Severely injured worker allowed to make case to jury

January 23, 2015

A man who sustained life-changing injuries from a workplace accident is entitled to have his day in court to present his claims to a jury, the Indiana Court of Appeals ruled.

The Court of Appeals reversed the order of summary judgment in favor of the defendant in Adam Nagel and Emily Nagel v. Northern Indiana Public Service Co., 45A03-1403-CT-103. In a footnote, the appellate court noted although there are discrepancies in the plaintiff’s account of the accident, they are for a jury to address.

Adam Nagel, as an employee of ThyssenKrupp Safeway, Inc., was on the crew to construct a scaffold attached to a cooling tower at the NIPSCO power plant in Chesterton. The parts for the project were placed near a silo that collected fly ash. Semi-tractors pulling tanker trailers frequently veered off the road and got very close the parts.

What happened to Nagel is not exactly known, but co-workers found him face down on the ground unconscious and severely injured. Nagel’s recollection is that he was looking for a part when he glimpsed a truck tire and then felt something strike him.

He was in a coma for six weeks and continues to suffer from serious mental and physical problems.   

NIPSCO argued to the Court of Appeals that it did not owe a duty of care to Nagel because he was an independent contractor working on its premises.

Pointing to Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind. 2004) which held there was a genuine issue of material fact to be decided by a jury as to who controlled the property at the time and place of the accident, the Court of Appeals ruled the Nagels’ claims should be heard by a jury.

NIPSCO had control not only of the staging area where the parts were stored but also of the road and traffic flow at the power plant, the court stated. NIPSCO would have “reasonably expected” Nagel to walk in the vicinity of the parts, and the power company knew about the danger of the location.

 “Finally, even if the danger here was obvious (to Nagel), it is a question of fact as to whether NIPSCO could or should have done more to reduce the danger, i.e., by directing Safeway to move the parts rack to a safer location and/or by instituting better road design or traffic control methods, at least while Safeway’s work in the vicinity of the fly ash silo was ongoing,” Judge Michael Barnes wrote for the court. “NIPSCO was not entitled to summary judgment on the basis that the danger here was allegedly obvious and thus there was no breach of duty to Adam.”  



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