PSI Energy, Inc. v. Roberts

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 49A02-0210-CV-888.

William Roberts contracted mesothelio-ma as a result of his work with asbestos-containing insulation as an employee of Armstrong Contracting and Supply Company (ACandS). Much of his work over a thirty-nine year career was at power generation facilities of PSI Energy, Inc. Roberts sued PSI and others on both vicarious liability and premises Hability theories. A jury found PSI thirteen percent at fault without specifying which theory supported that result.

We hold that PSI is not vicariously liable for the negligence of its independent contractor ACandS. We also hold that as a general proposition a landowner or other possessor of real estate harboring a potentially dangerous condition is not liable to an independent contractor or its employees for injuries sustained by reason of the condition the contractor is employed to address. Under the circumstances of this case, however, there was sufficient evidence to support the jury's verdiet in favor of Roberts and his wife under the premises liability instructions.

Factual and Procedural Background

Roberts worked for ACandS as an insulator for most of his life. He started part-time in 1956, and worked full-time from 1957 through 1986 and from 1989 through 1991. He retired from full-time employment in 1992, but continued to work part-time until 1997. ACandS was the nation's largest insulation contractor over this period. Roberts worked with insulation containing asbestos from the time he started *949working in 1956 until his employer stopped using it in the early 1980s.

ACandS supplied its insulation services to a variety of industrial and other customers and assigned employees, including Roberts, to install and service insulation at a number of facilities. Roberts routinely installed, handled, removed, and otherwise worked directly with insulation containing asbestos. He knew that he was working with asbestos insulation and could recognize asbestos on sight. He estimated that over the course of his career he spent fifteen to eighteen years at various generating stations owned by PSI, the electric utility servicing a large part of Indiana.

In the late 1960s and into the 19705, Roberts often worked at PSI's Dresser generating station. According to Roberts, the asbestos insulation at this station was in very poor condition, "torn up," and "rag-gy." In performing his own work, Roberts was often exposed to asbestos, and he was also exposed to the material as the result of activities of PSI employees and other PSI contractors. Roberts and others who worked with him often had no protective clothing, masks, or respirators. PSI's corporate representative testified that he frequently saw ACandS's insulators working with asbestos at PSI plants in the 1960s and 1970s, but never saw them take any precautions to protect themselves from breathing asbestos dust.

A link between asbestos exposure and mesothelioma was established as early as the 1940s and 1950s. The evidence presented at trial indicated that ACandS was or should have been aware of asbestos-related health problems at least by the early 1960s. Roberts was a member of the Local 18 of Heat and Frost Insulators International and received its publications beginning in 1958. Articles in the union's magazines urged asbestos workers to use safety equipment, and "green sheets" included with the magazines from 1969 through 1976 discussed asbestos-related health problems. Roberts testified that he did not learn the true dangers of asbestos until the 1980s and that ACandS did not supply masks for the employees until the 1970s. He asserted that sometime in the 1970s, he noticed that asbestos products were being phased out, but no one told him it was for safety reasons.

Roberts was diagnosed with peritoneal mesothelioma in 2001.1 In August of that year, he and his wife sued for Roberts's injury and for Mrs. Roberts's loss of consortium. They sought damages from PSI and sixty other defendants, including both manufacturers of asbestos and other landowners. As to the landowners, the complaint asserted both a premises liability theory and also that the Roberts's claims fell under exceptions to the general rule that a principal is not vicariously liable for the acts of ACandS, its independent contractor.

The case was tried to a jury on both counts. The remaining defendants, namely PSI, objected to some but not all of the trial court's instructions on the Roberts's theories of liability. They also moved for judgment on the evidence at the close of the Roberts's case and again at the close of all of the evidence. The trial court denied both motions and submitted the case to the jury. By this point in the trial, *950most defendants had settled and the only remaining defendants were PSI and three other premises owners, Eli Lilly, a pharmaceutical manufacturer, Central Soya, a food processor, and Kroger, a retail grocery chain. The jury returned a general verdict, finding compensatory damages of $2,800,000 for Roberts, who died after trial began, and $1,000,000 for Mrs. Roberts. The jury rejected the plaintiffs' claim for punitive damages. The jury allocated fault thirteen percent to PSI, twelve percent to Roberts, and none to the other three defendants. The remaining seventy-five percent was allocated to sixteen nonparties including thirty-six percent to ACandS. The trial court then entered judgment against PSI for $364,000 to Roberts and $130,000 to his wife. PSI appealed and the Court of Appeals held that PSI could be held liable as a premises defendant, and therefore affirmed the judgment based on a general judgment. PSI Energy, Inc., v. Roberts, 802 N.E.2d 468, 479 (Ind.Ct.App.2004). This Court granted transfer. PSI v. Roberts, 812 N.E.2d 806 (Ind.2004).

