Nathan and Deanna Ferguson v. Shiel Sexton Company, Inc., WR Dunkin & Son, Inc., Lynch, Harrison & Brumleve, Inc.

Oct 10 2013, 5:29 am
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:

PAUL D. LUDWIG CHARLES C. HOPPE, JR.
Redman Ludwig, P.C. Knight Hoppe Kurnik & Knight, LTD.
Indianapolis, Indiana Schererville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

NATHAN and DEANNA FERGUSON, )
)
Appellants-Petitioners, )
)
vs. ) No. 29A05-1301-CT-8
)
SHIEL SEXTON COMPANY, INC., WR DUNKIN )
& SON, INC., LYNCH, HARRISON & )
BRUMLEVE, INC., L’ACQUIS CONSULTING )
ENTERPRISES INDIANAPOLIS, LLC, d/b/a )
L’ACQUIS CONSULTING ENGINEERS, CSO )
ARCHITECTS, INC., BEATY CONSTRUCTION, )
INC., THE HAGERMAN GROUP, INC., d/b/a )
HAGERMAN CONSTRUCTION COMPANY, )
COMPLETE MASONRY SERVICES, INC., )
BYBEE STONE COMPANY, INC., PURDY )
MASONRY, INC., SIMPLEXGRINNEL, LP, )
ERMCO, INC., and LITHKO CONTRACTING, )
INC. )
)
Appellees-Respondents. )

APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-1110-CT-10575
 October 10, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Nathan and Deanna Ferguson appeal from the trial court’s order granting summary

judgment in favor of Poynter Sheet Metal, Inc. in their negligence action against Poynter and

others. The Fergusons present the following issue for our review, which we restate: Did the

trial court err by granting Poynter’s motion for summary judgment on the issue of duty?

We affirm.

The Fergusons filed a complaint in Hamilton County against Poynter and fourteen

other defendants seeking damages for injuries Nathan alleged that he sustained on October

20, 2009, while working on the construction of the Carmel Regional Performing Arts Center

in Carmel, Indiana, and for Deanna’s consequent loss of consortium. The Fergusons claim

that on that date, Nathan, who was an employee of General Piping, Inc., was traversing the

worksite when the composite-wood (OSB board) temporary walkway placed on the worksite

for use by project workers to gain access to their project work areas broke beneath him

causing physical injuries, including an injury to his left knee. The Fergusons alleged that the

OSB board was placed across a void in the building’s foundation by either Shiel Sexton

Company, Inc. or at its direction by another of the named defendants. They contended that

the OSB board was unsuitable for use as a temporary walkway because it deteriorated from

exposure to the weather and ultimately broke.

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 On March 16, 2012, Poynter filed a motion for summary judgment on the issue

whether Poynter owed a duty to Nathan to refrain from creating or permitting a hazardous

condition at the project site. The trial court held a hearing on the motion, and after taking the

matter under consideration, granted Poynter’s motion. The Fergusons now appeal.1

In an Indiana summary judgment proceeding, “the party seeking summary judgment

must demonstrate the absence of any genuine issue of fact as to a determinative issue, and

only then is the non-movant required to come forward with contrary evidence.” Jarboe v.

Landmark Cmty Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994). T.R. 56(C)

provides in pertinent part:

At the time of filing [a] motion [for summary judgment] or response, a party
shall designate to the court all parts of pleadings, depositions, answers to
interrogatories, admissions, matters of judicial notice, and any other matters on
which it relies for purposes of the motion. A party opposing the motion shall
also designate to the court each material issue of fact which that party asserts
precludes entry of summary judgment and the evidence relevant thereto. The
judgment sought shall be rendered forthwith if the designated evidentiary
matter shows that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

Summary judgment should not be entered where material facts conflict or where

conflicting inferences are possible. Miller v. Monsanto Co., 626 N.E.2d 538 (Ind. Ct. App.

