COA divided over general contractor’s duty to provide safe workplace

May 23, 2016

The Indiana Court of Appeals voted 2-1 Monday to affirm summary judgment in favor of the general contractor of a Lafayette Gander Mountain project where a subcontractor’s employee was injured. The majority concluded the general contractor did not have a non-delegable contractual duty toward the injured worker.

Michael Ryan was a sheet metal worker for B.A. Romines Sheet Metal, which was hired by Craft Mechanical to work on the store. Craft Mechanical was a subcontractor of TCI Architects/Engineers/Contractors Inc., which was the general contractor of the project. Ryan was injured after he lost his balance while standing on the top step of an eight-foot ladder and fell while removing ductwork.

He claimed TCI had a non-delegable contractual duty toward him. TCI moved for summary judgment on duty, breach and proximate cause. The trial court denied Ryan’s motion for partial summary judgment and granted TCI’s.

The Court of Appeals looked at the language in the contracts of TCI and the subcontractors as well as language from contracts in Stumpf v. Hagerman Const. Corp., 863 N.e.2d 871, 876 (Ind. Ct. App. 2007), Perryman v. Huber, Hunt & Nichols Inc., 628 N.E.2d 1240 (Ind. Ct. Appl. 1994) and Harris v. Kettlehut Constr. Inc., 468 N.E.2d 1069, 1076-77 (Ind. Ct. App. 1984).

Those cases contained similar language requiring the contractor to take precautions for the safety of employees on the work site. The TCI contract, however, does not require the company to “take precautions” as the Stumpf contract did. Its safety representative only supervises the implementation and monitoring of safety precautions, Judge Melissa May, writing for the majority, noted.

“That TCI’s representative is charged only with ‘supervising’ suggests the ‘implementation and monitoring’ would be done by someone else; the TCI subcontracts indicate the subcontractors had that responsibility.”

“The TCI contract is more like those in Helms v. Carmel High Sch. Vocational Bldg, 844 N.E.2d 562, 564 (Ind. Ct. App. 2006) and Shawnee Const. & Eng’g Inc. v. Stanley, 962 N.E. 2d 76, 84 (Ind. Ct. App. 2011), and it does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not ‘go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors’ as they did in Capitol Const. Servs. Inc. v. Gray, 959 N.E.2d 294 (Ind. Ct. App. 2011). Rather, as noted above, TCI ‘recognizes the importance of’ safety, and its Safety Representative is obliged to ‘supervise the implementation and monitoring’ of safety matters,” May wrote.

Judge Patricia Riley dissented, claiming the majority elevated form over substance in its interpretation of the contractual provisions regarding safety. She would grant Ryan’s partial summary judgment with respect to TCI.

“By assuming the responsibility of the implementation and monitoring of the safety programs, and the assignment of a Safety Representative, TCI affirmatively evinced an intent to assume a non-delegable duty of care, which placed it directly in line with Stumpf,” she wrote.

The case is Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical, 49A02-1508-CT-1198.


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