Standard of Review

PSI challenges the denial of its motion for judgment on the evidence under Indiana Trial Rule 50 and the denial of its motion to correct error under Indiana Trial Rule 59. In reviewing a trial court's ruling on a motion for judgment on the evidence, the appellate court is to consider only the evidence and reasonable inferences most favorable to the non-moving party. Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind.1993). In considering a motion to correct error based on a claim of insufficient evidence, if the trial court determines that there is a total absence of evidence supporting a necessary element of the plaintiff's case the court should enter judgment for the defendant. State v. Emry, 753 N.E.2d 19, 21 (Ind.Ct.App.2001). On the other hand, if there is some evidence to support the jury's verdict, the trial court must determine whether the jury's verdict is supported by sufficient evidence without weighing the evidence or judging the credibility of the witnesses. Id. Both rules mandate that the motion be granted when there is insufficient evidence under the law to support a verdict. Huff v. Travelers Indem. Co., 266 Ind. 414, 363 N.E.2d 985, 990 (1977).

The jury returned a general verdict. PSI challenges the verdict arguing that the evidence is not sufficient to support it, but does not challenge the jury instructions on appeal. In this procedural posture, "a general verdict will be sustained if the evidence is sufficient to sustain any theory of lability." Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind.1988) (citing In re Estate of Fanning, 263 Ind. 414, 417, 388 N.E.2d 80, 82 (1975); City of Indianapolis v. Pollard, 241 Ind. 66, 72, 169 N.E.2d 405, 408 (1960)).

I. Vicarious Liability for Acts of ACandS

The parties agree that ACandS provided its services to PSI as an independent contractor. "The long-standing general rule has been that a principal is not liable for the negligence of an independent contractor." Carie v. PSI Emergy, Inc., 715 N.E.2d 858, 855 (Ind.1999). Indiana law recognizes five exceptions to this general rule, based on public policy concerns, which militate against permitting a principal to absolve itself of responsibility for some activities by conducting them through an independent contractor. Id. Roberts contended in the trial court that two of these exceptions applied here: (1) the "intrinsically dangerous" exception-"where the contract requires the performance of intrinsically dangerous work," and (2) the "due precaution" exception-"where the act will probably cause injury to others unless due precaution is taken." *951As is explained below, the trial court instructed on both theories. As Carie pointed out, the principal's liability in these exceptional situations is based on the idea that the principal "is in the best position to identify, minimize, and administer the risks involved in the contractor's activities." Id. Here, however, PSI contends with considerable force that it and the other owners of facilities containing ashes-tos were in no better position than ACandS to evaluate the risks inherent in working with insulation containing asbestos.

A. Inability of the Principal to the Independent Contractor or its Employees

The term used to describe these exceptions-"nondelegable duty"-has historically been developed in the context of claims that the negligence of an independent contractor should be attributed to the principal. Dan B. Dobbs, The Law of Torts § 337, at 921-23 (2001). In that context, the Court of Appeals, following precedent in the majority of other states, had concluded in a number of cases that employees of the independent contractor could not invoke these exceptions to assert liability of the principal for acts of their employer as an independent contractor of the principal. Lowisville Cement Co. v. Mumaw, 448 N.E.2d 1219, 1222 (Ind.Ct. App.1983); Johns v. New York Blower Co., 442 N.E.2d 8382, 886 (Ind.Ct.App.1982); Hale v. Peabody Coal Co., 168 Ind.App. 336, 344, 348 N.E.2d 316, 324 (1976). If that doctrine is followed in Indiana, it would preclude Roberts's claim against PSI to the extent it is based on negligence of ACand$ in failing to provide adequate safeguards or because ACandS employees were thought to be engaged in inherently dangerous activities.