1993). When we review the grant or denial of a motion for summary judgment our standard

of review is the same as that used by the trial court. J.C. Spence & Assoc., Inc. v. Geary, 712

N.E.2d 1099 (Ind. Ct. App. 1999). We must determine whether there is a genuine issue of

1
Alt Wizig Engineering, Inc., a named defendant in this matter, has entered an appearance on appeal, but was
not a movant or participant in the summary judgment proceedings from which this appeal was taken.

3
material fact and whether the moving party is entitled to judgment as a matter of law. Id. In

resolving those inquiries, we consider only the evidence that has been specifically designated

to the trial court. Id. The party appealing the trial court’s ruling has the burden of

persuading this court that the trial court’s decision was erroneous. Id. A summary judgment

determination shall be made from any theory or basis found in the designated materials. Id.

“We give careful scrutiny to the pleadings and designated materials, construing them in a

light most favorable to the non-movant.” Id. at 1102 (quoting Diversified Fin. Sys., Inc. v.

Miner, 713 N.E.2d 293, 297 (Ind. Ct. App. 1999)).

Our Supreme Court has observed the following: An employee’s rights and remedies

against his or her employer on account of jobsite injuries are governed by the Indiana’s

Worker’s Compensation Act. But that Act does not restrict an injured employee from

pursuing a claim against any “other person than the employer.” Ind. Code [Ann.] § 22-3-2-

13[(West, Westlaw current with all 2013 legislation)]. Hunt Constr. Grp, Inc. v. Garrett, 964

N.E.2d 222, 224 (Ind. 2012).

The Fergusons’ complaint against Poynter and the other defendants, none of which are

Nathan’s employer, alleges negligence. The three elements of negligence are a duty owed to

the plaintiff by the defendant, a breach of that duty by the defendant, and injury to the

plaintiff proximately caused by that breach. Kincade v. MAC Corp., 773 N.E.2d 909 (Ind.

Ct. App. 2002). “Negligence will not be inferred; rather, all of the elements of a negligence

action must be supported by specific facts designated to the trial court or reasonable

inferences that might be drawn from those facts.” Id. at 911. An inference resting on no

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more than speculation or conjecture is not a reasonable inference. Kincade v. MAC Corp.,

773 N.E.2d 909.

Furthermore, we have held that a negligence action is generally not appropriate for

disposal by summary judgment. Id. A defendant in a negligence action, however, may

obtain summary judgment in such an action when the undisputed facts negate at least one

element of the plaintiff’s claim. Id. Here, the question involves the existence of a duty.

“Whether a defendant owes a duty of care to a plaintiff is a question of law for the

court to decide.” Winchell v. Guy, 857 N.E.2d 1024, 1027 (Ind. Ct. App. 2006). On appeal,

the argument presented by the Fergusons is that Poynter had a contractual, non-delegable

duty to Nathan and that argument is supported by reference to several provisions in Poynter’s

contract with the Carmel Redevelopment Commission (CRC). Poynter contends that the

Fergusons have waived arguments based upon various portions of Poynter’s contract by

failing to make the appropriate designations and argument when the trial court was

considering the issue. Arguments not presented to the trial court on summary judgment are

waived for purposes of appeal. Grinnell Mut. Reinsurance Co. v. Ault, 918 N.E.2d 619 (Ind.

Ct. App. 2009).

In support of its motion for summary judgment, Poynter designated the Fergusons’

complaint, Poynter’s answer and affirmative defenses, and the affidavit of Bill Clements,

Poynter’s project manager at the work site. Attached to Clements’s affidavit was a copy of

Poynter’s contract with the CRC. Poynter argued in its memorandum of law in support of its

motion that Poynter owed no duty to Nathan because Poynter was not an owner of the

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premises, nor was Poynter a general contractor. Poynter was not doing any work in the area

of the alleged incident, and none of Poynter’s employees placed, maintained, or controlled

the walkway or the walkway area. Nathan was not an employee, agent, or servant of Poynter

or any of Poynter’s subcontractors.

