The Indiana Stadium and Convention Building Authority (“Owner”) hired Hunt Construction to act as the construction manager for the construction of Lucas Oil Stadium. The construction contract between Owner and Hunt Construction consisted of documents entitled “Agreement Between Owner and Construction Manager” and “Indiana Stadium Project Safety Program.” [Footnote omitted.] Additionally, Hunt Construction entered into an agreement with the Indiana Department of Labor and Indiana Occupational Safety and Health Administration (“IOSHA”) entitled “Partnership Agreement.” Owner separately entered into agreements with contractors, including Baker Concrete Construction, Inc. (“Baker Concrete”). Hunt Construction did not enter into a contract with Baker Concrete or the other contractors.
On October 16, 2006, Garrett, an employee of Baker Concrete, was injured at the jobsite when another employee of Baker Concrete was removing a piece of forming material above her and the forming material fell, striking Garrett. Garrett sustained injuries to her head and left hand.
Garrett filed a complaint for negligence against Hunt Construction. Garrett then filed a motion for partial summary judgment regarding Hunt Construction’s duty to her. Garrett argued that Hunt Construction had assumed a nondelegable duty to her through its contract and that it had assumed a duty to her through its conduct. . . . .
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In the construction context, “the long-standing general rule has been that a principal is not liable for the negligence of an independent contractor.” . . . However, “[w]hile a master is generally not liable for the negligence of an independent contractor, the master may be liable if the independent contractor was performing a non-delegable duty.” . . . . “A non-delegable duty is one that public policy holds to be so important that one party should not be permitted to transfer the duty (and its resultant liability) to another party.” . . . Nondelegable duties encourage the employer of the contractor to participate in the control of work covered by the exceptions in order to minimize the risk of resulting injuries. Carie, 715 N.E.2d at 855.
Indiana courts have recognized five nondelegable duties: (1) where the contract requires the performance of intrinsically dangerous work; (2) where the principal is by law or contract charged with performing the specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. Id. The second nondelegable duty, “where the principal is by law or contract charged with performing the specific duty,” is at issue here. Id.
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In construction litigation cases, vicarious liability has generally been applied in the general contractor/subcontractor relationship. . . . . Here, however, Hunt Construction was the construction manager, not the general contractor.4 [4In general, a construction manager “coordinates and manages the building process. The construction manager acts as a fiduciary for the owner, a fact which makes the project a cooperative team effort rather than a proceeding among adversaries, a situation which is not uncommon in public sector construction.” . . . .] Hunt Construction had contracted with Owner, and Baker Concrete had also separately contracted with Owner. The general contractor/subcontractor or principal/independent contractor relationship does not exist here. Under these circumstances, there is no basis for finding that Hunt Construction owed a nondelegable duty to Garrett based upon its relationship to the alleged wrongdoer, Baker Concrete. We conclude that the vicarious liability doctrine is inapplicable here.
Although we have concluded that Hunt Construction did not have a duty to Garrett by virtue of vicarious liability, we must also address the parties’argument that Hunt Construction independently had a duty to Garrett by virtue of its contracts or its conduct. We begin by addressing whether Hunt Construction had a duty of care to Garrett as a result of its contracts.
“A duty of care, the breach of which will support a negligence action, may arise contractually.” Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1218 (Ind. Ct. App. 1983). The extent of the duty owed, if any, is a matter of contractual interpretation. . . . .
Several Indiana cases deal with negligence of a construction manager where the duty is based on the contract. In Plan-Tec, we found no contractual duty where the general conditions of the contract stated that the contractors were to have safety responsibility and that the construction manager had no “direct or indirect responsibility for matters relative to Project safety.” Id. at 1219 n.3. On the other hand, in Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240, 1244-45 (Ind. Ct. App. 1994), trans. denied, we found a duty based on the contract where the contract provided that the construction manager would comply with all applicable state and federal statutes and regulations and would require compliance from the contractors. The contract also provided that the construction manager was responsible for reviewing contractors‟ safety programs and making recommendations. We held that the construction manager accepted a contractual duty to require the contractor to install safety nets or install the nets itself.
