Court of Appeals of Michigan.

PREMIER CENTER OF CANTON, L.L.C., Plaintiff–Appellee,

and

The Kroger Company of Michigan, Intervening Plaintiff–Appellee

v.

NORTH AMERICAN SPECIALTY INSURANCE COMPANY, Defendant/Cross–Plaintiff/Third–Party Plaintiff–Appellee,

and

Asphalt Specialists, Inc., Defendant/Cross–Defendant–Appellant,

and

Lou’s Trucking Company, Inc., d/b/a Rental Specialists, L.L.C., Lou’s Scrap Transport, Inc., TKMS, Ltd., Daniel Israel and Bruce Israel, Third–Party Defendants–Appellants.

 

Docket No. 297799.

Nov. 29, 2011.

 

Wayne Circuit Court; LC No. 08–017780–CK.

 

Before: MURPHY, C.J., and BECKERING and RONAYNE KRAUSE, JJ.

 

PER CURIAM.

Defendant, Asphalt Specialists, Inc. (ASI), and third-party defendants, Lou’s Trucking Company, Inc., Lou’s Scrap Transport, Inc ., TKMS, Ltd., Daniel Israel, and Bruce Israel (ASI and third-party defendants are collectively referred to as the indemnitors), appeal as of right from the judgment against them and in favor of third-party plaintiff, North American Specialty Insurance Company (North American). We affirm.

 

I

The indemnitors argue that the trial court erred in granting summary disposition regarding liability on the underlying breach of contract claims in favor of plaintiff, Premier Center of Canton, L.L .C. (Premier Center), and intervening plaintiff, The Kroger Company of Michigan (Kroger). We disagree.

 

This Court reviews de novo a trial court’s decision on a motion for summary disposition. Davenport v. HSBC Bank USA, 275 Mich.App 344, 345; 739 NW2d 383 (2007). The trial court cited MCR 2.116(C)(10) in granting summary disposition to Premier Center and Kroger. “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh v. Taylor, 263 Mich.App 618, 621; 689 NW2d 506 (2004). “Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Latham v. Barton Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008).

 

However, to the extent that the trial court granted summary disposition to Premier Center and Kroger on the basis of the doctrine of collateral estoppel, the decision is more properly reviewed under MCR 2.116(C)(7). “Summary disposition on the basis of collateral estoppel … is pursuant to MCR 2.116(C)(7).” Alcona Co v. Wolverine Environmental Prod, Inc, 233 Mich.App 238, 246; 590 NW2d 586 (1998). “An order granting summary disposition under the wrong court rule may be reviewed under the correct rule.” Shirilla v. Detroit, 208 Mich.App 434, 437; 528 NW2d 763 (1995). “The mislabeling of a motion does not preclude review where the lower court record otherwise permits it.” Ellsworth v. Highland Lakes Dev Assoc, 198 Mich.App 55, 57–58; 498 NW2d 5 (1993). In considering whether to grant summary disposition under MCR 2.116(C)(7), a “court may consider all affidavits, pleadings, and other documentary evidence, construing them in the light most favorable to the nonmoving party.” Alcona Co, 233 Mich.App at 246. Further, the application of the doctrine of collateral estoppel is a question of law that is reviewed de novo. Estes v. Titus, 481 Mich. 573, 578–579; 751 NW2d 493 (2008).

 

“Collateral estoppel, or issue preclusion, precludes relitigation of an issue in a subsequent, different cause of action between the same parties or their privies when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding.”   Ditmore v. Michalik, 244 Mich.App 569, 577; 625 NW2d 462 (2001). “A person is in privy to a party if, after the judgment, the person has an interest in the matter affected by the judgment through one of the parties, such as by inheritance, succession, or purchase.” Husted v. Auto–Owners Ins Co, 213 Mich.App 547, 556; 540 NW2d 743 (1995), aff’d 459 Mich. 500 (1999). “In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action, and the parties must have had a full opportunity to litigate the ultimate issues in the first action.” VanDeventer v. Mich. Nat’l Bank, 172 Mich.App 456, 463; 432 NW2d 338 (1988). Collateral estoppel “is a flexible judge-made rule generally said to have three purposes: To ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ “ Detroit v. Qualls, 434 Mich. 340, 357 n 30; 454 NW2d 374 (1990), quoting Allen v. McCurry, 449 U.S. 90, 94; 101 S Ct 411; 66 L.Ed.2d 308 (1980).

