PSI Energy, Inc. v. Roberts

Brief Fact Summary.

Plaintiff contracted mesothelioma from working with asbestos. Plaintiff sued Defendant for damages, alleging that the company should be held vicariously liable for the negligence of its independent contractor.

Synopsis of Rule of Law.

In Indiana, working with asbestos is not an inherently dangerous activity and anyone hiring an independent contractor will not be held strictly liable for injuries sustained from exposure to it.

Facts.

William Roberts (Plaintiff) was employed by Armstrong Contracting and Supply Company (Armstrong), the nation’s largest insulation contractor at the time. His duties involved the handling, installation, and removal of asbestos-containing insulation at power-generating facilities owned by PSI Energy, Inc. (Defendant), one of Armstrong’s customers. As a result of his handling of the asbestos-containing insulation, Plaintiff contracted mesothelioma, a usually malignant form of cancer. Plaintiff sued Defendant for damages, alleging that the company should be held vicariously liable for the negligence of its independent contractor, Armstrong, and argued that handling asbestos-containing insulation constituted an “intrinsically dangerous” activity.

Issue.

Whether in Indiana, working with asbestos is an inherently dangerous activity and anyone hiring an independent contractor will not be held strictly liable for injuries sustained from exposure to it.

Held.

No. In Indiana, working with asbestos is not an inherently dangerous activity and anyone hiring an independent contractor will not be held strictly liable for injuries sustained from exposure to it.

Dissent.

While the majority is correct in its holding of the case, it incorrectly found that working with asbestos is not intrinsically dangerous. The Restatement (Second) of Torts § 427A, states that “[o]ne who employs an independent contractor to do work which the employer knows or has reason to know to involve an abnormally dangerous activity, is subject to liability to the same extent as the contractor for physical harm to others caused by the activity.” The purpose behind this rule is that an employer who hires an independent contractor to perform intrinsically dangerous work should not escape liability for the abnormal danger created by the activity the employer set in motion. An intrinsically dangerous activity is one where the risk cannot be fully eliminated. The Restatement cites the examples of escaping lions and urban blasting as abnormally dangerous activities. Obviously, such risks can be reduced somewhat with due precaution, but they cannot be eliminated or even significantly reduced. The same is true of working with asbestos. The majority asserts that “precautions could have minimized Plaintiff’s exposure to asbestos” to justify its conclusion that “working with asbestos is not intrinsically dangerous.” But minimizing the risk is not enough. The precautions taken must be able to eliminate the risk, or significantly reduce it. The risk of asbestos workers contracting mesothelioma cannot be eliminated nor significantly reduced.

Discussion.

Generally, independent contractors who sustain injuries while engaged in “inherently dangerous” activities may bring suit against another on the theory of strict liability. This exception to the traditional non-liability for the torts of independent contractors does not require a showing of negligence on the part of the company hiring the independent contractor and instead imposes liability for activities that are dangerous by their nature. Here, Plaintiff argues that working with asbestos is intrinsically dangerous thus requiring the imposition of strict liability. In Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989), the court described asbestos fibers as “an inherently dangerous substance…a toxic substance…an inherently dangerous product…and a hazardous foreign substance.” Id. at 384-86. Defendant correctly argues that while asbestos is an inherently dangerous substance, working with it is not intrinsically dangerous and any danger associated with the handling of the substance may be minimized.