An Indiana Court of Appeals judge dissented from his colleagues because he believed the majority’s ruling placed an “impossible burden” on contractors regarding whether a homebuyer was rightfully on the premises the day she was injured.
Peggy Rider entered into a contract to purchase a new home from Larry L. McCamment and his company. McCamment subcontracted some work to Charles Lee’s company. Despite a provision in the contract that Rider was to get permission before visiting the construction site, she claimed to have visited more than 30 times without permission. She was injured when she fell from an unfinished deck built by Lee’s company while Lee and his men were at lunch and away from the home. Rider was at the home without permission when she was injured.
She and her husband sued McCamment and Lee, and their companies, for negligence. The trial court affirmed summary judgment for the defendants. The Court of Appeals unanimously agreed in granting summary judgment for McCamment because he didn’t control the premises for purposes of establishing a duty of care to Rider. McCamment, as landowner, didn’t exercise actual possession or control of the deck, wasn’t present the day of the accident, and had a contractor do the immediate work, wrote Judge Patricia Riley in the majority opinion in Peggy J. Rider and James R. Rider v. Larry L. McCamment, et al., No. 16A01-1004-CT-180.
The majority reversed summary judgment in favor of Lee as an independent contractor, holding there are conflicting facts as to how many times Lee had previously seen Rider at the construction site and whether he saw her or knew she frequently visited the site.
“Although Lee exercised control over the premises, the facts designated to us by the parties are not sufficient to conclude whether Rider was rightfully on the premises and whether she was a foreseeable visitor,” wrote the judge.
Judge James Kirsch dissented regarding the reversal of summary judgment in favor of Lee.
“To me, it is reasonable to impose a duty on a contractor when he knows that a party is upon the premises. When Lee was present, he had the ability to warn Rider of potentially dangerous areas or conditions - such as a partially completed railing. He did not have such an ability when he was not present,” he wrote.
To hold that Lee should have foreseen that Rider would visit the house while he was gone and without permission “inflates the concept of duty to infinite proportions,” Judge Kirsch wrote.
“Under the duty imposed by the majority, Lee could have protected himself from liability only by stationing a guard upon the premises to insure that neither Rider, nor anyone else, entered upon the inherently dangerous worksite. I do not think that such a requirement is reasonable or financially feasible.”
He also believed the issue is actually the risk incurred by Rider and someone who enters upon an inherently dangerous construction site without permission or notice incurs the risk of those dangers as a matter of law.