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Judges split on construction manager's duty to injured worker

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An Indiana Court of Appeals judge dissented from his colleagues’ majority holding, finding their ruling would “fundamentally alter contracts” dealing with safety on jobsites.

In The Hunt Construction Group, Inc., et al. v. Shannon D. Garrett, No. 49A02-1001-CT-86, The Hunt Construction Group appealed partial summary judgment in favor of Shannon Garrett on her vicarious liability claim and the denial of summary judgment for the construction company regarding its duty to Garrett. Garrett, an employee of Baker Concrete, was injured while working on Lucas Oil Stadium in Indianapolis. Hunt Construction was hired by the Indiana Stadium and Convention Building Authority to be the construction manager on the project. Hunt didn’t enter into a contract with Baker Concrete or other contractors.

The appellate panel agreed that the trial court erred in finding Hunt Construction was vicariously liable for the negligence of Baker Concrete. The trial court based its ruling on Garrett’s argument that Hunt Construction owed her a nondelegable duty – where a principal is by law or contract charged with performing the specific duty. Vicarious liability has generally been applied in the general contractor/subcontractor relationship in construction litigation cases, wrote Judge Michael Barnes. That general relationship doesn’t exist in this case as the ISCBA contracted separately with Hunt Construction and Baker Concrete.

But the judges were divided on whether Hunt Construction owed a duty to Garrett. The majority, after examining the contracts Hunt Construction entered into, found that many provisions gave the company significant duties regarding safety on the jobsite. It was responsible for approving contractors' safety programs, addressing safety violations, and had the ability to remove any employee or piece of equipment deemed unsafe. These provisions resulted in Hunt Construction assuming a duty to workers on the jobsite, including Garrett.

Judge Ezra Friedlander dissented on this matter, believing the majority disregarded the provisions that limited Hunt Construction’s duties regarding safety. His reading of the contract language as a whole clearly shows Hunt Construction didn’t assume a duty to Garrett by contract, he wrote. There are several limiting provisions, which are an unequivocal statement that the construction company wasn’t responsible for project safety and the safety of Baker Concrete’s employees.

“The Majority wholly ignores the clear import of these provisions and fails to give them effect, essentially rendering them ineffective and meaningless,” he wrote. “The Majority’s holding will fundamentally alter contracts of this nature and make it virtually impossible for a contractor taking on the role of construction manager to limit its liability so as not to become an insurer of safety for workers of other contractors.”

Imposing a duty of care on Hunt Construction for the safety of the employees of each contractor here is tantamount to making it an insurer of safety. The majority’s construction of the contractual provisions at issue undermines the framework often used in projects like this, he wrote.

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  • shame on them
    who stand up the working class,watching big corperate company play pass the buck (so to speak)shame on them.This is a person,doesn't her while-being matter. Our justice system needs to take a stand and stop allowing companies it away with this. One day it could be one of their family member in this

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

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  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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