ILNews

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. what a wonderful world we are living, i still doubt this spell caster how he did it!!! i am Shechan Caroline am from Los Angeles I am so happy to let the whole word know how this powerful spell caster saved my marriage.Everything was going down the drain as my husband can not stop cheating on me with other women. It became used to always heating on me. I tried to make him stop, but I couldn't help the situation, the more I tried, the harder it becomes. At times we will fight and go apart for some months and we will come back again just because of our kids. One day a friend told me about this spell caster who helped her too, his name is Dr.oku, she said he uses white magic spells to solve spiritual problems. I decided to give it a try, I contacted him and he told me it will take just 2 to 3 days and I will see great changes in my husband. He actually cast a spell, believe me after 2 to 3 days of the spell, my husband was confessing different names of woman he has slept with. He begged for forgiveness and never to try it again. From that day till now, my mind is at rest. My husband dislike every other women on earth except me. And am so happy to have him for myself alone.The spell caster’s contact is okutemple@gmail.com or add him on whasapp +2347053113465?

  3. I agree. My husband has almost the exact same situation. Age states and all.

  4. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  5. what a wonderful world we are living, i still doubt this spell caster how he did it!!! i am Tamara Barrow am from USA I am so happy to let the whole word know how this powerful spell caster saved my marriage.Everything was going down the drain as my husband can not stop cheating on me with other women. It became used to always heating on me. I tried to make him stop, but I couldn't help the situation, the more I tried, the harder it becomes. At times we will fight and go apart for some months and we will come back again just because of our kids. One day a friend told me about this spell caster who helped her too, his name is Dr.voodoo, she said he uses white magic spells to solve spiritual problems. I decided to give it a try, I contacted him and he told me it will take just 2 to 3 days and I will see great changes in my husband. He actually cast a spell, believe me after 2 to 3 days of the spell, my husband was confessing different names of woman he has slept with. He begged for forgiveness and never to try it again. From that day till now, my mind is at rest. My husband dislike every other women on earth except me. And am so happy to have him for myself alone.The spell caster’s contact his email at: voodoospelltemple66@gmail.com visit his website on http://drvodoospelltemple.webs.com

ADVERTISEMENT