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Stevenson: Construction contractor non-delegable duties: then & now

April 8, 2015

By Chris Stevenson

Construction jobsite injury litigation often involves questions concerning non-delegable duties. On nearly every construction project, some type of general contractor is retained to oversee the work and then hire subcontractors with various trades (framing, electrical, plumbing, roofing, etc.) to complete different portions of the building. When one of these subcontractors’ actions injures another worker or individual on the jobsite, the question can then become whether the contractor overseeing the work is legally responsible.

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Even if the contractor overseeing the work had no direct involvement in causing the injury, it can still be held liable if it owed a non-delegable duty. In practice, if the contractor overseeing the work owes a non-delegable duty, it is vicariously liable for the negligence of all the other subcontractors performing work on the jobsite. Thus, many times establishing a non-delegable duty becomes the focus of injury litigation, especially where the negligent subcontractor is the employer of the injured worker. As Indiana’s Worker’s Compensation Law is the exclusive remedy for nearly every injured employee, third-party vicarious liability of a contractor for an employer’s negligence can be a pivotal issue in a case.

In looking at this important legal issue, two questions come to mind: What is a non-delegable duty, and where did it originate? First, the non-delegable doctrine cuts an exception to the long-standing rule that a principal is not liable for the negligent acts of an independent contractor. Selby v. NIPSCO, 851 N.E.2d 333, 337 (Ind.Ct.App.2006), trans. denied. Because the contractor overseeing the project typically does not control the means or manner of the work of subcontractors, it does not owe a duty to workers injured on a jobsite. However, Indiana courts have recognized the five following exceptions to the general rule: (1) where the contract requires the performance of intrinsically dangerous work; (2) where the principal is by law or contract charged with performing a specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will likely cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. These exceptions are considered non-delegable because the responsibilities are deemed so important to the community that the overseeing contractor should not be permitted to transfer those duties to another in order to minimize the risk of resulting injuries. Beatty v. LaFountaine, 896 N.E.2d 16, 22 (Ind.Ct.App.2008), trans. denied (2009). Needless to say, there have been hundreds of cases devoted to addressing these exceptions over the years, some of which date back to the late 18th century.

One of the first recorded cases discussing a contractor’s non-delegable duty is found in the English Court of Common Pleas case of Bush v. Steinman (1799) 1 Bos. & P. 404, 126 Eng. Reprint, 978. In Bush, a home was under construction. A contractor was hired to do the work, who then hired another to deliver materials. The servant of the subcontractor hired to deliver materials left a pile of lime in the road in front of the house. When a carriage passed by the road in front of the house, it overturned on the pile of lime. The carriage owner sought to recover against the owner/contractor of the home, and the Court of Common Pleas found that owner/contractor was liable even though it had not directly placed the lime in the road. It appears that Bush embodies exception (3) where the act will create a nuisance, as the lime was referred to as a public nuisance to those traveling the road by carriage.

One of the first applications of Bush in Indiana occurred in Wright v. Compton, 53 Ind. 337 (1876), where a stone quarry owner/operator was held liable for actions of workers hired to blast rocks in his quarry. In Wright, the workers blasted rocks as a wagon and team on the road passed by. Rocks were thrown onto the wagon driver causing injury, which required the driver to “lay out and expend for medical and surgical attention large sums of money, to wit, five hundred dollars.” Id. at 338. Drawing on principles of strict liability for ultra-hazardous activities, the Wright court found that quarry owner/operator could be found liable for the actions of the other contractors hired to perform the blasting. Thus, Wright seems to embody the “intrinsically dangerous work” exceptions (1) and (4).

These non-delegable duty exceptions continued to develop in Indiana throughout the early 20th century and were finally listed out in detail in Scott Const. Co. v. Cobb, 158 N.E. 763 (1928). Scott also involved a blasting case where two cows were killed along with other property damage to a farm in Martin County. Scott found the contractor hired to build highway No. 5 liable for the damage caused by its subcontractors in blasting rocks near the plaintiff’s farm. Scott is one of the first Indiana cases to enumerate the five exceptions and provides multiple citations to other cases showing the development of Indiana’s non-delegable duty doctrine.

Looking back to the historical roots of non-delegable duty exceptions provides an interesting perspective to present caselaw. While Indiana still follows the five non-delegable duty exceptions, the doctrine has faltered in its application to larger, complex construction projects where a “construction manager” rather than a “general contractor” is used to coordinate the work. In Hunt Const. Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012), the Indiana Supreme Court declined to extend the second exception, finding that none of the safety provisions in the construction management contract imposed a specific legal duty on Hunt to control jobsite safety. The court found that Hunt’s contract exhibited a duty only to the owner of the project, and not to workers, such as the plaintiff, who may be injured on the jobsite.

Despite Hunts refusal to extend a non-delegable duty to a construction manager, the doctrine is still viable in Indiana as seen in Gwinn v. Harry J. Kloeppel & Associates, Inc., 9 N.E.3d 687 (Ind. Ct. App. 2014). In Gwinn, a general contractor, Kloeppel, hired a subcontractor to install projection screens as part of a high school classroom renovation project. A projection screen was allegedly installed improperly and fell on science teacher Gwinn when she retracted it. Kloeppel did not install the projection screen and asserted that it did not owe Gwinn a duty. Gwinn argued that contract language stating that Kloeppel “shall be solely responsible and have control over construction means, methods, techniques, sequences and procedures and for coordination all portions of the Work under the Contract. …” bound Kloeppel to a non-delegable duty. The Gwinn court reversed the entry of summary judgment in favor of Kloeppel and granted partial summary judgment to Gwinn on the issue of non-delegable duty.

With over 200 years of history, the non-delegable duty doctrine is not likely to disappear. As with many long-standing legal principles, it will likely be molded to fit today’s complex construction world.•

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Chris Stevenson is an attorney with Wilson Kehoe Winingham. A graduate of the Purdue University Aviation Flight Technology program, Chris uses his technical and engineering background to focus on the firm’s product liability, aviation, and construction accident caseload. The opinions expressed are those of the author.

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