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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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