Court splits on duty owed by independent contractor

Back to TopCommentsE-mailPrintBookmark and Share

An Indiana Court of Appeals judge dissented from his colleagues because he believed the majority’s ruling placed an “impossible burden” on contractors regarding whether a homebuyer was rightfully on the premises the day she was injured.

Peggy Rider entered into a contract to purchase a new home from Larry L. McCamment and his company. McCamment subcontracted some work to Charles Lee’s company. Despite a provision in the contract that Rider was to get permission before visiting the construction site, she claimed to have visited more than 30 times without permission. She was injured when she fell from an unfinished deck built by Lee’s company while Lee and his men were at lunch and away from the home. Rider was at the home without permission when she was injured.

She and her husband sued McCamment and Lee, and their companies, for negligence. The trial court affirmed summary judgment for the defendants. The Court of Appeals unanimously agreed in granting summary judgment for McCamment because he didn’t control the premises for purposes of establishing a duty of care to Rider. McCamment, as landowner, didn’t exercise actual possession or control of the deck, wasn’t present the day of the accident, and had a contractor do the immediate work, wrote Judge Patricia Riley in the majority opinion in Peggy J. Rider and James R. Rider v. Larry L. McCamment, et al., No. 16A01-1004-CT-180.  

The majority reversed summary judgment in favor of Lee as an independent contractor, holding there are conflicting facts as to how many times Lee had previously seen Rider at the construction site and whether he saw her or knew she frequently visited the site.

“Although Lee exercised control over the premises, the facts designated to us by the parties are not sufficient to conclude whether Rider was rightfully on the premises and whether she was a foreseeable visitor,” wrote the judge.

Judge James Kirsch dissented regarding the reversal of summary judgment in favor of Lee.

“To me, it is reasonable to impose a duty on a contractor when he knows that a party is upon the premises. When Lee was present, he had the ability to warn Rider of potentially dangerous areas or conditions - such as a partially completed railing. He did not have such an ability when he was not present,” he wrote.

To hold that Lee should have foreseen that Rider would visit the house while he was gone and without permission “inflates the concept of duty to infinite proportions,” Judge Kirsch wrote.

“Under the duty imposed by the majority, Lee could have protected himself from liability only by stationing a guard upon the premises to insure that neither Rider, nor anyone else, entered upon the inherently dangerous worksite. I do not think that such a requirement is reasonable or financially feasible.”

He also believed the issue is actually the risk incurred by Rider and someone who enters upon an inherently dangerous construction site without permission or notice incurs the risk of those dangers as a matter of law.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.