The Indiana Supreme Court granted transfer Thursday to a case questioning whether the Indiana Department of Transportation is liable for the death of an employee of an independent contractor working on a highway project.

In Lorraine Bunn, as personal representative of the estate of Robert P. Bunn, deceased, and Robert L. Bunn v. Indiana Dept. of Transportation, No. 50A03-0810-CV-504, the Indiana Court of Appeals reversed summary judgment in favor of INDOT on the estate's negligence claims. Robert P. Bunn was fatally electrocuted while working on a highway construction project INDOT contracted to his employer.

INDOT moved for summary judgment, arguing it had no duty to Robert or his son Robert L. Bunn (Bobby), who witnessed the accident, because they were independent contractors.

Judges L. Mark Bailey and Margret Robb cited Indiana Dept. of Transportation v. Howard, 879 N.E.2d 1119 (Ind. Ct. App. 2008), and concluded that INDOT couldn't avoid liability on the basis of its delegation of its responsibilities to maintain and repair state highways. They also believed INDOT's contract with Pioneer, who subcontracted work to the company where Bunn worked, held INDOT liable.

Judge Carr Darden dissented, because he believed Howard applies only to work performed by an independent contractor in which the negligent execution of that work may endanger the traveling public. The person killed in Howard was a person traveling on the road, not an employee. The judge also believed INDOT couldn't be held liable based on the contract it had with Pioneer.