Benjamin Odneal v. Circle Medical Management (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 31 2017, 8:54 am

regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven W. Etzler Francis A. Veltri
Malloy Etzler & Lawhead, P.C. Travelers Staff Counsel Indiana
Highland, Indiana Merrillville, Indiana
Paul T. Belch
Travelers Staff Counsel Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Benjamin Odneal, January 31, 2017
Appellant-Plaintiff, Court of Appeals Case No.
45A03-1609-CT-2037
v. Appeal from the Lake Superior
Court
Circle Medical Management, The Honorable William E. Davis,
Appellee-Defendant Judge
Trial Court Cause No.
45D05-1408-CT-155

Baker, Judge.

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[1] Benjamin Odneal appeals the trial court’s grant of summary judgment in favor

of Circle Medical Management (Circle Medical). He argues that the trial court

incorrectly determined that Circle Medical did not owe him a duty. Finding

that summary judgment was appropriately granted, we affirm.

Facts
[2] Odneal was an employee of Stericycle, Inc. (Stericycle), a medical waste

processing facility. Stericycle did business with Circle Medical, a dialysis

treatment center. In providing dialysis treatment, Circle Medical used and

needed to dispose of spent bloodlines, needles, syringes, and other medical

waste. Accordingly, Circle Medical entered into a Service Agreement with

Stericycle’s predecessor1 in May 2009. Stericycle would provide Circle Medical

with containers, Circle Medical would fill the containers with medical waste,

and Stericycle would transport those containers to its disposal facility.

[3] Pursuant to the Service Agreement, these containers were 96-gallon carts. The

Service Agreement provided that “[t]o ensure compliance with packaging

requirements and the safety of Service Provider’s employees, Service Provider

reserves the right to charge a minimum overweight penalty of $0.65 per lb.

when weights exceed 40 lbs. per container.” Appellant’s App. p. 195.

Stericycle provided an information sheet to Circle Medical that said that the

1
For ease of reading, we will refer to this predecessor simply as Stericycle.

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 maximum weight of the containers when full of waste should be no more than

150 pounds. Appellant’s App. 222.

[4] On August 30, 2012, Stericycle retrieved five waste containers from Circle

Medical, each of which weighed more than 150 pounds. Once the containers

were transported to Stericycle’s facility, Odneal started to pick up one of the

containers but realized that it was too heavy for him to lift. He asked a

coworker for help. As the two began picking the container up, the container

went off balance and Odneal was pulled into a railing. He suffered a lower

back injury, which required two lumbar surgeries and a spinal implant to

rectify.

[5] On August 15, 2014, Odneal filed a complaint against Circle Medical, claiming

that Circle Medical owed him a duty to avoid overfilling its waste containers

and that its breach of that duty caused his injury. On May 31, 2016, Circle

Medical filed a motion for summary judgment along with designated evidence,

to which Odneal responded. After a hearing, the trial court entered summary

judgment in Circle Medical’s favor on August 15, 2016. Odneal now appeals.

Discussion and Decision
[6] Our standard of review of a trial court’s grant of summary judgment is well

settled:

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure,
summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. When we review a grant of
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 summary judgment, our standard of review is the same as that of
the trial court. We consider only those facts that the parties
designated to the trial court. The Court must accept as true those
facts alleged by the nonmoving party, construe the evidence in
favor of the nonmovant, and resolve all doubts against the
moving party.

A trial court’s order on summary judgment is cloaked with a
presumption of validity; the party appealing from the grant of
summary judgment must bear the burden of persuading this
Court that the decision was erroneous. We may affirm the grant
of summary judgment upon any basis argued by the parties and
supported by the record.

Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007) (internal citations

omitted). To prove negligence, Odneal is required to show, among other

things, that Circle Medical owed him a duty. Mishler v. State, 730 N.E.2d 229,

231 (Ind. Ct. App. 2000). Absent a duty, there can be no breach of duty and no

recovery in negligence. Id. Whether a duty exists is generally a question of

law. Id.

[7] We find our decision in Ebbinghouse v. FirstFleet, Inc., 693 N.E.2d 644 (Ind. Ct.

App. 1998), to be instructive. In that case, the plaintiff worked for a

distribution company, which contracted with trucking companies to send goods

to their final destinations. Id. at 646. One day, the trucking company returned

a trailer to the distribution company, and as the plaintiff unloaded and cleaned

it, she slipped on a lid that had fallen on the ground. Id. She sued the trucking

company for negligence, but the trial court granted summary judgment against

her. Id.

