¶1concurring in result.
¶2I concur as to Parts I, II, III B, and IV, I respectfully disagree with the majority as to Part III A.
¶3A reasonable jury might well conclude that Krueger's independent contractor work for the Kreileins fell within the exception "where the act to be performed [disconnecting the existing sewer] will probably cause injury to others unless due precaution is taken." Op. at 945.
¶4The failure to determine whether the sewer line served other persons, le. the Trujillos, may well have been the failure to use "due precaution." In such instance, it could be readily foreseen that the sewage from the Trujillos, the other user, would find its way elsewhere causing injury and/or damage
¶5For this reason and for the reasons of my concurrence in the other parts of Judge Riley's opinion, I join in the reversal of the summary judgments entered in favor of both defendants.
¶6. Somewhat parenthetically, I would take issue with the trial court's conclusion that the Beckers "suffered no direct physical impact." Op. at 943. Exposure to raw sewage in one's home is a direct physical impact by the sewage upon the residents of that premises. See Schuman v. Kobets, 698 N.E.2d 375 (Ind.Ct.App., 1998) (tenant has cause of action against landlord for personal injury caused by exposure to pigeon droppings in window casings and walls of apartment), adopted in part upon transfer 716 N.E.2d 355 (Ind.1999); Yeager and Sullivan, Inc. v. O'Neill, 163 Ind. App. 466, 324 N.E.2d 846 (1975).
¶7. It is possible that had Krueger capped both ends of the sewer line, ie. at Kreileins' location and at the tie-in to the main sewer, the sewage from Trujillo's property would either back up in Trujillo's residence (in which case Trujillo would be the plaintiff) or still would have drained onto Kreileins' property and then on to Becker's property. In this analysis, Krueger's negligence would appear to be the failure to determine whether there were other users rather than merely the failure to cap both ends of the line which he assumed to be a "dead line." In any event, my analysis leads to a reversal of the summary judgments both as to Krueger and the Kreileins.
¶8concurring in part and dissenting in part.
¶9I agree with the majority's conclusion that summary judgment in favor of Krueger should be reversed. I believe, however, that the trial court was correct in granting summary judgment in favor of the Kreil-eins. I therefore respectfully dissent from the majority's determination that summary judgment in favor of the Kreileins should be from reversed.
¶10The only two bases apparent to me upon which to impose liability upon the Kreil-eins for the Beckers' alleged damages are that (1) they are vicariously liable for Krueger's negligence, if any, and (2) they were negligent in hiring a contractor who was incompetent to undertake the task for which he was hired. I note that the Beck-ers advance no claim of negligent hiring. That leaves vicarious liability as the only basis for a claim of negligence against the Kreileins. With respect to that question, I believe that the trial court's legal conclusions were correct.
¶11A master is generally not liable for the negligence of an independent contractor. Sword v. NKC Hosp., 714 N.E.2d 142 (Ind.1999). There seems to me to be little doubt that, in relation to the Kreileins and their sewer repairs, Krueger was an independent contractor and not an employee. Krueger used his own equipment and was not directed in his work by the Kreileins in any way. They merely informed him of the nature of the problem and paid him to remedy the situation. Krueger was absolutely independent of the Kreileins when it came to deciding what to do and how to do it. Because Krueger was an independent contractor, the Kreleins were not liable for his negligent acts unless one of the exceptions to the aforementioned general rule applies. The majority correctly concludes that none of the exceptions apply here. Therefore, we-the majority and I-are led inescapably to the conclusion that the Kreileins are not legally responsible for Krueger's negligence.
¶12Notwithstanding this conclusion, however, the majority holds that the Kreileins are not entitled to summary judgment because a jury must decide whether they "breach[ed] their duty of due care in the use of their land so as not to injure the land of their neighbors, the Beckers[.]" Op. at 946. In my view, this conclusion begs the question. What is the basis for a claim of negligence against the Kreileins, apart from vicarious liability for Krueger's actions? I can find none.
¶13Upon my conclusion that the Kreileins cannot be held liable under either of the only two theories upon which a finding of liability could be based, I believe that the Kreileins are entitled to summary judg*950ment. I would affirm that aspect of the trial court's order.