 

Here, the issue whether ASI breached a settlement agreement in a prior lawsuit by failing to repair a parking lot was actually and necessarily determined when the trial court in the prior action granted Premier Center’s motion to enforce the settlement agreement. See Ditmore, 244 Mich.App at 577. The parties had a full and fair opportunity to litigate the issue in the context of Premier Center’s motion to enforce the settlement agreement. See VanDeventer, 172 Mich.App at 463. ASI, Premier Center, and Kroger were all parties to the prior proceeding. See Ditmore, 244 Mich.App at 577. Although third-party defendants were not parties to the prior proceeding, they are in privity with ASI because they have an interest in the matter affected by the judgment through ASI. See Id.; see also Husted, 213 Mich.App at 556. Third-party defendants and ASI entered into an indemnity agreement with North American in connection with the issuance of a bond assuring ASI’s performance of its obligations under the settlement agreement in the first lawsuit.

 

The indemnitors argue that the issue was not actually litigated because it was not put into issue by the pleadings in the prior action. They cite VanDeventer, 172 Mich.App at 463, stating that “[a] question has not been actually litigated until put into issue by the pleadings, submitted to the trier of fact for a determination, and thereafter determined.” The indemnitors note that a motion to enforce a settlement agreement is not included in the definition of “pleading” set forth in MCR 2.110(A). However, the indemnitors fail to explain why ASI’s obligation to repair the parking lot was not put into issue by the pleadings in the prior action. The prior lawsuit arose out of a dispute regarding an agreement to perform construction work that included the parking lot at issue. The parties then reached a settlement agreement, and a dispute later arose regarding ASI’s obligation to repair the parking lot under the settlement agreement. Thus, the question regarding ASI’s obligation to repair the parking lot was put into issue by the pleadings in the first action. Also, the fact that the trial court rather than a jury decided the issue does not preclude application of collateral estoppel. See Qualls, 434 Mich. at 356 n 27 (“A judgment is considered a determination of the merits, and thereby triggers the doctrine of collateral estoppel on relitigation, even if the action has been resolved by a summary disposition.”). Here, the trial court in the prior action properly decided the issue in the context of Premier Center’s motion to enforce the settlement agreement.

 

The indemnitors also contend that collateral estoppel cannot apply because the order enforcing the settlement agreement in the prior action was not a final judgment. They note that in dismissing ASI’s claim of appeal from the settlement enforcement order, this Court stated that the order dismissing the prior lawsuit pursuant to the settlement agreement, rather than the subsequent order enforcing the settlement agreement, was the first judgment or order that disposed of all the claims and adjudicated the rights and liabilities of all the parties. LaSalle, Inc v. Premier Center of Canton, LLC, unpublished order of the Court of Appeals, entered January 14, 2009 (Docket No. 288976). The indemnitors cite no authority to establish that a final judgment for purposes of collateral estoppel must be a final order for the purpose of filing an appeal of right. “This Court will not search for authority to sustain or reject a party’s position. The failure to cite sufficient authority results in the abandonment of an issue on appeal.” Hughes v. Almena Twp, 284 Mich.App 50, 71–72; 771 NW2d 453 (2009) (citation omitted). In any event, the first lawsuit culminated in a valid final judgment. The order dismissing the first lawsuit pursuant to the settlement agreement disposed of all the claims and adjudicated the rights and liabilities of all the parties. Subsequently, after a dispute arose regarding ASI’s performance, the trial court entered an order enforcing the settlement agreement. That order actually and necessarily determined the issue regarding ASI’s obligation to perform the repairs. Therefore, application of the doctrine of collateral estoppel is appropriate.

 

Because we conclude that collateral estoppel bars relitigation of the underlying issue regarding whether ASI breached the settlement agreement, we do not reach the underlying breach of contract issue.

 

II

The indemnitors also argue that the trial court erred in granting summary disposition to North American on its contractual indemnification claim. We disagree.

