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DTCI: Opinion clarifies construction manager liability on job sites

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By Mark D. Gerth
 

gerth-mark-mug Gerth

In its recent opinion in the case of Hunt Construction Group, Inc. v. Garrett, No. 49S02-1106-CT-365 (Ind. 2012), the Indiana Supreme Court provided some needed clarity concerning liability of construction managers for injuries suffered by employees of contractors on a construction site. A construction manager exercises overall management of a construction project. The construction manager undertakes a variety of responsibilities pursuant to a contract with the project owner, some of which relate to job-site safety. Unlike a general contractor, a construction manager normally does not enter into contracts with other contractors on the project, each of which generally contracts directly with the owner.

The case arose out of injuries suffered by the plaintiff, Shannon Garrett, during the construction of Lucas Oil Stadium. At the time she was injured, Garrett was employed by Baker Concrete Construction, Inc., which had entered into a contract with the Indiana Stadium and Convention Building Authority (“Stadium Authority”) to perform concrete work on the stadium. She was injured when one of her coworkers dropped a piece of wood while removing forming material from the concrete. The wood struck Garrett and injured her head and left hand.

The plaintiff subsequently filed suit against the defendant, Hunt Construction Group, Inc., which had entered into a contract with the Stadium Authority as the construction manager for the building of the Lucas Oil Stadium. Hunt had no contractual relationship with Baker Concrete or any of the other contractors involved in the construction of the stadium.

In its contract with the Stadium Authority, Hunt undertook certain duties with reference to safety on the project, including the establishment of a safety program and monitoring the safety practices of contractors on the project. However, the contract documents also clearly stated that Hunt was not assuming the safety obligations and responsibilities of other contractors on the project, which those contractors owed to their own employees, pursuant to their own contracts with the Stadium Authority and pursuant to their statutory duties under IOSHA. Moreover, the contract between Hunt and the Stadium Authority contained the following provisions:

2.4.2. Contract Administration: …services provided by the Construction Manager during the Construction Phase are rendered solely for the benefit of the Owner and not for the benefit of the Contractors, the Architect, or other parties performing Work or services with respect to the Project.

12.7 No Third Party Benefit: …the parties do not bestow, nor do they intend to bestow, any rights, privileges or interest in favor of any persons or entities who are not signatories to the Agreement and nothing contained in this Agreement shall be construed to create a contractual relationship with (express, implied, third party beneficiary or otherwise) or a cause of action in favor of any persons or entities who are not signatories to this Agreement.

Notwithstanding the quoted contract provisions, the plaintiff filed a motion for partial summary judgment in the trial court requesting the court declare that Hunt was vicariously liable, as a matter of law, for any safety violations on the part of Baker Concrete or its employees that proximately caused the plaintiff’s injuries. Hunt responded to the motion for partial summary judgment and filed its own motion for summary judgment, arguing that (1) Hunt could not be held vicariously liable for any negligence of Baker Concrete; and (2) Hunt was not liable to the plaintiff because it had not assumed a duty to the plaintiff by way of contract or by conduct.

The trial court granted the plaintiff’s motion for partial summary judgment and denied Hunt’s cross-motion for summary judgment. Hunt then appealed. In December 2010, the Court of Appeals issued its opinion in which it reversed the partial summary judgment for the plaintiff and held that Hunt could not be held vicariously liable for any negligence of the plaintiff’s employer, Baker Concrete. However, the Court of Appeals affirmed the trial court’s denial of Hunt’s motion for summary judgment, holding that Hunt had assumed a duty of care to the plaintiff by contract. The plaintiff filed petition for rehearing, which was denied. Hunt filed a petition to transfer.

On transfer, the Supreme Court summarily affirmed the unanimous decision of the Court of Appeals reversing the trial court’s judgment on the issue of vicarious liability. In its opinion on that issue, the Court of Appeals held that the plaintiff had failed to establish any contractual or other relationship between Hunt and Baker Concrete that would justify imposing liability upon Hunt, without fault, for the alleged negligence of Baker Concrete. The Supreme Court obviously agreed with that conclusion.

The court then reversed the trial court’s denial of Hunt’s motion for summary judgment on the issue of duty. First, the court held that Hunt’s contracts do not impose upon it a legal duty of care for job-site safety to contractor and subcontractor employees. (Opinion at pg. 10) The court rejected the plaintiff’s argument that Hunt had assumed by contract a duty to ensure the safety of everyone on the project in light of the contract language limiting Hunt’s duties and liability. The court opined that “Hunt did not undertake in its contracts a duty to act as the insurer of safety for everyone on the project. Rather, Hunt’s responsibilities were owed only to the Stadium Authority not to workers like Garrett.” (Opinion at pg. 8).

The court observed that its resolution would promote safety at construction sites. It noted that an owner of property has no duty to provide independent contractors with a safe work place. Thus, the Stadium Authority’s contract with Hunt delegating some specific responsibilities related to job-site safety to Hunt was an effort to promote safety on the construction site beyond that required by law. The court observed that had it adopted the rule urged by Garrett, the only way for Hunt to avoid liability would be to disavow any responsibility for safety in its contract documents. Instead, Hunt and the Stadium Authority adopted a method to promote safety without exposing Hunt to the role of an insurer of safety for workers of other contractors on the job site. (Opinion at pgs. 9-10).

Next, the court turned to the question of whether Hunt assumed by its actions or conduct a legal duty of care for job-site employee safety. The court observed that, although Garrett argued that Hunt had engaged in a number of activities relating to safety, none of the actions alleged were beyond those actions contemplated by the contract between the Stadium Authority and Hunt. The court concluded that because the contract itself did not impose upon Hunt any legal duty of care for job-site employee safety and because Hunt did not undertake any actions beyond those required by that contract, it did not assume by its conduct or actions any legal duty of care for job-site employee safety.

Thus, under the Supreme Court’s opinion in Hunt, a construction manager cannot be held vicariously liable for the alleged negligence of a contractor on the site with which the construction manager has no contractual relationship. In addition, a construction manager may limit its duties with reference to safety on the job site, as to both the scope of those duties and the parties to whom those duties are owed. Finally, in instances in which the construction manager has limited its duties by contract, any actions undertaken by the construction manager pursuant to the contract do not give rise to an assumption of duty by conduct or action.

While the court’s decision rests on sound tort and contract principles, the opinion does not establish a general rule of nonliability of construction managers for work-site injuries in all instances. A construction manager can still assume by contract a duty for job-site safety. In addition, to the extent the construction manager undertakes duties beyond those stated in its contract with the owner, it may be found to assume a duty by conduct. It is also important to note the rules adopted by the court with reference to construction managers do not necessarily apply to general contractors with reference to a general contractor’s duties and obligations as to job-site safety for employees of its subcontractors.

Nevertheless, the decision does stand for the proposition that by the careful use of appropriate contract language, an owner and construction manager can enter into a relationship which encourages the construction manager to monitor safety on the job site without becoming an insurer of the safety of the employees of all contractors on the site. In that instance, the primary duty for safety of employees on the site remains where it has been placed by IOSHA, upon each employee’s own employer.•

Mr. Gerth is a partner in the Indianapolis office of Kightlinger & Gray and is a member of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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