Roberts cites Bagley v. Insight Communcations, Co., 658 N.E.2d 584, 587-88 (Ind.1995), for the proposition that an employee of an independent contractor may recover from the principal for negligence of the contractor or a fellow employee of the contractor. Richard Bagley was an employee of Sam Friend, a subcontractor for a cable installer, Steve Crawford. Crawford, in turn, was acting as a subcontractor for Insight Communications, a central Indiana cable television company. Bagley was injured in the course of his work for Friend and brought suit against Insight, Friend, and Crawford arguing, among other things, that Insight and Crawford were negligent in hiring Friend as their subcontractor. This Court stated the issue before it as "may an independent contractor's employee, injured on the job as a result of the contractor's conduct, recover damages from a party who negligently hired the contractor, notwithstanding the general rule that one who uses an independent contractor will not be liable for the acts of that contractor?" Id. at 584. Negligent hiring focuses on the negligence of the principal in selecting the contractor. In contrast, the previously defined exceptions to the general rule of nonliability for negligence of an independent contractor had found the principal liable not for its own negligence, but for negligence of its contractor in carrying out a "nondelegable duty" of the principal. Bagley summarily affirmed the Court of Appeals in rejecting the claim that Insight or Crawford "had breached a duty to provide proper safety procedures" but went on to address "the negligent hiring issue." Id. at 586.

After acknowledging that some states and the Restatement (Second) of Torts § 411 (1965) permitted a claim for negligent hiring, the Court did not adopt that general doctrine under Indiana law. Rather, it held that liability for negligent *952selection of a contractor could be imposed under the same cireumstances that were recognized as exceptions to the rule of nonliability for negligence of the contractor. Bagley, 658 N.E.2d at 587. This permitted a claim for "failure to exercise reasonable care to employ a competent and careful contractor" if the activity to be conducted fell within one of the five exceptions. Id. We thus have Indiana law under Bagley recognizing claims for failure to exercise care in the selection of a contractor under the same cireumstances as the law imposes potential liability for the actions of the contractor, even if carefully selected.

The Court then considered whether the negligent hiring claim could be asserted by an employee of the contractor. The Court noted the earlier line of decisions by the Court of Appeals that held that these five exceptions permitted only third parties, not the contractor or its employees, to assert the principal's liability for acts of the contractor.2 Acknowledging these cases, the Bagley court held "such restriction of the exceptions to exclude injured workers is contrary to the purpose of the exceptions and is not compelled by their underlying policy concerns." Id. at 588. The Court stated, "our objective is no less to protect workers who may be exposed to such risks than it is to protect non-employee third parties.... Where a contractor's employer is responsible for a non-delega-ble duty, the contractor's injured worker should not discriminately be deprived of access to full compensatory damages but should have recourse equal to that of an injured bystander." Id. The Court found Bagley's negligent hiring claim to fit the exception for acts to be performed by the independent contractor that will probably cause injury to others unless "due precaution" is taken. So viewed, Bagley's claim failed because Bagley was injured when a fellow employee slipped and fell on him from a ladder while he was driving a stake in the ground. There was no probability that injury would occur from his work, which consisted of simply driving a stake into the ground and no customary precautions were omitted. Accordingly, the requirements of this exception were not met. *953It was therefore unnecessary for Bagley to address whether the other defendants were negligent in selecting Bagley's employer.

Because it addressed a negligent hiring claim, Bagley did not directly address the question whether an employee of an independent contractor may recover from the principal for the negligence of the contractor without any negligence of the principal in selecting the contractor. The language in Bagley, though directly addressing only negligent hiring requiring negligence of the principal, may fairly be read to apply to liability for acts of the contractor under the five exceptions. However, Bagley did not face the issue of a claim by a worker injured by the very condition the worker's employer was contracted to address. That is essentially what Roberts asserts here.

Hiring of independent contractors to do work that may be described as "probable" to cause injury unless "due precautions" are taken occurs frequently in a technologically advanced society. If the principal has knowledge of some undisclosed risk factor not known to the contractor, there may be liability for failure to alert the contractor. See Restatement (Second) of Torts, § 348. Similarly, as Bagley held, at least under some cireum-stances, negligent selection of a contractor may expose a principal to liability. But if the law imposed on the principal lability for failure to supervise or monitor the contractor's activities, the result is added cost for minimal benefit. We think that to the extent an independent contractor is employed to redress or correct a problem for the principal, even if the contractor's activity may be viewed as either intrinsically dangerous or may require precautions, employees of the contractor have no claim against the principal based solely on either acts of the contractor or the condition to be remedied, or some combination of both. The contractor is presumably best equipped to evaluate the necessary precautions and determine the standard of ordinary care. See Peone v. Regulus Stud Mills, 113 Idaho 374, 744 P.2d 102, 107 (1987) (logging contractor is in a better position than a sawmill operator to assess the risks of falling trees); Restatement (Second) of Torts § 418, emt. b. Employees of the contractor should have no claim against a principal for their own or the contractor's failure to use ordinary care in carrying out the contractor's assignment. Nor should a principal be liable to a contractor or its employees simply by reason of employing the contractor to engage in inherently dangerous activity. We hold therefore that in the absence of negligent selection of the contractor, an employee of the contractor has no claim against the principal based solely on the five exceptions to the general rule of nonliability for acts of the contractor.

