MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 14 2017, 8:35 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR
Robert J. Gabrielse APPELLEE/CROSS-APPELLANT,
Law Office of Robert J. Gabrielse BMW CONSTRUCTORS, INC.
DeMotte, Indiana Anthony R. Jost
Laura S. Reed
F. Joseph Jaskowiak James O. Giffin
Lauren K. Kroeger Riley Bennett Egloff LLP
Hoeppner Wagner & Evans LLP Indianapolis, Indiana
Merrillville, Indiana
ATTORNEYS FOR
APPELLEE/CROSS-APPELLEE,
NORTHERN INDIANA PUBLIC
SERVICE COMPANY
Brent E. Inabnit
Nicholas J. Derda
Sopko, Nussbaum, Inabnit &
Kaczmarek
South Bend, Indiana
ATTORNEY FOR APPELLEE/CROSS-
APPELLEE, PEKRON CONSULTING,
INC.
Scott B. Cockrum
Schererville, Indiana
ATTORNEY FOR CROSS-APPELLEE,
ATLANTIC PLANT SERVICES, LLC
David W. Pera
Buoscio, Pera & Kramer
Merrillville, Indiana
Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 1 of 12
ATTORNEYS FOR CROSS-
APPELLEE, AREA SHEET METAL,
INC.
Daniel W. Glavin
Kathleen M. Erickson
Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Julie A. Jabaay, Individually and June 14, 2017
as Personal Representative of the Court of Appeals Case No.
Estate of Troy Allen Jabaay, 45A05-1608-CT-1768
Deceased, Appeal from the Lake Superior
Appellant/Plaintiff, Court
The Honorable John M. Sedia,
v. Judge
Trial Court Cause No.
BMW Constructors, Inc., 45D01-1401-CT-34
Appellee/Cross-Appellant/Defendant,
Northern Indiana Public Service
Company, Atlantic Plant
Services, LLC, Area Sheet
Metal, Inc. and Pekron
Consulting, Inc.,
Appellees/Cross-Appellees/Defendants
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1608-CT-1768 | June 14, 2017 Page 2 of 12
[1] Julie A. Jabaay, individually and as Personal Representative of the Estate of
Troy Allen Jabaay (“Jabaay Estate”) 1 appeals the trial court’s grant of summary
judgment in favor of BMW Constructors, Inc. (“BMW”) and Northern Indiana
Public Service Company (“NIPSCO”). 2 We affirm. 3
Facts and Procedural History
[2] On December 1, 2012, the NIPSCO Schahfer Generating Station (“Station”) in
Wheatfield, Indiana, was damaged following an explosion. Pursuant to
existing service agreements, NIPSCO contacted various independent
contractors to conduct repairs to the Station. Those independent contractors
included BMW and Safway Services, LLC (“Safway”).
[3] Safway was hired to construct and maintain scaffolds. On December 1 and
December 2, 2012, a crew from Safway erected scaffolding on the east (“East
Scaffold”), west (“West Scaffold”), and south sides of the Station. Troy Jabaay
(“Troy”) was a seasoned union carpenter and had been building scaffolding for
approximately fifteen years. Because of his extensive experience, Safway had
selected him to be a “Competent Person” in 1997. (Appellant’s App. Vol. V at
183.) Troy had to complete training and take a certification exam to become a
1
We deny the Jabaay Estate’s request for oral argument via order issued contemporaneous with this opinion.
2
The Jabaay Estate does not challenge the trial court’s grant of summary judgment in favor of Atlantic Plant
Services, LLC (“Atlantic”); Area Sheet Metal, Inc. (“ASM”); and Pekron Consulting, Inc. (“Pekron”).
3
Because we affirm, we need not address BMW’s cross-appeal arguments regarding liability in the event we
were to reverse the trial court’s decision.
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Competent Person. As a Safway Competent Person, Troy had “a responsibility
to make decisions about what is safe and not safe with respect to scaffolds[.]”
(Appellant’s App. Vol. IV at 97-8.)
[4] Between 6:00 a.m. and 7:00 a.m. on December 4, 2012, Troy inspected the
West Scaffold at the Station as part of his duties. He initialed a yellow tag
attached to the West Scaffold indicating he had completed a safety inspection
and the West Scaffold was safe to use. After he completed these inspections,
Troy met with Dick Caldwell, the BMW day shift supervisor, who gave Troy a
note written by John Ceglarek, the BMW night shift supervisor, indicating work
done by BMW the night before. The hand-written note stated:
12-3-12 Nights
Dick
We got the old duct out from top of channel. Started cleaning
top flgs of channel box. Nipsco had us down for about 1 ½ hours
when starting C mill up.
We had to remove most of top scaffolding to get duct out.
You will need to have it put back to work on exp. joint flg.
