RILEY, J.
Sometime after Lee and his men left, Peggy [Rider] and her daughter arrived unannounced to check the construction. They entered the empty house and proceeded to the back. Peggy went out onto the deck through the sliding glass doors. She advanced further to the side of the deck and leaned over the railing to look at the drop off. The railing gave way and Peggy fell to the ground sustaining multiple and severe injuries.
Lee and his crew returned from their lunch to finish the deck and encountered Peggy’s son and daughter. At this time, Lee discovered that Peggy and her daughter came to the house while he and his crew were at lunch and that Peggy fell off the unfinished deck. Peggy had already left by ambulance when Lee and his men returned. Later that day, Lee finished the deck.
. . . .
We now turn to the analysis of the independent contractor’s duty. It is undisputed that Lee was an independent contractor contracted by McCamment to build the residence. In general, a contractor has a duty to use ordinary care both in his work and in the course of performance of the work. Horine v. Homes by Dave Thompson, LLC, 834 N.E.2d 680, 684 (Ind. Ct. App. 2005). Where an independent contractor is in control of the construction or premises and the independent contractor’s negligence results in injury to another person on the premises, the independent contractor may be held liable under Indiana law. Id. In determining whether Lee owed a duty of care to Rider, we must examine (1) whether Lee was performing work and was in control of the construction or premises, and (2) whether Rider was rightfully on the premises. Id. In determining whether Rider was rightfully on the premises, we also must examine whether it was foreseeable that Rider would visit the construction site and be harmed by stepping onto the deck. Guy’s Concrete, Inc. v. Crawford, 793 N.E.2d 288, 296 (Ind. Ct. App. 2003).
As to the first inquiry, the designated evidence reflects that Lee was present at the site on the accident day. Lee worked on the deck right before the accident and a short time after the accident. As such, we conclude that Lee was in actual possession and control of the deck for the purposes of establishing a duty of care to Rider.
We next address whether Rider was rightfully on the premises and whether it was foreseeable that she would visit the house and be harmed during her inspection. The undisputed designated evidence reveals that McCamment [the premises owner and general contractor] and Rider [the buyer who would take possession on completion] had a contract which provided a protocol for inspections. According to the protocol, Rider was required to obtain permission prior to visiting the house. Nonetheless, Rider visited the construction site thirty to thirty-five times between April and August of 2006 without getting anyone’s permission. Rider followed the protocol only once prior to meeting with McCamment and Lee at another house in the subdivision to discuss certain changes to the standard house plan. Both McCamment and Lee argue that this prearranged meeting was the only time when they met Rider. Rider disagrees. She claims that she saw Lee four to five times at the building site during the course of the construction. Rider also contends that she typically met with the real estate agent to discuss the problems with the construction, yet the real estate agent claims that he was unaware of Rider’s thirty to thirty-five visits.
As such, based on these conflicting facts, we are unable to draw reasonable inferences as to whether Lee saw Rider or knew that she frequented the construction 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. We hold that the trial court erred in granting summary judgment in favor of Lee.
DARDEN, J., concur.
KIRSCH, J., concurring in part and dissenting in part with opinion:
In holding that there is a material question of fact whether Peggy Rider was rightfully upon the premises on the day in which she sustained her injuries, I believe the majority places an impossible burden on contractors. Nothing in the designated materials gives rise to any inference that Lee could or should have anticipated Rider’s presence at the construction site. She did not follow the protocol set out in the contract, and she did not notify Lee or McCamment that she would be coming upon the premises.
. . . .
Assuming that Rider did enter upon the premises previously when Lee was present does not lead to the conclusion that Lee should have foreseen her presence when he was not. There is nothing in the designated materials to support an inference that Lee knew or should have known that Rider was entering upon the premises when neither he, nor his crew, was present. To hold that Lee should have foreseen that Rider would enter upon the premises in his absence and without permission or notice inflates the concept of duty to infinite proportions. 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.