FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:    ATTORNEY FOR APPELLEE:

PAMELA A. PAIGE    LESLIE CRAIG HENDERZAHS
Smith & Wade     Church Church Hittle & Antrim
Indianapolis, Indiana    Noblesville, Indiana

RED ROOF INNS, INC. and                             )
JOHN HEIM (a/k/a HEINZ                                   ),    )
                                                         )
    Appellants-Defendants,                               )
                                                         )
        vs.                                              )    No. 48A02-9707-CV-438
                                                         )
MICHAEL S. PURVIS,                                       )
                                                         )
    Appellee-Plaintiff.                                  )

                                                     

                      

                                                     
APPEAL FROM THE MADISON SUPERIOR COURT
 

KIRSCH, Judge

personal protective equipment was used. Purvis alleges that, at Jay Reichart's command, he walked across the tarpaulin to get a board, slipped and fell some thirty feet to the ground, sustaining serious injuries.
    Purvis filed suit against Red Roof Inns, Jay Reichart, and Reichart, the business entity.See footnote 2 Purvis also named as a defendant John Heim, Red Roof Inns' project manager, both in his individual capacity and in his capacity as an employee of Red Roof Inns. In Count I of his complaint, Purvis claims that Red Roof supervised Reichart's work and failed to ensure that appropriate safety devices were in place. In Count II, he avers that Red Roof negligently hired its employee John Heim.
    Red Roof filed a motion for summary judgment in response to the original complaint. In a January 8, 1997 order, the trial court granted the motion on Purvis' claim against John Heim individually and denied the motion on the claims against Red Roof Inns and John Heim in his employed capacity. Meanwhile, Purvis had amended his complaint to aver negligence in the hiring of Reichart, the independent contractor.
    Red Roof then moved for partial summary judgment on the issue of negligent hiring. In a "Memorandum Decision" dated May 7, 1997, the trial court denied Red Roof's motion for partial summary judgment, finding that evidence and inferences from that evidence support a conclusion that Red Roof owed a duty to Purvis to select a competent contractor.See footnote 3

    Red Roof filed its Petition for Certification of Appeal of Interlocutory Order and For Stay of Proceedings Pending Appeal. The trial court certified both the January 8, 1997 and May 7, 1997 ordersSee footnote 4 after which this court accepted jurisdiction of the appeal pursuant to Indiana Appellate Rule 4(B)(6).

summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.
    Purvis' claim against Red Roof sounds in negligence. The tort of negligence consists of the following elements: 1) a duty owed to the plaintiff by the defendant; 2) a breach of that duty by the defendant; and 3) injury to the plaintiff proximately caused by that breach. Id. The defendant may obtain summary judgment in a negligence action by demonstrating that the undisputed material facts negate at least one element of the plaintiff's claim. Ramon v. Glenroy Constr. Co., 609 N.E.2d 1123, 1128 (Ind. Ct. App. 1993), trans. denied.

N.E.2d 584, 587 (Ind. 1995). The court reiterated the general rule that a principal is not liable for the negligence of an independent contractor and then recognized the following five exceptions to the general rule of nonliability:
    "(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. at 586. These exceptions were described as "specific, limited situations in which the associated duties are considered non-delegable" because of public policy concerns. Id. at 588.
    While the supreme court agreed with the basic concepts embodied in Section 411, negligent hiring of an independent contractor, it declined to recognize a new independent tort, deciding instead that the basic concepts were "subsumed" in the five existing exceptions to the general rule of nonliability. Id. at 587. Thus, one who hires an independent contractor may be liable for the failure to exercise reasonable care to employ a competent and careful contractor only when there is a non-delegable duty based upon at least one of the five exceptions. When an independent contractor's employer is responsible for a non-delegable

duty under one or more of the five exceptions, the contractor's injured worker has recourse equal to that of an injured bystander. Id. at 588.

Id. at 588 (emphasis added) (citations omitted).
    In this case, both parties devote much of their briefs discussing the foregoing term "peculiar risk," and the meaning of the term was a central theme at oral argument. Red Roof insists that the fourth exception is inapplicable because the risk that Purvis would fall from the roof was an "ordinary" or "routine" risk of the roofing industry, not an "unusual" or "peculiar" risk for which liability might be extended to the hiring entity. Purvis claims, and the trial court agreed, that "peculiar" means risks "specific" or "unique" to the job at hand, and a roofer's fall from a roof is such a risk.
    In support of its position, Red Roof cites Sievers v. McClure, 746 P.2d 885 (Alaska 1987) where, at the direction of his supervisor, an employee of an independent roofing contractor was thawing ice on a roof with a propane torch in order to prepare the roof surface

for the application of asphalt shingles. No "motion stopping devices," required by state law, were in place. Id. at 886. The employee slipped and fell to his death. The decedent's personal representative filed suit against the general contractor, and the trial court granted the general contractor's motion for summary judgment. Id.
    On appeal, the Supreme Court of Alaska held that, under Section 413 of the Restatement,See footnote 6 "peculiar risk" for which the employer would be liable included only risks that are not routinely encountered in the contractor's line of work. Id. at 890. Thus, the employer of the independent contractor assumes liability for those hazards the independent contractor "is unlikely to be aware of and therefore unable to protect against." Id. Because the risk of falling from a roof is a risk that all roofers routinely face, the Alaska court affirmed summary judgment in favor of the general contractor. Id. The court reached this result after having weighed what both the trial court and the reviewing court considered "contradictory and