 

The construction of unambiguous contractual language is a question of law that is reviewed de novo. Roberts v. Titan Ins Co (On Reconsideration), 282 Mich.App 339, 348; 764 NW2d 304 (2009). “A right to indemnification can arise from an express contract, in which one of the parties has clearly agreed to indemnify the other.” Hubbell, Roth & Clark, Inc v. Jay Dee Contractors, Inc, 249 Mich.App 288, 291; 642 NW2d 700 (2002). “An indemnity contract is construed in the same fashion as are contracts generally .” Zurich Ins Co v. CCR & Co (On Rehearing), 226 Mich.App 599, 603; 576 NW2d 392 (1997). “When the terms of a contract are unambiguous, their construction is for this Court to determine as a matter of law.” Hubbell, 249 Mich.App at 291. “This Court must determine the intent of the parties to a contract by reference to the contract language alone. This Court may not look outside the contract to assess the parties’ intent.” Id. See also Grand Trunk Western R, Inc v. Auto Warehousing Co, 262 Mich.App 345, 353; 686 NW2d 756 (2004) (“Where parties have expressly contracted with respect to the duty to indemnify, the extent of the duty must be determined from the language of the contract.”).

 

Here, the indemnity agreement required the indemnitors to

 

exonerate, hold harmless, and indemnify the Surety [i.e., North American] from and against any and all liability, loss, costs, damages, fees of attorneys and consultants, and other expenses, including interest, which the Surety may sustain or incur by reason of, or in consequence of, the execution of such bonds and any renewal, continuation or successor thereof, including but not limited to, sums paid or liabilities incurred in settlement of, and expenses paid or incurred in connection with claims, suits or judgments under such bonds, expenses paid or incurred in enforcing the terms hereof, in procuring or attempting to procure a release from liability, or in recovering or attempting to recover losses or expenses paid or incurred, as aforesaid.

 

This contractual language unambiguously required the indemnitors to indemnify North American for all liability, costs, damages, attorney fees, consultant fees, and other expenses sustained by reason of the execution of the bond. Further, the contract granted North American

the exclusive right to decide and determine whether any claim, liability, suit or judgment made or brought against the Surety or the Indemnitors, or any one of them, on any such bond shall or shall not be paid, compromised, resisted, defended, tried or appealed, and the Surety’s decision thereon, if made in good faith, shall be final and binding upon the Indemnitors.

 

This provision clearly authorized North American to decide whether to pay Premier Center and Kroger to settle their underlying claims; the only limitation is that North American’s decision must have been made in “good faith.”

 

The indemnitors contend that North American failed to act in good faith when settling the underlying claims. The indemnity agreement does not define the term “good faith.” “Unless otherwise defined, contractual language is given its plain and ordinary meaning.” Cole v. Auto–Owners Ins Co, 272 Mich.App 50, 53; 723 NW2d 922 (2006). “Courts may consult dictionary definitions to ascertain the plain and ordinary meaning of terms undefined in an agreement.”   Holland v. Trinity Health Care Corp, 287 Mich.App 524, 527–528; 791 NW2d 724 (2010).

 

Random House Webster’s College Dictionary (2000) defines “good faith” as “accordance with standards of honesty, trust, sincerity, etc.” This definition accords with Michigan case law. In People v. Downes, 394 Mich. 17, 26; 228 NW2d 212 (1975), the Michigan Supreme Court, interpreting a statute authorizing a physician in good faith to prescribe and dispense narcotic drugs, noted that the term “ ‘[g]ood faith’ consistently has been deemed a standard measuring the state of mind and perception of the defendant-a measure of honest belief and intention.” The Downes Court also quoted with approval language in Smith v. State, 214 Ind 169, 174; 13 N.E.2d 562 (1938), stating that “ ‘good faith’ needs no definition other than that implied by the words themselves” and that “good faith means ‘good intentions and the honest exercise of his best judgment as to the need of [defendant doctor’s] patient.”   Downes, 394 Mich. at 25, quoting Smith, 214 Ind at 174.

 

