COA rules for general contractor in injured worker’s dispute

A general contractor does not owe a duty of care to a construction worker injured on the job, the Indiana Court of Appeals ruled in a Monday interlocutory appeal, reversing a grant of summary judgment to the worker as to that issue.

Shiel Sexton, hired by Hendricks Commercial Properties to be general contractor for ironwork on some property that it owned, subcontracted with Circle B Construction Systems to build part of the project. Likewise, Circle B contracted with Rose and Walker Supply Indianapolis to deliver materials to the property that Circle B needed to construct its portion of the project.

Three workers were sent from the supply company to deliver metal studs to the site, including two permanent employees and a temporarily assigned employee, Joshua Towe.

As one of the supply company’s workers used a boom crane to lift and unload the 1,000-pound bundles of metal studs, the workers took a break and one of the bundles was left suspended in the air. When Towe and another worker took their break directly beneath the hoisted load, the bundle tipped and poured metal studs down onto the workers, injuring both men.

Towe sued, and Shiel Sexton, Circle B, and Towe eventually filed competing motions for summary judgment. Shiel Sexton alleged that it did not owe a duty of care to Towe and was not the proximate cause of his injuries. For its part, Circle B argued it was entitled to summary judgment because it could not have a duty of care to Towe when the contract between Hendricks and Shiel Sexton “imposes a non-delegable duty upon Shiel Sexton which cannot be modified by any subsequent agreement with Circle B.”

But the Marion Superior Court denied summary judgment to both Shiel Sexton and Circle B and granted partial summary judgment to Towe on the issue, prompting an interlocutory appeal.

The Indiana Court of Appeals on Monday reversed in part, affirmed in part and remanded in Shiel Sexton Company, Inc., et al. v. Joshua Towe, 18A-CT-01446.

The appellate court first found that while Circle B did assume a duty to protect Towe, the trial court erred in finding that Shiel Sexton did as well.

Contrary to Towe’s assertions, the facts that Hendricks made clear in the Work Order that it wanted to be part of the process of hiring subcontractors and vendors — because there was a maximum cost for the Project that could not be exceeded — and that Hendricks made clear that Shiel Sexton would be responsible for payment of any liens for labor or materials that might be placed on the property, do not require us to read Article 10.1’s reference to Contractor being solely responsible for the health and safety of ‘Contractor’s employees, subcontractors and agents’ to include every possible sub-subcontractor or vendor of a subcontractor,” Judge Melissa May wrote for the appellate court.

It further noted that neither Circle B nor Towe directed the appellate court to language in the Master Contract whereby Shiel Sexton was charged with the duty to designate a “safety representative to perform inspections and hold safety meetings with contractors[.]”

We decline to cobble together language from various portions of the Master Contract to change the meaning of the language provided in the provision about Safety. None of the other language cited by Towe or Circle B demonstrates Shiel Sexton intended to assume a duty toward the employee of a third-party delivery service bringing supplies to a subcontractor. For these reasons, we conclude the Master Contract between Hendricks and Shiel Sexton did not contain language by which Shiel Sexton assumed a non-delegable duty to protect Towe,” it concluded.

The appellate court therefore remanded for the trial court to enter summary judgment for Shiel Sexton after finding that it had no duty to protect Towe. It also remanded for further proceedings as to breach, causation, and damages as to Circle B’s assumption of a duty to protect Towe.

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