ambiguous language of the comment [following Section 413]" which "mirrors the uncertainty of the law in this area." Id. at 887.See footnote 7
    The Supreme Court of Iowa reached the same result by way of a different analysis. Clausen v. R.W. Gilbert Constr. Co., 309 N.W.2d 462 (Iowa 1981). In Clausen, an employee of an independent subcontractor filed suit against the general contractor for injuries sustained in a fall from a wet and slippery roof at a residential construction site. As here, the employee had no long-term experience as a roofer. Id. at 464.
    The court observed that the element of foreseeability must be present to allow recovery, so the danger or risk must be foreseeable by the employer in the normal conduct of the operation. Id. at 466. Quoting the Restatement, the Clausen court agreed that the "peculiar risk" exception is not concerned with "the taking of routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all the ordinary and customary dangers which may arise in the course of the contemplated work." Id. (quoting Restatement (Second) of Torts § 413 cmt. b, at 385 (1965)) (emphasis added in Clausen). Declining to hold that the general contractor's duty was non-delegable, the court ruled that the matter had been erroneously submitted to the jury. Id. at 467.

    Clausen relied in part upon Lunde v. Winnebago Indus., Inc., 299 N.W.2d 473 (Iowa 1980), which considered "peculiar risk" under Section 416 of the Restatement,See footnote 8 and reasoned that the required risk must be created by the nature of the work itself, that is, inherent in the project, rather than collateral to that work.See footnote 9 Id. at 476-77; see Clausen, 309 N.W.2d at 466. The Iowa court also observed that ordinary building operations or activities, both construction and demolition, are generally not covered by the peculiar risk exception. Lunde, 299 N.W.2d at 477. Hence, the court held that an employee of an independent contractor who was injured in a fall from a roof could not recover from the employer of the independent contractor under the "peculiar risk doctrine." Id. at 479.
    While Indiana courts have not attempted to define "peculiar risk," the reasoning from several of our decisions parallels that of the Iowa court. We recognize that the risk evolves

from the nature of the work and the conditions under which it is to be performed; however, foreseeability is an essential element of the fourth exception and liability is established only when, at the time of contracting, the employer should have foreseen that injury to others was "likely to happen." As we have explained:
    "It is apparent that virtual abrogation of the general doctrine of an employer's nonliability for acts of an independent contractor or 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) (emphasis supplied in Jones).
    Applying this principle, the Bagley court held that the requirements of the fourth exception were not satisfied where the plaintiff was injured when another person fell from a ladder driving the plaintiff's head onto the protruding rod he had been hammering into the ground. The court stated that, at the time the contracts were executed, "the delegated work did not present the peculiar probability that an injury such as [plaintiff's] would result unless precautionary measures were taken." Bagley, 658 N.E.2d at 588. Because, at the time of contracting "the employers could not have been expected to foresee the sort of injury which

actually occurred," the court affirmed the trial court's entry of summary judgment. Id. at 588-89.
    Similarly, in Cummings, a worker was fatally crushed when part of a wall adjoining a sewer trench caved in, covering the worker. Cummings v. Hoosier Marine Properties, Inc., 173 Ind. App. 372, 376, 363 N.E.2d 1266, 1270 (1977). No sheeting or shoring supported the walls of the excavation. Id. In concluding that the trial court was justified in entering judgment on the evidence for the owner of the project, we observed that the record revealed no evidence that the owner "had any knowledge of a potentially unsafe or dangerous condition at the time the sewer trenches were contracted for." Id. at 387, 363 N.E.2d at 1276. Consequently, an action under the fourth exception failed. Id. at 387-88, 363 N.E.2d at 1276.
    In this case, as in Bagley and Cummings, we 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 to Purvis was likely to occur.See footnote 10 The employer of an independent contractor may always anticipate that, if the contractor is negligent toward third persons, some harm to those persons may result. See Restatement § 413 cmt. b, at 385. Thus, Red Roof could have foreseen the possibility that

Purvis could be injured from a fall if no safety precautions were in place. More than the possibility of harm, however, is required; the plaintiff must show a probability of such harm. Nothing in the designated evidence before us supports the conclusion that Red Roof should have foreseen the probability that Purvis would be injured under these conditions.
    Thousands of roofing projects are completed each year without incident. In this case, Reichart had completed twenty-two roofing jobs for Red Roof Inns during 1992 without resultant injury. We conclude that Red Roof did not owe Purvis a non-delegable duty.

Id. cmt. a, at 376-77.

Restatement (Second) of Torts § 413, at 384-85 (1965).

Restatement (Second) of Torts § 416, at 395 (1965). Section 416 is part of "Topic 2. Harm Caused by Negligence of a Carefully Selected Independent Contractor" and rests upon rules of vicarious liability. Id. at 394.

Lunde, 290 N.W.2d at 476-77 (citation omitted).

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