In Shaffner v. Riverview, 154 Mich.App 514, 518; 397 NW2d 835 (1986), this Court adopted the Downes definition of “good faith” in the context of a contribution statute. In Miller v. Riverwood Recreation Center, Inc, 215 Mich.App 561, 570; 546 NW2d 684 (1996), this Court, again addressing the right of contribution, relied on Downes and Shaffner to “conclude that ‘good faith’ should be analyzed with respect to the settling parties’ negotiations and intent. This is the usual way in which the ‘good faith’ of agreements is analyzed.” “ ‘Good faith’ has been defined as a standard measuring the state of mind, perceptions, honest beliefs, and intentions of the parties.” Id. The Miller Court also noted that Black’s Law Dictionary (6th ed) “defines ‘good faith,’ in part, as ‘an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage.’ “ Id. at 571, quoting Black’s Law Dictionary (6th ed). “In contrast, ‘bad faith,’ in the insurance context, has been defined as ‘arbitrary, reckless, indifferent, or intentional disregard of the interests of the person owed a duty.’ “ Id., quoting Commercial Union Ins Co v. Liberty Mut Ins Co, 426 Mich. 127, 136; 393 NW2d 161 (1986). “[A] claim of bad faith cannot be based upon negligence or bad judgment ‘if the actions were made honestly and without concealment.’ “ Id., quoting Commercial Union, 426 Mich. at 137.

 

Here, the indemnitors have adduced no evidence that North American failed to act in good faith when it decided to settle the underlying claims. There is no indication that North American’s decision to settle reflected anything other than an honest exercise of judgment. ASI’s disagreement with the settlement decision does not establish that North American acted in bad faith. The indemnitors’ contention that North American settled to avoid having its employees deposed is mere speculation. Further, the trial court had already determined that ASI and North American were liable for breach of their obligations under the bond and limited their ability to contest damages to the costs of the repairs. These decisions by the trial court supported North American’s conclusion that settlement was a prudent course of action. North American settled for less than the amount claimed by Premier Center and Kroger, thereby protecting itself and ASI from the possibility of a larger judgment and further litigation costs. North American’s email to Premier Center and Kroger expressing its interest in settling the underlying claims does not reflect a reckless or intentional disregard of ASI’s interest. Parties to a lawsuit often engage in such discussions when attempting to reach a compromise. Also, ASI’s offer to post collateral after it discovered the settlement agreement does not establish that North American acted in bad faith; otherwise, a principal could always block a surety’s decision to settle, essentially nullifying the surety’s exclusive contractual authority to make such decisions.

 

Because no evidence exists that North American acted in bad faith when it decided to settle the underlying claims, its decision was final and binding upon the indemnitors under the parties’ agreement. Thus, the trial court properly concluded that North American is entitled to summary disposition regarding its contractual indemnity claim.

 

In light of our resolution of the contractual indemnity issue, we need not address whether North American was entitled to summary disposition regarding its common-law indemnity claim.

 

Affirmed.

Court of Appeals of Indiana.

David RIPPE, Appellant–Plaintiff,

v.

EDWARD C. LEVY COMPANY, Appellee–Defendant.

 

No. 45A03–1102–CT–30.

Nov. 28, 2011.

 

Appeal from the Lake Circuit Court; The Honorable Lorenzo Arredondo, Judge, The Honorable Richard McDevitt, Magistrate; Cause No. 45C01–0404–CT–64.

Sandra O’Brien, Mindel & Associates, Hobart, IN, Attorney for Appellant.

 

Terence M. Austgen, Jacquelyn S. Pillar King, Singleton, Crist, Austgen & Sears, LLP, Munster, IN, Attorneys for Appellee.

 

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAKER, Judge.

Appellant-plaintiff David Rippe appeals from a jury verdict in favor of appellee-defendant Edward C. Levy Co. (Levy) that found Levy not liable for the injuries Rippe sustained while an employee of an independent contractor at a Levy site. Specifically, Rippe argues that the trial court erroneously instructed the jury on premises liability and vicarious liability. First, we conclude that, in reading the jury instructions as a whole, the jury was not misled as to the law on premises liability. Second, having received very little of the trial transcript, we conclude that, on the record before us, we cannot say that the trial court erred in giving the instruction on vicarious liability. Thus, we affirm the judgment of the trial court.

 

FACTS

The facts that can be gathered from the record before us are limited. The Edward C. Levy Company hired Perkins Trucking & Paving Company to transport slag products from Levy’s site at the LTV Steel plant in East Chicago. David Rippe was a Perkins truck driver assigned to transport the slag. In order to load his dump truck at the Levy site, Rippe had to drive under an overhead hopper, climb out of his truck, and personally operate the hopper’s controls. Rippe had transported slag from the Levy site for approximately two and one-half years before the incidents at issue occurred.

 

After so many days of trial, the plaintiff provided only the argument for jury instruction and no actual trial testimony. The only actual record available to help us develop the facts was provided by the appellee and is limited to the cross-examination of Rippe.

