PSI Energy v. Roberts Mesothelioma Case: Premises Liability Theory

Read the analysis of the Opinion in PSI Energy v. Roberts, in which the premises liability theory in the Merrill case is discussed. Roberts, an insulator by trade, was exposed to asbestos in his workplace, and was ultimately diagnosed with mesothelioma.

In Merrill, the landowner, Knauf, discovered that the roofs on its warehouses needed repairs. Id. at 1261. Knauf hired Ellerman Roofing to perform the repairs. Id. at 1261-1262.

Knauf repeatedly warned Ellerman Roofing’s owner and employees that the roofs had skylights and a Knauf employee had fallen through a skylight years earlier. Id. at 1262. During the repairs, Merrill, an employee of Ellerman Roofing, was distracted by a coworker, stepped onto a skylight, and fell through it. Id.

In reviewing the trial court’s grant of summary judgment to Knauf, we discussed Merrill’s premises liability theory. Id. at 1264-1265. Merrill argued that Knauf was liable because it was under a duty to keep the property in a reasonably safe condition for business invitees, including the employees of independent contractors. Id. at 1265.

We noted that Knauf had repeatedly warned Ellerman Roofing of the skylight’s dangers and “[t]he warnings to Merrill’s superiors were warnings to Merrill, ‘the employment relation permitting a reasonable assumption that such notice will be communicated in the ordinary course to all employees on the work.’” Id. (quoting Howard, 509 N.E.2d at 205).

Furthermore, Merrill admitted that he knew that the skylights were dangerous. Id. Thus, under Sections 343 and 343A of the Restatement, “Knauf could be liable for Merrill’s injuries only if Knauf should have anticipated that Merrill would fail to protect himself despite his knowledge and if, despite such, Knauf failed to exercise reasonable care to protect Merrill.” Id.

In determining this issue, we consider the “purpose and intent of the invitation . . . and the comparative knowledge of the parties.” Id. We held that Knauf was not liable to Merrill, because under the circumstances, Knauf could not have anticipated such events given the circumstances surrounding the invitation and the comparable knowledge of the parties. Id. at 1266.

We find Merrill distinguishable from the current matter for a number of reasons. First, Knauf repeatedly warned the roofing company’s owner that the skylights were dangerous. Here, PSI did not warn ACandS or its employees that the asbestos dust that PSI’s employees were generating was dangerous.

Additionally, and most importantly, Knauf had no notice that Merrill or other roofing company employees were walking on skylights and not taking precautions to protect themselves. Here, over the period that Roberts and others were working on the premises, PSI had actual notice and knowledge that the asbestos workers were not taking precautions to protect themselves.

Courtesy of the Indiana Court of Appeals and the State of Indiana

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