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[8] In affirming the trial court, we recognized that while employers have a general

duty to use reasonable care to provide their own employees with a safe work

environment, employers do not owe such a general duty to the employees of

other companies. Id. at 647. We noted that after the trucking company

returned the trailer,

it was the sole responsibility of [the distributor] to open the sealed
trailer, to unload any returned merchandise, and to clean the
trailer of the empty totes, lids, and pallets. [The trucking
company] had no discretion to inspect the condition of the
interior of the trailers upon arrival at [the distributor] and
similarly had no control over how [the distributor]’s employees
carried out their responsibility to unload and clean the trailers.

Id. After also finding that the accident was not foreseeable and that public

policy did not support finding a duty, we affirmed. Id. at 648.

[9] In that case, however, we noted the following:

We find nothing in the record that indicates that [the trucking
company] was required by [the distributor] to strap down the
totes and lids or that [the trucking company] otherwise assumed
a duty to strap down the totes and lids. Even if we were to
conclude that [the trucking company] was required to take such
precautions or voluntarily undertook them, there is no evidence
that such action was for the benefit or safety of [the distributor]’s
employees.

Id. In the present case, Odneal focuses on the language in the Service

Agreement that provided Stericycle with the right to charge an “overweight

penalty of $0.65 per lb. when weights exceed 40 lbs. per container,” the purpose

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 of which was “[t]o ensure compliance with packaging requirements and the

safety of Service Provider’s employees . . . .” Appellant’s App. p. 195. Odneal

points out that a duty of care, the breach of which will support a negligence

action, may arise contractually. Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212,

1218 (Ind. Ct. App. 1983). In determining whether a duty exists, this Court will

give effect to the intent of the parties as reflected by the language of the

document. Id. Odneal argues that this provision in the contract evinces Circle

Medical’s intent to assume a duty to Stericycle’s employees to avoid overfilling

the containers.

[10] Odneal spends much of his brief attempting to prove that this provision was not

intended to compensate Stericycle for the added costs of heavier containers but

was rather intended solely to penalize Circle Medical for overheavy shipments.

We cannot agree with this argument, as the two concepts are economically

indistinguishable. It is impossible to say that the provision does one or the

other; it clearly does both. On the one hand, by requiring extra payment for

containers weighing over forty pounds, it discourages Circle Medical from

filling its containers with more than forty pounds of waste. On the other hand,

it also makes clear that Circle Medical is perfectly within its rights to fill

containers with more than forty pounds of waste, so long as Circle Medical is

willing to pay the extra charge.

[11] We find the existence of added compensation dispositive. If the Service

Agreement had said that Circle Medical, for the safety of Stericycle’s

employees, agreed to not fill the containers beyond a certain weight, then Circle

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 Medical would have assumed a duty not to do so. But the Service Agreement

instead set a price for added weight—in such a circumstance, Circle Medical’s

only duty regarding the weight of the containers was to pay the added cost of

any containers weighing more than forty pounds. Other than the existence of

this pricing mechanism, we find the present case to be on all fours with

Ebbinghouse.

[12] Odneal also argues that he was owed a duty as a third-party beneficiary of the

Service Agreement between Circle Medical and Stericycle. A third-party

beneficiary contract exists when (1) the parties intend to benefit the third party,

(2) the contract imposes a duty on one of the parties in favor of the third party,

and (3) the performance of the terms of the contract renders a direct benefit to

the third party intended by the parties to the contract. Gilliana v. Paniaguas, 708

N.E.2d 895, 898 (Ind. Ct. App. 1999). A party may use his status as a third-

party beneficiary as the basis of a duty in a negligence context. St. Paul Fire &

Marine Ins. Co. v. Pearson Const. Co., 547 N.E.2d 853, 857 (Ind. Ct. App. 1989).

[13] We find that Odneal is not a third-party beneficiary of the Service Agreement

because any benefits that accrue to him do so remotely, not directly. Circle

Medical and Stericycle did not contract together with the primary goal of

providing safety to Odneal; they contracted together with the primary goal of

exchanging a service for compensation. Although there is arguably some

benefit that Odneal receives from the contract—perhaps the financial

disincentive will encourage Circle Medical to pack the containers lightly, which

in turn will make Odneal’s job safer and easier—this is far from the type of

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 direct benefit required to create a third-party beneficiary contract. Accordingly,

this argument is unavailing.

[14] In sum, Circle Medical did not agree to refrain from filling containers with

more than forty pounds of material, it agreed to pay an extra fee for doing so.

Therefore, as a matter of law, Circle Medical did not owe Odneal a duty to not

fill the containers with overheavy contents. Nor was Odneal a third-party

beneficiary of the Service Agreement. Because Circle Medical did not owe

Odneal any duty, it cannot be held liable for negligence and summary judgment

was appropriately granted.

[15] The judgment of the trial court is affirmed.

Mathias, J., and Pyle, J., concur.

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