 

Slag is a byproduct of the steel making process and is similar in form to rock or gravel. See Mayfield v. Levy Co., 833 N.E.2d 501, 503 (Ind.Ct.App.2005).

 

Rippe claims to have suffered injuries on two separate occasions but under similar circumstances while loading slag at the Levy site in September of 2003. On September 22, 2003, Rippe was working the midnight shift. As he drove his truck toward the hopper, he observed a payloader digging under the hopper to remove the slag that had accumulated. Rippe claims that lights under the hopper had not been operational for the two and one-half years that he worked at the site. As he drove under the hopper, Rippe claims that he felt the truck go through an approximately three foot deep depression before coming to a halt. Then, without looking down, Rippe jumped out of his truck and fell when he hit the ground. A week later, on September 29, 2003, Rippe fell in the same manner while exiting his truck underneath the hopper.

 

Rippe did not seek medical treatment immediately following the September incidents. He first visited a doctor for his claimed injuries on November 24, 2003, and his next visit was not until March 2005.

 

On April 27, 2004, Rippe filed his complaint alleging that the hopper was unreasonably dangerous because the hopper lacked a proper stairway with handrails, and, as a result, he was injured. Specifically, Rippe claimed that he had to climb a pile of loose gravel in order to get to the hopper’s controls and that he fell while attempting to climb the pile on September 22 and 29, 2003.

 

At trial, Rippe sought to recover damages from Levy for his injuries under a theory of premises liability. At the conclusion of the evidence, the trial court heard argument on the proposed jury instructions. Rippe objected to Levy’s tendered jury instruction number five, which described the extent of a landowner’s duty to exercise reasonable care to keep its property in a reasonably safe condition for the employees of independent contractors. Rippe also objected to instruction number six which covered vicarious liability of a landowner for acts of an independent contractor. Over Rippe’s objections, the trial court read both instructions to the jury.

 

On November 12, 2010, the jury unanimously entered verdicts in favor of Levy. For the first incident, the jury found that Rippe was 51% at fault, Levy was 9% at fault, and Perkins was 40% at fault. For the second incident, the jury found that Rippe was 100% at fault. Rippe now appeals.

 

DISCUSSION AND DECISION

I. Standard of Review

The manner of instructing a jury is left to the sound discretion of the trial court. Callaway v. Callaway, 932 N.E.2d 215, 222 (Ind.Ct.App.2010). Its ruling will not be reversed unless the instructional error is such that the charge to the jury misstates the law or otherwise misleads the jury. Id. Jury instructions must be considered as a whole and in reference to each other. Id. at 222–23. In reviewing a trial court’s decision to give or refuse a tendered instruction, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Id. at 223. Any error in instructing the jury is subject to a harmless-error analysis: reversal and a new trial are warranted only if, at a minimum, the erroneous instruction “could have formed the basis for the jury’s verdict.” Simmons v. Erie Ins. Exchange, Inc., 819 N.E.2d 1059, 1071 (Ind.Ct.App.2008).

 

II. Premises Liability Instruction

Rippe argues that instruction number five  misstated the law of premises liability as it applies to him because the superior knowledge of the landowner is only applicable in the narrow circumstances where the employee of an independent contractor is injured while addressing the condition that he was invited on the premises to correct—and not any condition. Instruction number five provides:

 

Rippe provided copies of the proposed jury instructions. Appellant’s App. p 14–19. Levy provided copies of the trial court’s final instructions which are unnumbered. Appellee’s App. p. 7–18. We will refer to the jury instructions by their proposed number.

 

A landowner has a duty to exercise reasonable care to keep its property in a reasonably safe condition for employees of independent contractors, but a landowner is not liable for harm to an employee of an independent contractor unless the landowner has knowledge superior to the independent contractor with regard to any danger on the premises.

Appellant’s App. p. 15.

 

Generally, 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. Smith v. King, 902 N.E.2d 878, 881–82 (Ind.Ct.App.2002). However, the property owner must maintain the property in reasonably safe condition for business invitees including independent contractors and their employees. Id. Further, the landowner owes a duty to warn independent contractors of hazardous instrumentalities maintained by the landowner, or latent or concealed perils located on premises. Zawacki v. U.S.X., 750 N.E.2d 410, 414 (Ind.Ct.App.2001).

