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COA rules against contractor hurt on IU jobsite

June 13, 2017

A construction manager and product manufacturer did not have a duty to a construction contractor injured on an Indiana University jobsite in October 2012, the Indiana Court of Appeals ruled Tuesday.

While working on a construction project at the Indiana University neuroscience building, Mark Gleaves was tasked with cleaning up after carpenters, cleaning concrete forms, assisting with concrete pours and retrieving discarded lumber infills used by Whittenberg Construction. Though Gleaves had prior experience working on forming concrete walls, he had not worked with PERI Formwork Systems, Inc.’s concrete forms, which were used on the construction site.

In October 2012, a crane was wrecking a section of formwork away from a concrete wall when a 16-foot, two-by-four lumber infill was ejected and struck Gleaves in the head. There was no audible warning signal given before the crane lifted the form that struck Gleaves, and he did not see the crew wrecking the form that led to the accident.

Under its contracts with IU, Messer Construction Company, the construction manager, owed a duty only to the school, not any contractors or other third parties. However, PERI did include safety instructions with its formwork.

Gleaves brought a complaint against Messer and PERI in November 2012, and two years later he moved for partial summary judgment against Messer. PERI then oved for summary judgment, arguing it “did not owe a duty to warn that its product did not include lumber infills.”

Messer also moved for summary judgment, arguing it did not owe a duty to Gleaves. The trial court granted summary judgment to Messer and PERI, and Gleaves appealed in Mark Gleaves v. Messer Construction Company and PERI Formwork Systems, Inc., 49A02-1609-CT-2140.

Specifically, Gleaves argued PERI “knew that using excessive force to pry forms loose from poured concrete walls could lead to injury, but it failed to provide any instructions or warnings… .” The Indiana Court of Appeals rejected that argument Tuesday, with Judge John Baker writing that Gleaves’ own testimony during his deposition showed he “knew and understood the danger associated with the work he was doing, the potential for injury from any hazard formed during the wrecking process, and the need to move to a safe area when wrecking work was being performed.”

Further, the appellate court rejected Gleaves’ argument that Messer assumed a duty when it “took specific controlling safety actions over the hazards that led to the accident,” such as requiring an audible warning when lifting loads.

But relying on precedent in Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012), Baker wrote “Messer’s actions regarding safety at the construction site fell within the scope of its contract with IU.” Thus, the construction manager did not assume an additional duty to Gleaves through its action.

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