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Importance of contracts in construction

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A carefully crafted contract resulted in the Indiana Supreme Court finding a construction company had no duty of care to a subcontractor’s injured employee.

In Hunt Construction Group, Inc. and Mezzetta Construction, Inc., v. Shannon D. Garrett, No. 49S02-1106-CT-365, the justices reversed a Court of Appeals decision that found Hunt Construction Group – the project manager for the construction of Lucas Oil Stadium in Indianapolis – owed a duty of care to a subcontractor’s employee who was injured on the job.

lucasoil-15col.jpg Construction of Lucas Oil Stadium began in 2005 and ended in 2008. (File photo)

Shannon Garrett, an employee of Baker Concrete, was on the jobsite in 2006 when another Baker Concrete employee was removing a piece of forming material above her, and the material fell, injuring Garrett’s head and left hand.

Hunt had no contract with Baker Concrete, but it had a contract with the Stadium Authority to oversee daily operations. Sean Devenney, an attorney who practices construction law with Drewry Simmons Vornehm, said Hunt went beyond what it was contractually obligated to do, taking steps to train workers about safety. Devenney said that the Supreme Court’s decision is important, because if Hunt had to defend itself at trial, construction companies might not see the value in providing additional safety training.

“It is going to be the defining case for quite some time about how to attempt to craft safety programs for clients without taking on liability that they really don’t have very much control over,” he said.

Precedent

The justices cited Nathan Stumpf and Sarisa Stumpf v. Hagerman Construction Corp. and D.A. Dodd Inc., 863 N.E.2d 871, 878 (Ind. Ct. App. 2007) – a case often relied upon in determining the duty of care in construction accident lawsuits. In that case, the Court of Appeals turned to the language of Hagerman’s contract to determine the company had owed a duty of care to a subcontractor.

The COA found in Stumpf that Hagerman’s contract with Purdue University showed that Purdue intended for Hagerman to be responsible for safety on the job site. Devenney said that while both Stumpf and Hunt concern the liability of a construction manager, the cases are distinguished by the language of contracts.

devenney-sean-mug Devenney

“In Hunt, they were very specific and they had many instances where they were clear that they were not taking on the role of safety for the contractors who were doing work,” he said.

Jeffrey Hammond, of Cohen & Malad, had argued on behalf of Garrett in the COA appeal. He said that he thinks Hunt will be limited in its applications going forward, as the type of complex agreement between parties in the case occurs primarily on large public projects.

“The reality is, you don’t see these agreements. In all the cases that I’ve dealt with, construction manager agreements don’t come up that often,” he said.

Hammond said that in large projects, the owner attempts to add layers of safeguards. He equated the construction manager’s role to that of an editor who proofreads a writer’s work.

jeff hammond Hammond

“The Stadium Authority should be commended for its commitment to worker safety and for paying a lot of money to Hunt to enforce project safety rules, and I encourage other project owners around the state to place high value on worksite safety,” he added.

Hammond said that as project owners put increasing emphasis on overall safety, they may be looking at construction management companies more carefully.

“Companies or contractors who put profits over safety and seek ways to avoid accountability for their worksite safety obligations are probably not going to get the job,” he said.

Opinions divided

The Supreme Court’s opinion in Hunt was not unanimous. Justice Brent Dickson’s perception was that the duty of care Hunt owed to Garrett was a “mixed question of fact and law.”

Devenney interprets that to mean Dickson would prefer to see the matter go before a jury.

“I think what he would be saying is that he’s looking at the contract and the activities Hunt took on with this project … probably what he’s saying is he trusts the jury to decide whether Hunt should be held accountable,” Devenney said.

mark voigtmann Voigtmann

When the Court of Appeals issued its opinion in this case, that decision wasn’t unanimous, either. Judge Ezra Friedlander agreed with the COA majority that Hunt did not assign a non-delegable duty to Garrett to assume vicarious liability, but he disagreed that Hunt owed a duty to Garrett based on conduct.

Safety in the industry

Mark Voigtmann leads the construction section of Faegre Baker Daniels’ real estate and construction group. He said safety is an ever-present concern in the construction industry.

“I think this decision is very helpful and despite appearances, is actually a pro-safety opinion, because it clarified that a construction company such as Hunt here can be involved in a very direct way in providing for the safety of all construction workers at a particular site while still being able to not bite off complete responsibility for that safety,” he said. “Reasonable minds can differ on this thing – I’m just a disinterested outside party looking in.”•

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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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