 

Indiana follows the Restatement (Second) of Torts formulation of landowner’s liability to workers on the premises. Roberts, 829 N.E.2d at 957–58. Under the Restatement (Second),

 

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on 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

 

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

 

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

 

Restatement of Torts, § 343. Further, Section 343A(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.”

 

While the comparative knowledge of landowner and invitee is not a factor in assessing whether the duty exists, it is properly taken into consideration in determining whether such a duty was breached. Rhodes v. Wright, 805 N.E.2d 382, 388 (Ind.2004). 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. 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. Roberts, 829 N.E.2d at 959.

 

In support of his contention that the instruction is erroneous, Rippe directs us to Roberts. In Roberts, our Supreme Court clarified the application of Section 343 with regard to independent contractors. Roberts was employed as an insulator for independent contractor Armstrong Contracting and Supply Co. (Armstrong). PSI hired Armstrong to conduct insulation work at several of its sites. Roberts was an employee of Armstrong’s for several years who had worked with insulation containing asbestos without any protective breathing equipment. Roberts sued PSI energy on the theories of premises and vicarious liability after he contracted Mesothelioma, alleging that PSI knew that Armstrong did not require that its employees wear breathing protection and failed to act. Roberts received a general jury verdict and PSI appealed. Id. at 949–50.

 

In its analysis, the Court observed that liability in Roberts was premised on the condition (asbestos on the site) or activity (removing or installing asbestos) that was the reason for the plaintiff’s presence on the property. Id. at 958. In the cases decided before Roberts involving an employee of an independent contractor suing a landowner, the “condition” or “activity” that gave rise to liability was a condition not created or addressed by the contractor (a preexisting hole in the roof) or activity conducted by somebody other than the plaintiff or the plaintiff’s employer (demolition work by another contractor). Id. The Court then recognized that landowners will hire independent contractors because they possess the better skill to perform the work and landowners may rely on that skill. Id. “This is one of the basic principles underlying the general rule of non-liability and applies in most instances involving a principal who hires an independent contractor.” Id. at 961. The Court held that “a landowner ordinarily has no liability to an independent contractor or the contractor’s employees for injuries sustained while addressing a condition as to which the landowner has no superior knowledge.” Id. at 960. We think that the language in Roberts makes clear that superior knowledge is a requirement for liability when the injured person is an employee of an independent contractor on the premises for the purpose of addressing the condition that caused the injury.

 

Here, Rippe was hired as a truck driver to haul slag from the Levy site. In order to do so, he had to drive his truck under a hopper and climb down from his truck to operate the hopper’s controls. In the alleged incidents, he twice fell into depressions as he stepped down from the truck. Rippe was not on the Levy site addressing the condition that he alleged injured him.

 

Levy still had a duty to maintain its property in a reasonably safe condition. The instruction limits Levy’s liability to instances only where it has superior knowledge as any danger on the premises. “Whether a landowner has superior knowledge goes to the question of breach, not duty, and it is one factor among many used to determine if there was a breach.” Rhodes, 805 N.E.2d at 388. Therefore, we think that this instruction is a misstatement of law as it applies to Rippe.

 

Nevertheless, as stated above, we must read all instructions as a whole and in reference to each other before determining whether the jury was misled as to the law. Further, any error in instructing the jury is subject to a harmless-error analysis: reversal and a new trial are warranted only if, at a minimum, the erroneous instruction “could have formed the basis for the jury’s verdict.” Simmons, 819 N.E.2d at 1071.

 

We observe that the trial court also instructed the jury on the elements of premises liability in instruction number four, which mirrors the Indiana Pattern Civil Jury Instruction 25.11. That instruction reads:

 

Plaintiff Rippe was an invitee on the property of Levy. An occupant of property is liable for injury caused to an invitee by the property’s condition only if the occupant:

 

(1) knew that the condition existed and realized that it created an unreasonable danger to an invitee, or should have discovered the condition and its danger;

 

(2) should have expected the invitee would not discover or realize the danger of the condition, or would fail to protect himself against it; and

 

(3) failed to use reasonable care to protect the invitee against the danger.

 

Appellant’s App. p. 14. Rippe concedes that instruction number four was a correct statement of the law, but he contends that “Levy had a duty to protect Rippe from dangers that Levy should have realized he would fail to protect himself against” and instruction five, “in effect, negated this duty by instructing the jury that Levy could not be liable unless it had superior knowledge as to any dangers on the premises.” Appellant’s Br. p. 5.