B. Liability for "Intrinsically Dangerous" Activities

We also agree with PSI that recovery under the inherently dangerous exception was not supported by the evidence. The jury was instructed that:

the law imposes a duty on a landowner 3 if the work to be performed is intrinsically dangerous. Work is "intrinsically dangerous" if the danger exists in the doing of the activity regardless of the method used. The work is intrinsically dangerous if the risk of injury cannot be *954eliminated or significantly reduced by taking proper precautions.

Roberts argues that when he worked at PSI, he performed intrinsically dangerous work that is not delegable to an independent contractor. PSI does not challenge this instruction as an accurate statement of the law. Rather, PSI contends the evidence does not support the verdiet.

For the reasons given in Part D below, Roberts is not estopped from arguing that working with asbestos was intrinsically dangerous despite his simultaneous contention that PSI is liable for failure of ACandS to take due precautions to avoid the injury. We conclude, however, that the evidence does not support recovery on this theory. "The term "inherently or intrinsically dangerous has been defined as work necessarily attended with danger, no matter how skillfully or carefully it is performed." 41 Am.Jur.2d Independent Contractors § 54 (1995); see Shell Oil Co. v. Meyer, 705 N.E.2d 962, 978 (Ind.1998) (work is intrinsically dangerous if the danger exists in the doing of the activity regardless of the method used). Unlike the other four exceptions to the nonliability of the principal, the "inherently dangerous" exception is normally associated with strict liability and does not require negligence on the part of the contractor. Dobbs, supra § 337, at 921. It imposes liability for activities that are dangerous by nature, not merely because they are carried out in a risky manner. For example, if the enterprise hires an independent contractor to dust crops with poison, it is liable for damage to neighbors' crops without regard to negligence. Id.

Roberts asserts that asbestos itself is intrinsically dangerous and "any work that causes inherently dangerous fibers to enter the breathing space of humans is intrinsically dangerous work." He points to Covalt v. Carey Canada, Inc., 548 N.E.2d 382 (Ind.1989), in which this Court described asbestos fibers as "an inherently dangerous substance ... a toxic foreign substance an inherently dangerous product ... and a hazardous foreign substance." Id. at 384-86. Roberts asserts that there is nothing that can make asbestos fibers safe. PSI responds that although asbestos may be an inherently dangerous substance, it does not follow that working with material containing asbestos is intrinsically dangerous work. PSI asserts that the evidence at trial demonstrates that the dangers of working with asbestos could have been minimized if Roberts had taken proper precautions. Roberts himself asserted liability based on the failure to use "due precautions" exception discussed in Part I.C. This assumes that injury can be significantly reduced and, as PSI points out, is inconsistent with the claim that the work is inherently dangerous. Dr. Michael Ellenbecker, an industrial hygiene expert called by Roberts, testified to the methods available at the time Roberts was exposed to asbestos that could have been employed to reduce his exposure. He described the possibility of substituting other insulation materials for asbestos, the practice of isolating the asbestos fibers, and other control and prevention measures. Dr. Ellenbecker testified "it's possible to perform an installation where the hazards are minimized, but when we're talking about mesothelioma, I think it's difficult to do any activities with asbestos where you completely eliminate the hazard." Roberts argues that this testimony shows that performing asbestos work is an intrinsically dangerous activity because mesothelioma can be caused by very small exposures to asbestos. He reasons that because asbestos-related diseases are often terminal and can be caused by very small exposures, it follows that *955working with asbestos is intrinsically dangerous.

