dissenting.
I respectfully dissent for the reason that the majority erroneously concludes that "[flor purposes of this action Mannon was the employee of both Driveco and Howmet." Maj. op. at 78.
Although an individual may be the employee of two employers, at one time as to one act, see New York Central R.R. v. Northern Ind. Pub. Serv. Co. (1966), 140 Ind.App., 79, 221 N.E.2d 442, the record supports a determination that Mannon was only Driveco's employee. Howmet, therefore, owed no duty to provide Mannon with a safe work environment.
Driveco paid Mannon's wages, and all of the drivers answered to Driveco. Only Dri-veco could hire, fire or discipline its drivers, and the record shows that Howmet merely leased the services of the drivers. As Man-non points out, Howmet did not own the truck that shipped its replicas, including the truck Mannon used at the time of the accident. Whiteford owned the truck, and it was responsible for all maintenance and repairs of the vehicle and equipment, except for the temperature monitoring device, which was Thermo King's responsibility. Although Howmet owned the temperature monitor, that device and all of the remaining equipment on the refrigeration unit were supplied, positioned and installed by Thermo King. It was logical for the trial court to conclude as a matter of law that Driveco was Mannon's only employer.
I also agree that the trial court properly entered summary judgment in Howmet's favor because there was no evidence creating a question of fact as to whether Howmet assumed a duty to Mannon. Isolated instances of providing safety precautions to workers at the job site have been held insufficient as a matter of law to create a factual question for a jury as to whether a duty has been assumed. See Robinson v. Kinnick (1989), Ind.App., 548 N.E.2d 1167; Teitge v. Remy Construction Co., Inc. (1988), Ind.App., 526 N.E.2d 1008; Lukowski v. Vecta Educational Corp. (1980), Ind.App., 401 N.E.2d 781, trans denied.
In Robinson, the plaintiff-roofer was in- | jured when he fell to the ground after slipping on ice. Robinson admitted seeing the ice prior to the accident. He sued the homeowners claiming that they negligently failed to provide him with adequate safety equipment or supervision. Summary judgment was entered for the homeowners on the ground that they owed no duty to Robinson. We affirmed, finding as a matter of law, that the homeowners had not assumed a duty to provide Robinson with a safe work place. In distinguishing other cases which reached a contrary result, we observed that:
"In each of the above cases, the entity sought to be charged with the assumption of a duty appointed safety inspectors, held regular safety meetings, inspected the job site on a daily basis, and directed that certain safety precautions be taken on the job site. These factors reveal a deliberate attempt to comtrol or actively supervise sofety at the job site. In the case at bar, however, the evidence in the record shows that the [homeowners] did not appoint a safety director to supervise the job site, did not hold safety meetings, and did not prescribe any safety precautions to be taken on the projects or provide written safety rules to persons on the site. Further, the [homeowners] did not conduct daily inspections of the project in general or of the roof in particular or advise any of the workers at the site about what safety equipment to utilize.... There was insufficient evidence as a matter of law to create a factual question for a jury as to whether the [homeowners] assumed a duty toward Robinson."
Id. at 1169 (emphasis supplied).
Despite evidence that the homeowners had taken the affirmative step of nailing toe boards to the area of the roof where the accident occurred, we noted that:
"It is true that various safety equipment was present at the job site. The [homeowners], however, did not require that the independent contractors utilize the equipment but rather merely made it available *75for their use if they so chose. The [homeowners] did not maintain written rules requiring the safety equipment be used or conduct safety meetings advocating the use of equipment. There is absolutely no evidence from which a reasonable juror could conclude that based upon this conduct the [homeowners] assumed a duty to provide Robinson with a safe place to work. With respect to the toe boards nailed on the roof, in the absence of any other evidence indicating the contrary, one or two instances of safety precautions taken by the defendant does not raise a jury question as to whether a duty was assumed."
Id. at 1170 (emphasis supplied).
As in Robinson, the record demonstrates that there were insufficient facts to present a jury question. While I am sympathetic to Mannon's plight, the record before us demonstrates that it was not Howmet's responsibility to provide her with a safe work environment, and the evidence does not show that Howmet assumed such a duty.
I would affirm the trial court's entry of summary judgment in favor of Howmet.