 

We do not think that instruction number five could have formed the basis for the jury’s verdict. Although Rippe argues that instruction number 5 misled the jury and negated the duty that Levy owed Rippe, the jury found Levy 9% liable for Rippe’s first claim of injuries. Therefore, contrary to Rippe’s assertions, the jury properly understood that Levy had a duty to Rippe to maintain the property in reasonably safe conditions. Thus, we cannot conclude that the instruction formed the basis for the jury’s verdicts. Accordingly, we conclude that the giving of instruction number five was harmless error.

 

III. Vicarious Liability Instruction

Rippe contends that the trial court erred in reading instruction six because the instruction is a misstatement of law and because his claim was not based on vicarious liability. The instruction reads:

 

A property owner is not liable for the negligence of an independent contractor it hires. The general rule of non-liability rests in part on the custom of hiring sophisticated independent contractors for jobs in which they possess special skill or knowledge in performing projects. In this case, Perkins Trucking is an independent contractor and Levy was entitled to rely on Perkins’ skills as a trucking company moving slag in a steel mill. Levy is not liable for the negligence, if any, of Rippe’s employer, Perkin’s trucking.

 

Appellant’s App. p. 16.

 

“The longstanding general rule has been that a principal is not liable for the negligence of an independent contractor.” Roberts, 829 N.E.2d at 950. 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. The exceptions reflect the notion that, in certain circumstances, “the employer is in the best position to identify, minimize, and administer the risks involved in the contractor’s activities.” Id.

 

However, 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. Id. at 953. As our Supreme Court noted in Roberts:

 

A principal who hires an independent contractor to address a problem on the principal’s premises is no different from one who engages a contractor for work elsewhere and should have no broader exposure to liability for a contractor’s acts. As applied to impose liability on a landowner for a contractor’s omissions, imposition of liability for something equally known to the contractor amounts to a backdoor expansion of liability for the contractor’s actions. No case has found the duty to take “reasonable steps” to impose on the landlord an obligation to see that a contractor uses appropriate safety equipment. We think that “reasonable steps” do not extend to in effect, supervision of the independent contractor’s activities.

 

Id. at 961.

 

The Court found that a landowner who employs a contractor to perform specialized work is entitled to rely on the contractor to comply with appropriate safety standards. Id. at 959. Indeed, 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 everything reasonably necessary to protect the safety of the employee. Id.

 

Rippe argues that the instruction is a misstatement of law because “[i]f Levy knew that Perkin’s employees were exposing themselves to a dangerous condition upon its premises, it could not rely upon Perkin’s skills but, instead had to take steps to protect Perkins employees and the instruction inappropriately negated this duty to protect.” Appellant’s Br. p. 19.

 

As we read it, the instruction did not negate the duty that Levy owes to an independent contractor on its premises, but instead properly instructs the jury that the premises owner is generally not liable for the negligence of an independent contractor. Further, we do not think that the language in Roberts limits the language to instances where the independent contractor is injured by the condition he is on the premises to correct. Such a rule would wholly absolve independent contractors of negligent acts that they are not on the premises to correct and their legal duty to provide their employees with a safe workplace. Therefore, the jury instruction was a correct statement of the law, and the trial court did not err when it instructed the jury that, to the extent that the jury found Perkins was negligent, Levy should not be liable for Perkins’ negligence.

 

Next, Rippe argues that he never made a claim based upon vicarious liability, and, accordingly, the instruction is unsupported by the evidence. More specifically, Rippe argues that Perkins is not a sophisticated contractor. We will therefore review the trial court record for evidence supporting the trial court’s decision to read the instruction.

 

On appeal, Rippe chose to only provide the hearing on jury instructions, and Levy provided the cross-examination of Rippe. No actual evidence was presented at the hearing on the jury instructions, and Rippe’s cross-examination is not relevant to the appropriateness of the giving of the instruction. Thus, the record before us is insufficient to determine the propriety of giving jury instruction number six. Consequently, Rippe has waived the issue. See Fields v. Conforti, 868 N.E.2d 507, 511 (Ind.Ct.App.2007) (stating that “any arguments that depend upon the evidence presented at the … trial will be waived [in absence of a transcript of the trial”] ).

 

The judgment of the trial court is affirmed.

 

KIRSCH, J., and BROWN, J., concur.