We agree that working with asbestos can be perilous, but that is not enough to render it intrinsically dangerous as that term is used to establish lability for actions of an independent contractor. For example in McDaniel v. Business Investment Group, Ltd., 709 N.E.2d 17 (Ind.Ct.App.1999) trans. denied, an employee working on a sewer line in a 9 foot deep trench was killed when the sides of the trench caved in. The Indiana Court of Appeals held that trenching is not intringi-cally dangerous work because "although it can be dangerous, the use of proper procedures renders the work relatively safe." Id. at 21. Roberts asserts that whether the danger from asbestos work could have been significantly reduced is itself a question of fact for the jury. If proper precautions can minimize the risk of injury, then the activity is not intrinsically dangerous. See Carie v. PSI Energy, Inc., 694 N.E.2d 729, 785 (Ind.Ct.App.1998), affirmed in part and vacated in part by, Carie v. PSI Emergy, Inc., 715 N.E.2d 853 (Ind.1999) (quoting Demneau v. Ind. & Mich. Elec. Co., 150 Ind.App. 615, 620, 277 N.E.2d 8, 12 (1971)). Here, it seems agreed by all that precautions could have minimized Roberts's exposure to asbestos. Indeed, as explained below, this was the premise of one of Roberts's principal theories of liability. Therefore, we conclude that working with asbestos is not intrinsically dangerous such that anyone hiring a contractor to address it incurs strict liability for injuries sustained from exposure to it. For this second and independent reason, Roberts's claim fails under the independent contractor liability theory. We also recognize, as the dissent points out, that the consequences of meso-thelioma can be horrific. But that does not render asbestos intrinsically dangerous. The same is true of electricity and a number of other substances that, if mishandled, can be dangerous.

C. Due Precaution

Roberts contends that PSI could have been found liable for his injuries under the "due precaution" exception to the general rule of non-liability for acts of independent contractors. Sometimes referred to as the "peculiar risk" doctrine, this exception imposes liability on a principal where the act to be performed will "probably" cause injury to others unless due precaution is taken. Carie, 715 N.E.2d at 856; Bagley, 658 N.E.2d at 586. This exception requires that, at the time of engaging the contractor, the principal should have foreseen that the performance of the work or the conditions under which it was to be performed would, absent precautionary measures, probably cause injury. Carie, 715 N.E.2d at 856; McDaniel, 709 N.E.2d at 22. Application of this exception therefore depends on the probability of injury from the risk and its foreseeability by the principal. This doctrine does not render the principal liable for the contractor's failure to take normal precautions incident to the activity to be carried out. Thus, a homeowner has no liability for an electrician's failure to take the normal precaution of breaking a cireuit before touching the wiring. The MceDamiel court explained, "the exception applies only when the risk involved is something more than the routine and predictable hazards generally associated with a given occupation: it must be a risk unique to the circumstances of a given job." 709 N.E.2d at 22. "It is not concerned with taking routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may arise in the course of the contemplated work. Such precautions are the responsibility of *956the contractor." Restatement (Second) of Torts, § 418 emt. b.

The trial court instructed,

the law imposes a duty on a landowner [read "principal"] if the work to be performed will probably cause injury to others unless due precautions are taken to avoid harm. The essence of this exception is the foreseeability of both the peculiar risk involved in the work and the need for special precautions. For purposes of this exception, the phrase 'peculiar risk' refers to the risk of a particularized harm specific to the work being performed or the conditions under which it is performed. Moreover, the exception applies only when the risk involved is something more than the routine and predictable hazards generally associated with a given occupation: it must be a risk unique to the circumstances of a given job.

PSI argues that exposure to asbestos materials at PSI job sites did not present a "peculiar risk" to an asbestos worker who worked with and around asbestos materials on a daily basis in the normal course of his trade. PSI points out that mesothelioma and other asbestos-related diseases are much more common in asbestos workers than in the general population. PSI contends these disorders are therefore "routine and predictable" hazards of asbestos insulation work. Roberts counters that mesothelioma has a very long latency period and Roberts did not know the danger at the time, so the danger in working with asbestos was neither routine nor predictable. Roberts's claim thus seeks to embrace the unforeseeability of the risk and at the same time attribute to PSI liability for failing to foresee it. We think that absent unusual cireum-stances at a given workplace, industry standards are applicable measures of the "routine precautions" that are the responsibility of the contractor, and injuries or disorders that are usual to a given occupation are not within the "due precaution" exception. McDamiel, 709 N.E.2d at 28.