Have a good day
John
P.S. Dick, we cut one up right on south west scaffold to get
bottom out. We remove =HANDRAIL= on channel level. This
needs to redone before using scaffolding.
(Appellant’s App. Vol. V at 156) (errors in original). Caldwell testified during a
deposition he let Troy
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know that I wasn’t real sure, but I thought that if they did
anything, it would have been to the east side because that’s the
side the piece was going to come out. So I basically just
apologized to Troy saying that I didn’t know what was going on
with this note, and if he could make more sense of it with the
note. Normally, I would just tell him, but me not understanding
this note, I give it to him to see if he could - - you know if it made
more sense to him.
(Appellant’s App. Vol. III at 75) (errors in original). Caldwell also testified
Troy told Caldwell that Troy would “take care of it.” (BMW App. Vol. II at
103.)
[5] Troy then alerted his crew and asked them to accompany him to the West
Scaffold. Troy climbed up the ladder to the West Scaffold. He was not wearing
a harness, which was required to maintain three points of contact for safety
reasons. Troy stepped off the ladder onto the handrail, which came loose at
one end. The handrail, with Troy on it, swung out from the end still affixed to
the West Scaffold. Troy fell thirty feet and died from his injuries.
[6] After the incident, the Indiana Occupational Safety and Health Administration
(“IOSHA”) investigated. IOSHA concluded Troy breached his duty as
Safway’s Competent Person to thoroughly and properly inspect the scaffolding,
and his failure to do so caused the incident that resulted in his death. Based on
their investigation, IOSHA cited Safway with a serious violation of 29 CFR §
1926.20(b)(2), indicating Safway
did not provide for frequent and regular inspections of the jobsite
and equipment by a competent person[, specifically] . . . On or
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about, December 04, 2012: The employers [sic] designated
competent person, on the site, failed to identify existing and
predictable hazards and/or take the necessary measures to
alleviate the hazards of scaffolding.
(BMW App. Vol. III at 124.) Safway filed an appeal of IOSHA’s decision,
arguing it was not responsible for the incident because Troy’s actions
constituted employee misconduct. On February 17, 2014, IOSHA dismissed
the citation against Safway based on Safway’s defense of employee misconduct.
[7] On April 22, 2013, the Jabaay Estate filed a civil complaint against BMW
alleging negligence. BMW filed a response naming NIPSCO, Atlantic, Safway,
and Troy as liable non-parties. On August 22, 2013, the Jabaay Estate
amended its complaint to include NIPSCO and Atlantic. BMW filed a
response naming ASM and Pekron as additional non-parties. On October 21,
2014, the Jabaay Estate again amended its complaint to include ASM and
Pekron as non-parties. All defendants separately filed motions for summary
judgment between May 2015 and March 2016. On April 25, 2016, the Jabaay
Estate filed a reply to NIPSCO and BMW’s motions for summary judgment.
Additionally, on April 25, 2016, BMW filed a response to its co-defendants’
motions for summary judgment arguing all defendants were entitled to
summary judgment or none of them were, and preserving the right to name any
co-defendants dismissed from the action as liable non-parties.
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[8] The trial court heard argument on the parties’ respective motions for summary
judgment on June 30, 2016, and July 13, 2016. On July 15, 2016, the trial court
granted summary judgment in favor of all defendants.
Discussion and Decision
[9] Our standard of review for summary judgment is well-established:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
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Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Therefore, for the trial court
to properly grant summary judgment, the movants must have “made a prima
facie showing that their designated evidence negated an element of the
nonmovants’ claims, and, in response, the nonmovants must have failed to
designate evidence to establish a genuine issue of material fact.” Cox v.
Mayerstein–Burnell Co., Inc., 19 N.E.3d 799, 804 (Ind. Ct. App. 2014). We will
affirm a trial court’s decision on summary judgment if it is sustainable on any
theory or basis found in the evidentiary matter designated to the trial court.
United Rural Elec. Membership Corp. v. Ind. Mich. Power Co., 648 N.E.2d 1194,
1196 (Ind. Ct. App. 1995), trans. denied. Summary judgment is rarely
appropriate in negligence actions. McCormick v. State, 673 N.E.2d 829, 832
(Ind. Ct. App. 1996).
[10] The tort of negligence is composed of three elements: “(1) a duty owed by the
defendant to conform its conduct to a standard of care necessitated by its
relationship with the [plaintiff]; (2) a breach of that duty; and (3) an injury
proximately caused by the breach.” Id. at 837. Here, we find the issue of the
proximate cause of Troy’s injury to be dispositive.
