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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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