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. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.