ILNews

Court splits on duty owed by independent contractor

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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.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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