[11] It is well-established:
The Comparative Fault Act created a modified comparative fault
scheme in which “any contributory fault chargeable to the
claimant diminishes proportionately the amount awarded as
compensatory damages....” Ind. Code § 34-51-2-5. In addition,
“the claimant is barred from recovery if the claimant’s
contributory fault is greater than the fault of all persons whose
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fault proximately contributed to the claimant’s damages.” Ind.
Code § 34-51-2-6. For purposes of comparative fault, the term
“fault” includes “any act or omission that is negligent, willful,
wanton, reckless, or intentional toward the person or property of
others. The term also includes unreasonable assumption of risk
not constituting an enforceable express consent, incurred risk,
and unreasonable failure to avoid an injury or to mitigate
damages.” Ind. Code § 34-6-2-45(b) . . . Thus, one’s fault can
include an act or omission occurring either before or after the
fault of another.
Hopper v. Carey, 716 N.E.2d 566, 575 (Ind. Ct. App. 1999), trans. denied
(emphasis omitted). “The Comparative Fault Act entrusts the allocation of
fault to the sound judgment of the fact-finder.” Paragon Family Restaurant v.
Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). However, “at some point the
apportionment of fault may become a question of law for the court. But that
point is reached only when there is no dispute in the evidence and the factfinder
is able to come to only one logical conclusion.” Robbins v. McCarthy, 581
N.E.2d 929, 934 (Ind. Ct. App. 1991), reh’g denied, trans. denied.
[12] While there are multiple versions of what occurred in the days leading up to
Troy’s fall, there is no dispute regarding what happened between the time Troy
inspected the scaffolding and the time he fell to his death. The trial court
found:
Between the hours of six o’clock and seven o’clock a.m. on the
morning of December 4, 2012, Troy Allen Jabaay, employed as a
foreman by Safway, inspected the west scaffold located at the
Unit 15B Mill that had been built two days earlier by Safway and
initialed an inspection tag indicating that it was safe for use for
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all contractors during the day shift. Later that day, Troy climbed
the west scaffold and grabbed a horizontal scaffold bar. The
scaffold bar became dislodged and caused him to tragically fall
some thirty feet to his death.
*****
None of the parties have come forward with any evidence that
any of the defendants did anything to negligently modify the
scaffolding on the west scaffold after Troy’s inspection, which did
not identify any loose handrails and determined that the scaffold
was safe for use, that would establish the existence of a genuine
issue of material fact sufficient to preclude summary judgment.
(Appellant’s App. Vol. II at 37, 42.)
[13] The Jabaay Estate argues the trial court’s focus on the time between Troy’s
inspection and Troy’s fall is an error, and that we should instead consider their
arguments regarding alleged duties undertaken by NIPSCO and BMW either
gratuitously or by contract. They also argue there are genuine issues of material
fact whether Troy adhered to certain safety regulations and whether those
regulations were applicable to the situation. None of that is of consequence, as
Troy’s actions caused his death.
[14] When Troy inspected the scaffold between 6:00 a.m. and 7:00 a.m. on
December 4, 2012, he initialed the yellow safety tag, indicating he had
inspected the scaffold. (See BMW Conf. App. Vol. II at 84) (testimony
regarding inspection process). Troy was a Competent Person for Safway,
which required him to complete training and pass a certification exam.
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Through this designation, he had “a responsibility to make decisions about
what is safe and not safe with respect to scaffolds[.]” (Appellant’s App. Vol. IV
at 97-8.) Simply put, as a Competent Person, Troy himself had a duty to ensure
the scaffolds were safe that day.
[15] There is no evidence anyone accessed the scaffolding between Troy’s inspection
and Troy’s fall. Therefore, the only explanation for the unsafe condition which
caused Troy’s death, the loose bar on the West Scaffold, is Troy’s negligent or
incomplete safety inspection. We need not examine the actions of other parties
prior to that inspection, because even if their actions were negligent, those
negligent actions were not the proximate cause of Troy’s death, which occurred
after Troy declared the scaffold safe for use. See McKinney v. Public Service Co. of
Indiana, Inc., 597 N.E.2d 1001, 1005 (Ind. Ct. App. 1992) (“A negligent act or
omission is the proximate cause of an injury if the injury is a natural and
probable consequence which, in light of the circumstances, should reasonably
have been foreseen or anticipated, regardless of whether the earlier negligence
concurs with other proximate causes of injury[.]”), reh’g denied, trans. denied. As
the undisputed evidence negates the possibility that any other defendant could
have been the proximate cause of Troy’s injury, the Jabaay Estate cannot be
successful in its negligence action.
Conclusion
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[16] As Troy’s negligence in inspecting the scaffold was the proximate cause of his
death, the trial court did not err as a matter of law when it granted summary
judgment in favor of NIPSCO and BMW. Accordingly, we affirm.
[17] Affirmed.
Najam, J., and Bailey, J., concur.
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