Here, Hunt Construction entered into several contracts, and many provisions of the contracts addressed safety concerns. The three contracts at issue here are the “Agreement Between Owner and Construction Manager,” the “Indiana Stadium Project Safety Program,” and the “Partnership Agreement” with the Indiana Department of Labor and IOSHA. Hunt Construction focuses on provisions of the agreements that limit the responsibilities of the construction manager and detail the safety obligations of the individual contractors and subcontractors. However, our focus must be on the intent of the agreements regarding the construction manager’s responsibilities, not the contractor and subcontractor responsibilities. . . . .
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According to Hunt Construction, those provisions indicate that its duty was to Owner only and that the individual contractors retained a duty regarding safety. Although the contracts at issue here contain some provisions purporting to limit Hunt Construction’s duties regarding safety, other provisions give Hunt Construction significant duties regarding safety on the jobsite. Hunt Construction was responsible for approving contractors’ safety programs, monitoring compliance with safety regulations, performing inspections, and addressing safety violations. Hunt Construction had the ability to remove any employee or piece of equipment deemed unsafe. As a result of these contractual provisions, we conclude that Hunt Construction assumed a duty to workers on the jobsite, including Garrett. [Footnote omitted.] Consequently, we conclude that the trial court did not err by finding that Hunt Construction had a duty to Garrett by virtue of its contracts. [Footnote omitted.] Because we conclude that Hunt Construction assumed a duty of care through its contract, we need not address whether it assumed a duty of care through its conduct. [Footnote omitted.]
CRONE, J., concurs.
FRIEDLANDER, concurs in part and dissents in part with separate opinion:
I concur with the Majority that Hunt Construction, by virtue of its relationship to Baker Concrete, did not owe a nondelegable duty to Garrett so as to support a finding of vicarious liability. I respectfully dissent, however, from the Majority’s conclusion that Hunt Construction independently owed a duty to Garrett based on contract. I would further conclude that Hunt Construction did not assume a duty to Garrett based on conduct.
A considered reading of the contract language as a whole makes clear that Hunt Construction did not assume a duty to Garrett by contract. The various contract documents expressly state that Hunt Construction’s duties were undertaken “[w]ithout assuming the safety obligations and responsibilities of the individual Contractors,” one of whom was Baker Concrete. Appendix at 92. Again, in paragraph 2.4.14, Owner and Hunt Construction made clear that Hunt Construction “shall not have control over or charge of or be responsible for . . . safety precautions and programs in connection with the Work of each of the Contractors, since these are the Contractor’s responsibilities.” Id. at 104-05. The Agreement between the Owner and Hunt Construction further provided that Baker Concrete would “remain the controlling employer responsible for the safety programs and precautions” applicable to its work and that Hunt Construction’s contractual responsibilities would “not extend to direct control over or charge of the acts or omissions of [Baker Concrete].” Appendix at 102-03.
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Although the Majority quotes large portions of the various contract documents dealing with safety on the jobsite, the Majority pays short shrift to the language limiting Hunt Construction’s liability, noting only that the contract contains provisions that “purport to limit Hunt Construction’s duties regarding safety . . . .” Slip op. at 16. The Majority wholly ignores the clear import of these provisions and fails to give them effect, essentially rendering them ineffective and meaningless. The Majority’s holding will fundamentally alter contracts of this nature and make it virtually impossible for a contractor taking on the role of construction manager to limit its liability so as not to become an insurer of safety for workers of other contractors.
Indeed, the manner in which the contracts at issue here were drafted seems to me to be a well-settled practice in the industry. To impose a duty of care on Hunt Construction for the safety of the employees of each contractor here is tantamount to making Hunt Construction an insurer of safety. The parties clearly sought to avoid such an interpretation by including clear language limiting Hunt Construction’s liability. Moreover, the Majority’s construction of the contractual provisions at issue undermines the framework often employed in projects of this nature. . . . .