The Fergusons designated three documents to the trial court in opposition to Poynter’s

motion for summary judgment. The first document was the Fergusons’s complaint. In the

complaint, no reference is made to a contractual duty on the part of Poynter to Nathan. The

second document was the affidavit of Bill Clements. In his affidavit, Clements denied the

existence of a duty to Nathan as Nathan was not an agent of or in the employ of Poynter or

any of Poynter’s subcontractors. Clements denied that anyone associated with Poynter had

anything to do with the placement or maintenance of the temporary walkway. The third

document was a copy of the OSHA Multi-Employer Citation Policy. Under OSHA

regulations, according to the Multi-Employer Citation Policy, a duty is imposed on

contractors and subcontractors to protect all employees, whether their own employee or the

employee of another from hazardous conditions at a work site.

In response, Poynter alleged that the Fergusons did “not present any argument that

Poynter owed [Nathan] a duty of care under common law, contract or statute.” Appellants’

Appendix at 204. Poynter noted that the Fergusons relied solely upon OSHA regulations and

cited to Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 876 n2 (Ind. Ct. App. 2007), for

the proposition that “a duty cannot be created by an OSHA regulation alone.”

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 During the summary judgment hearing, counsel for the Fergusons made the following

argument to the trial court:

Under the contract that Poynter had with the City of Carmel for its work on the
Performing Arts Center which is sponsored by their Affidavit, at Section 620,
there are provisions 620.1, 620.2 that provide that the contractor, being
Poynter, will comply with all applicable laws regarding the safety and
precautions to be taken on the project. Applicable laws include OSHA
regulations, Your Honor. And the OSHA regulations cited in our Reply
[B]rief specifically place the Plaintiff in the [protected] class from all
contractors’ safety responsibilities. Under the OSHA Multi-Employer Citation
Policy, the responsibility covers all contractors on the site. Each contractor has
a duty under OSHA to protect other employees, not only their own, from
perils. And Poynter specifically assumed that obligation and that duty as a
matter of contract in its contract with the City of Carmel. . . .

Transcript at 11-12. Thus, the argument has not been waived, and consistent with our

standard of review, we will consider the additional arguments made by the Fergusons, the

non-movants, that Poynter’s duty to Nathan arose by contract.

On appeal, the Fergusons contend that Poynter, as a contractor at the worksite, had a

duty to abide by OSHA regulations. They cite to a provision of Poynter’s contract whereby

Poynter agrees to comply with “all present and future federal, state[,] and local laws,

executive orders, rules, regulations[,] codes and ordinances which may be applicable” to

Poynter’s performance under the contract. Appellants’ Appendix at 85. The Fergusons claim

that Poynter’s duty to Nathan arose from the contract because OSHA requirements are

federal regulations. Under OSHA regulations, according to the Multi-Employer Citation

Policy, employers on multi-employer worksites have a duty to protect all employees whether

their own employee or the employee of another from hazardous conditions at a work site.

CPL 02-00-124.

7
 As we stated in Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 368 (Ind. Ct. App.

2002) and noted in Stumpf v. Hagerman Constr. Corp., 863 N.E.2d at 876, “an OSHA

standard cannot be used to expand an existing common law or statutory duty, or be used as

evidence of an expanded duty of care.” Here the question is whether a duty arose

contractually. 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 (Ind. Ct. App. 1983).

In interpreting a written contract, it is the duty of the trial court to interpret the
contract so as to ascertain the intent of the parties. It must accept an
interpretation of the contract that harmonizes its provisions as opposed to one
which causes the provisions to be conflicting. The meaning of a contract is to
be determined from an examination of all its provisions, not from a
consideration of individual words, phrases or even paragraphs read alone.

The court will attempt to determine the intent of the parties at the time the
contract was made as disclosed by the language used to express their rights and
duties. If the contract is ambiguous or uncertain in its terms and if the
meaning of the contract is to be determined by extrinsic evidence, its
construction is a matter for the fact finder. If, however, as here, the ambiguity
arises because of the language used in the contract and not because of extrinsic
facts, then its construction is purely a question of law to be determined by the
court.

On appeal we will independently evaluate a pure question of law, substituting
our judgment for that of the trial court if necessary.

Teitge v. Remy Constr. Co., Inc., 526 N.E.2d 1008, 1010-11 (Ind. Ct. App. 1988) (internal

citations omitted).

