 241 Ind. 66, 72, 169 N.E.2d 405, 408 (1960)). I. Vicarious Liability for Acts of ACandS The parties agree that ACandS provided its services to PSI as an independent contractor. "The long-standing general rule has been that a principal is not liable for the negligence of an independent contractor." Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). Indiana law recognizes five exceptions to this general rule, based on public policy concerns, which militate against permitting a principal to absolve itself of responsibility for some activities by conducting them through an independent contractor. Id. Roberts contended in the trial court that two of these exceptions applied here: (1) the "intrinsically dangerous" exception--"where the contract requires the performance of intrinsically dangerous work," and (2) the "due precaution" exception--"where the act will probably cause injury to others unless due precaution is taken." As is explained below, the trial court instructed on both theories. As Carie pointed out, the principal's liability in these exceptional situations is based on the idea that the principal "is in the best position to identify, minimize, and administer the risks involved in the contractor's activities." Id. Here, however, PSI contends with considerable force that it and the other owners of facilities containing asbestos were in no better position than ACandS to evaluate the risks inherent in working with insulation containing asbestos. A. Liability of the Principal to the Independent Contractor or its Employees The term used to describe these exceptions--"nondelegable duty"--has historically been developed in the context of claims that the negligence of an independent contractor should be attributed to the principal. Dan B. Dobbs, The Law of Torts

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