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Contractor owed no duty to worker injured during construction of Carmel arts center

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Summary judgment for a contractor on the Carmel Regional Performing Arts Center construction was appropriate, the Indiana Court of Appeals ruled, rejecting an injured worker’s argument that a duty was owed to him based on federal workplace safety regulations.

Nathan Ferguson worked for General Piping Inc. when he walked across a temporary wooden walkway on the project site. It broke, causing him to injure his knee. Ferguson and his wife, Deanna, sued contractor Poynter Sheet Metal and 14 other defendants for damages and loss of consortium. The trial court granted summary judgment for Poynter on the issue of whether the company owed Ferguson any duty to refrain from creating or permitting a hazardous condition at the project site.

On appeal, the Fergusons contended that Poynter, as a contractor at the worksite, had a duty to abide by Occupational Safety & Health Administration regulations. The Fergusons claim that Poynter’s duty arose from the contract between Poynter and the Carmel Redevelopment Commission because OSHA requirements are federal regulations.

“The trial correctly found that Poynter did not have a duty of care arising by contract to Nathan. Poynter’s contract specifically provided that Poynter was responsible for ‘all safety precautions and programs in connection with the Work and shall take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury or loss to (i) all employees on the Work and other persons and organizations who may be affected thereby,’” Judge Ezra Friedlander wrote in Nathan and Deanna Ferguson v. Shiel Sexton Company, Inc., WR Dunkin & Son, Inc., Lynch, Harrison & Brumleve, Inc., et al., 29A05-1301-CT-8. “Of note is the use of the word ‘Work’ instead of ‘Project.’”

But the Fergusons claimed that Poynter had a contractual duty to comply with OSHA’s Multi-Employer Citation Policy, CPL 02-00-124. But their argument failed because Poynter was not a creating, exposing, correcting, or controlling employer under the policy. The Fergusons could not establish the trial court erred by granting summary judgment on the issue of duty of care.
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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