Borrowing again from our Supreme Court’s opinion in Hunt Constr. Grp, Inc. v.

Garrett, we reproduce the following passage here:

A brief overview of the construction industry as it relates to this case is a
helpful starting point. “Construction management” has grown in recent
decades as an alternative to the conventional approach to large construction

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 projects. A conventional construction project typically features owners,
architects, engineers, general contractors, and subcontractors with discrete
project responsibilities, none of which consist of overall management of the
construction project as a primary activity. In contrast, construction
management separates and consolidates the management function in one entity
called the construction manager. Construction management offers certain
advantages over the conventional approach—sophisticated cost estimating
capabilities, practical analysis of design alternatives, and shortened
development processes. It also has its disadvantages—higher fees,
coordination problems, and a lack of single-point responsibility for both the
construction process and the construction product. A construction manager
undertakes a variety of responsibilities as specified in a written contract
between the construction manager and the project owner. And some of these
responsibilities often relate to jobsite safety.

964 N.E.2d at 224-25 (internal citations omitted). We now turn to the provisions of

Poynter’s contract with the CRC.

The contract was attached to Clements’s affidavit. Important definitions are included

in the City of Carmel Standard General Conditions for Construction Contracts, which was

explicitly incorporated in Poynter’s contract. The definitions follow:

CONSTRUCTION MANAGER—Shiel Sexton Co., Inc., acting by and
through the Carmel Redevelopment Commission.

CONTRACTOR—The person, firm or corporation with whom OWNER has
entered into the Agreement.

Laws and/or Regulations—Laws, rules, regulations, ordinances, codes,
administrative actions and/or orders of any court or governmental agency or
unit.

OWNER—The City of Carmel, Indiana.

Project—The total construction of one or more improvements or structures of
which the Work to be provided under the Contract Documents may be the
whole, or a part, as indicated elsewhere in the Contract Documents.
Work—The entire construction, or the various separately identifiable parts
thereof, required to be furnished under the Contract Documents. The Work is

9
 the result and product of performing services, furnishing labor and furnishing
and incorporating materials and equipment into the construction, all as
required by the Contract Documents.

Appellants’ Appendix at 92-95. Armed with the pertinent contractual definitions, we turn to

the provisions at issue.

The agreement entered into between the City of Carmel by the CRC and Poynter was

entitled “AGREEMENT, City of Carmel, Indiana, Bid Package #4310—HVAC Sheet Metal,

Agreement #2695-4310” and consisted of several documents and attachments. Id. at 82. The

Fergusons contend that section 5.9, which establishes the Contractor’s agreement to comply

with government regulations, is the basis for Poynter’s duty to Nathan. Section 5.9 provides

as follows:

Government Compliance

CONTRACTOR [Poynter] agrees to comply with all present and future
federal, state and local laws, executive orders, rules, regulations, codes and
ordinances which may be applicable to CONTRACTOR’S performance of its
obligations under this Agreement, and all relevant provisions thereof are
incorporated herein by reference. CONTRACTOR agrees to indemnify and
hold harmless OWNER [CRC] from any loss, damage or liability resulting
from any violation of such laws, orders, rules, regulations, codes and/or
ordinances. This indemnification obligation shall survive the termination of
this Agreement.

Id. at 85. They claim that since Poynter agreed to comply with federal regulations, and since

OSHA regulations and the Multi-Employer Citation Policy are federal regulations, Poynter

owed a duty of care to Nathan. Poynter, on the other hand, cites Section 5.4, which provides

that nothing contained within the agreement gives any rights or benefits to anyone other than

the Owner and the Contractor.

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 Section 6.2 provides as follows:

6.2 Resident Superintendent—Contractor [Poynter] shall keep on the work site
at all times during its progress a competent resident superintendent, who shall
not be replaced without written notice to Owner, Construction Manager, and
Engineer except under extraordinary circumstances. The superintendent
[Clements] will be Contractor’s representative at the site and shall have
authority to act on behalf of Contractor. All communications given to or
issued by the superintendent shall be as binding as if given to or issued by
Contractor.

