Marilyn Odendahl for www.theindianalawyer.com

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.”

WASHINGTON – The U.S. Environmental Protection Agency (EPA) today announced a settlement with three companies affiliated with Shell Oil Company to resolve Clean Air Act violations, including selling gasoline and diesel fuel that did not conform to federal standards. These violations resulted in excess emissions of harmful air pollutants from motor vehicles, which pose public health threats and environmental impacts. The companies will pay a $900,000 penalty to resolve these violations.

“Fuel standards established under the Clean Air Act play a major role in controlling harmful air pollution from vehicles and engines,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “If unchecked, these pollutants can seriously impair the air we breathe, especially during summer months when they can reach higher levels. This settlement makes clear that if companies fail to produce fuels that comply with federal standards, they will be held accountable.”

Actions by three companies affiliated with Shell Oil Company—Deer Park Refining Limited Partnership, Motiva Enterprises LLC, and Equilon Enterprises LLC, which does business as Shell Oil Products US—are alleged to have resulted in violations of the provisions of the Clean Air Act that ensure the production, testing and sale of high-quality vehicle and engine fuels in the United States. Specifically, EPA alleged that:

• Shell sold mislabeled diesel fuel—fuel labeled ultra-low sulfur diesel that was actually low sulfur fuel—at two gas stations in Northern Virginia. EPA inspectors discovered the violations at the stations, one of which came after receiving a complaint from a consumer. Low sulfur diesel fuel contains up to 500 parts per million of sulfur; ultra-low sulfur diesel may not exceed 15 parts per million of sulfur.

• Shell sold over 4.2 million gallons of gasoline that exceeded a fuel standard for volatility, known as the Reid Vapor Pressure level, that helps control ground level ozone during summer months. Gasoline with higher volatility results in increased emissions of volatile organic compounds, which contribute to the formation of ground level ozone. Breathing ozone can trigger a variety of health problems, particularly for children, the elderly and people who have lung diseases such as asthma.

•  Shell distributed about 700,000 gallons of gasoline from its Sewaren, New Jersey terminal that contained elevated levels of ethanol. Excess ethanol in gasoline can harm emission control components on some vehicles and engines. The Reformulated Gasoline Survey Association, an organization that works to improve industry compliance with Clean Air Act fuel standards, identified the fuel with excess ethanol after surveying Shell retail stations in Irvington, N.J. and Staten Island, N.Y., and notified EPA.

• Shell failed to follow various protocols for sampling, testing, reporting and recordkeeping requirements that help ensure compliance of its fuel with federal standards. Shell proactively reported some of these violations to EPA. Recordkeeping, reporting, sampling and testing violations reduce EPA’s ability to know whether fuels meet certain standards and can lead to increased vehicle emissions.