Roberts argues that even if unusual risk is required, PSI meets that test because his exposure to asbestos was more severe at PSI sites than at other jobsites and therefore working at PSI created a peceu-liar risk. PSI counters that there is no evidence that working at PSI involved risks unique or distinguishable from the general risk Roberts faced on a daily basis in the normal course of his profession. Roberts did the majority of his work on PSI property. He points to the duration, intensity, and volume of asbestos at PSI as unique, and argues that the high heat at PSI caused him not to wear a mask. He also points to evidence that PSI's workers kicked up dust, and that the asbestos insulation at PSI was in worse condition than that at other locations.

We do not believe these facts establish that PSI created unusual risks as applied to an insulator. They establish at most a higher incidence of qualitatively identical hazards. And it is clear that working with any level of asbestos can be associated with mesothelioma. As we recently observed "the normal, expected use of asbestos products entails contact with its migrating and potentially harmful residue." Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 976 (Ind.2002). In sum, the record is undisputed that wherever Roberts may have worked as an insulation contractor, the risk was the same-that of breathing asbestos fibers and contracting mesothelio-ma. At most, PSI created a quantitatively higher risk, but not a risk unique to PSI, and not a risk requiring qualitatively different precautions from those generally associated with asbestos.

*957D. Judicial Estoppel

PSI asserts that because Roberts argued at trial that his illness could have been prevented with the use of available safety precautions, he is now judicially estopped from arguing that asbestos work is intrinsically dangerous. "Judicial estoppel 'prevents a party from asserting a position in a legal proceeding inconsistent with one previously asserted." Meridian Ins. Co. v. Zepeda, 734 N.E.2d 1126, 1133 (Ind.Ct.App.2000) (quoting Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind.Ct.App.1998)), trans. denied. A party may properly plead alternative and contradictory theories, but judicial estoppel precludes a party from repudiating assertions in the party's own pleadings. Marques v. Mayer, 727 N.E.2d 768, 778 (Ind.Ct.App.2000), trams. denied. Because application of the intrinsically dangerous exception requires a showing that the risk created by the work could not be prevented or minimized, PSI says, "having prevailed on the theory that Roberts's illness could have been prevented through the use of available industrial hygiene techniques, Roberts is es-topped from arguing on appeal that his illness was not preventable." Roberts counters that he argued that his disease could have been prevented by substitution of non-hazardous insulation for asbestos insulation. If this had been done, Roberts argues that he would not have been engaged in intrinsically dangerous work because he would not have been working with asbestos. We agree that Roberts is not precluded from arguing that working with asbestos is intrinsically dangerous and that his disease could have been prevented by substitution of another insulating material. PSI did not argue in the trial court that Roberts was judicially es-topped from presenting this theory and does not object on appeal to the instructions to the jury on the intrinsically dangerous exception. PSI argued in objecting to the jury instructions on "intrinsically dangerous" that "it is the entire theory of plaintiffs' case that plaintiffs' disease could have been prevented." We think the trial court could fairly take this as an objection that the instruction is not supported by the evidence.

E. Conclusion as to Liability for Actions of an Independent Contractor

In sum, Roberts has no claim against PSI for activities of ACandS as PSI's independent contractor because (a) the injuries he suffered came from a situation he was employed to address, (b) asbestos is not "inherently dangerous" as that term is used in the exception to nonliability for acts of independent contractors, and (c) the injuries he sustained are common among workers in his industry and the necessary precautions he identified are the responsibility of his employer, not PSI.

II. Premises Liability

Roberts argues that PSI can be held liable for his injuries because Roberts was PSI's business invitee and PSI breached its duty of care as a landowner. As a general rule, a property owner has no duty to furnish the employees of an independent contractor a safe place to work, at least as that duty is imposed on employers. Merrill v. Knauf Fiber Glass, GmbH, 771 N.E.2d 1258, 1264 (Ind.Ct.App.2002), trans. denied. The property owner must however maintain the property in reasonably safe condition for business invitees including independent contractors and their employees. Indiana has adopted the Restatement (Second) of Torts formulation of landowners' liability to workers on the premises. Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind.1990). As the Restatement (Second) of Torts explains:

A possessor of land is subject to liability for physical harm caused to his invitees *958by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(ec) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts, § 348. Further, section 348A(1), which is meant to be read in conjunction with section 343, provides, "a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." For the reasons given below, we conclude that the jury could have found that PSI failed to maintain its property in a reasonably safe condition.

In the vast majority of premises liability cases, the plaintiff is either a guest or a customer of the possessor of the premises. There are a few reported cases where the plaintiff is an employee of an independent contractor, but in every one of those, the "condition" or "activity" that gives rise to liability is a condition not created or addressed by the contractor (a preexisting hole in the roof) or an activity conducted by somebody other than the plaintiff or the plaintiff's employer (demolition work by another contractor). Here, liability is premised on the condition (asbestos on the site) or activity (removing or installing asbestos) that was the reason for the plaintiffs presence on the property. The early cases on landowner liability recognized that a dangerous condition did not give rise to lability to the person hired to "repair" it. Annotation, Duty of Owner of Premises to Furnish Independent Contractor or His Employee a Safe Place to Work, Where Contract is for Repairs, 31 A.L.R.2d 1875 (1958). Premises liability to insulators based solely on their exposure to insulation on the premises thus would present an extension of existing case law in this jurisdiction, and so far as we can determine, everywhere else as well. PSI and amici posit that this extension would affect a large number of landowners who find themselves with asbestos on site that either has required or will require services of professional installers or removers.

Roberts correctly points out that the Restatement, if taken literally, supports his claim. He asserts injury from a "condition" (asbestos) on PSI's land which at least at some point PSI "should realize" constitutes an "unreasonable risk" if no precautions are taken. There was evi-denee that PSI was aware that ACandS workers took no precautions. However, we do not believe the language of the Restatement was framed in contemplation of claims by those conducting the dangerous activity or addressing the "condition." All of the Restatement's illustrations address fact situations in which the claimant is a guest or customer, not a person on the premises to remedy the "condition." A Restatement is just that, an attempt to formulate what decisional law is or ought to be. It is not a statute whose precise wording is entitled to deference as an act of an equal branch of government. Harold G. Maier, The Utilitarian Role of a Restatement of Conflicts in a Common Low System: How Much Judicial Deference Is Due to the Restaters or "Who are these guys, anyway?", 75 Ind. L.J. 541, 548 (2000). In interpreting and applying a Restatement, it is often necessary to consider the illustrations and cases applying it and the theories underlying them.

*959This case is an example of the intersection of two theories of common law liability. PSI employed ACandS as an independent contractor to deal with asbestos insulation installed on PSI's power generating structures. The plaintiffs assert that PSI incurred liability to Roberts both as the entity in possession of the premises and as a principal liable for the acts of its independent contractor. In considering landowner liability to an independent contractor or its employees, the considerations limiting the principal's liability for acts of the contractor are also relevant to the principal's liability as a landowner. For the reasons given in Part I, the appropriateness of safeguards by employees of a contractor is reasonably left to the contractors. Viewed through that lens, we do not believe the law supports Roberts's claim to the extent it is based on PSI's knowledge of asbestos on the property and awareness that ACandS was not requiring safeguards.

A. Knowledge of the Dangers

PSI challenges the jury verdict based on subsection (b) of section 348 of the Restatement (Second) of Torts As this subsection makes clear, PSI is liable for Roberts's injuries only if PSI should have foreseen that Roberts would fail to protect himself. Davis v. Hooster Energy Rural Elec. Coop., Inc., 19 F.3d 865, 369 (7th Cir.1994). In analyzing whether a landowner should have expected an injury and therefore breached its duty to an invitee, a court will consider the purpose and intent of the invitation and the relative knowledge of the parties Merrill, 771 N.E.2d at 1265. "The determination of whether a breach of duty occurred is a factual question requiring an evaluation of the landowner's conduct with respect to the requisite standard of care. In this factual assessment the issue of the landowner's and the invitee's comparative knowledge becomes relevant." Douglass, 549 N.E.2d at 369-70. "Facts showing only that a landowner knows of a condition involving a risk of harm to an invitee, but could reasonably expect the invitee to discover, realize, and avoid such risk, may be insufficient to prove breach of the duty." Id. at 370. We think a landowner who employs a contractor to perform specialized work such as insulation installation or removal is entitled to rely on the contractor to comply with appropriate safety standards. Indeed, as PSI points out, the contractor is obligated by law to "furnish employment that is safe," "furnish and use safety devices, safeguards, methods, and processes reasonably adequate to render employment and place of employment safe," and "do every other thing reasonably necessary to protect the safety of the employee." Ind.Code § 22-1-1-10 (2004).

The Court of Appeals concluded that there was sufficient evidence for the jury to conclude that PSI breached its duty, finding "that (1) the danger was not known or obvious to Roberts; and (2) PSI should have anticipated