Id. at 108. Section 6.4 contains the following language:

6.4 Full Responsibility. Unless otherwise specified in the Contract
Documents, Contractor shall furnish and assume full responsibility for all
material, equipment, labor, transportation, construction equipment and
machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary
facilities, and all other facilities, services and incidentals necessary for the
furnishing, performance, testing, start-up and completion of the Work.

Id. An additional provision, which is contained in Section 6.14, is relied upon by the

Fergusons and states:

Laws and Regulations. CONTRACTOR shall give all notices and comply
with all Laws and Regulations in effect during the furnishing and performance
of the Work. Except where otherwise expressly required by applicable Laws
and Regulations, neither OWNER nor CONSTRUCTION MANAGER nor
ENGINEER shall be responsible for monitoring CONTRACTOR’s
compliance with Laws or Regulations.

Id. at 110.

One of the attachments, Exhibit A, which was incorporated into the contract, provides

as follows with respect to “SAFETY/QUALITY CONTROL:”

--Prime Contractor responsible for quality control and sign-off forms
--CM will have hold points throughout the work
--Shiel Sexton does have a full time safety manager on site to enforce project
safety.

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Id. at 89 (Emphasis supplied). Furthermore, in regard to safety, Section 6.20.1 provides in

pertinent part as follows:

CONTRACTOR shall be solely responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Work
and shall take all necessary precautions for the safety of, and provide the
necessary protection to prevent damage, injury or loss to (i) all employees on
the Work and other persons and organizations who may be affected thereby,
(ii) all the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the site, and (iii) other property at the site or
adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways,
structures, utilities and Underground Facilities not designated for removal,
relocation or replacement in the course of construction.

Id. at 112.

In Teitge v. Remy Constr. Co., Inc., 526 N.E.2d 1008 (Ind. Ct. App. 1988), we

analyzed a very similar issue. In Teitge, a negligence action arose from an injury suffered by

an employee of one of several prime contractors doing work on a multi-employer

construction site. The appeal involved the determination of a duty, if any, owed to the

injured employee by a prime contractor who was not the employee’s employer. The contract

between the prime contractor and the project owner included language that also appeared in

the contracts of other prime contractors to the effect that the contractor “shall comply with all

applicable provisions of Federal, State, and Municipal safety laws and building codes to

prevent accidents or injury to persons on, about or adjacent to the premises where the work is

being performed.” Id. at 1011.

We stated the following about the plaintiff’s argument about the prime contractor’s

duty in that situation:

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 Teitge fails to show how this provision of the contract—applicable to each and
every prime contractor on the construction site—imposes upon Remy, one
prime contractor, any duty to Teitge, an employee of another prime contractor.
Indeed, Paragraph 1(B) of the General Conditions makes it clear that the word
“Contractor,” when not further qualified, refers to all contractors on the site.
Thus, here, the word “Contractor” does not refer only to Remy and, standing
alone, we cannot conclude that this provision of the contract imposes upon
each contractor a duty to protect all of the employees on the job site.

In fact, it makes no sense to conclude that the contractors were required to
constantly inspect the work of the employees of all the other contractors, to
supply their omissions, and to neutralize the dangerous effects of their
negligent workmanship. It is more logical to conclude that each contractor
was responsible for protecting its own employees during the performance of its
portion of the contract. Otherwise, the cost of avoiding or insuring against
such potential liability would be entirely out of proportion to anticipated
profits for most, if not all, of the contractors. Furthermore, chaos would reign
supreme on any job where several contractors with divergent concepts of
safety might take seriously their supposed duty to supervise the safety practices
of themselves and each other.

Such a chaotic result cannot reasonably be said to have been envisioned by the
parties. Where one construction of a contract would make it unusual and
extraordinary, but another, equally consistent with the language, would make it
reasonable, just, and fair, the latter construction must prevail.

Id. at 1011-12.

The cases to which we are directed by the Fergusons are factually distinguishable

from the present case and as such are not controlling here. For example, in Moore v.

Shawmut Woodworking & Supply, Inc., 788 F.Supp.2d 821 (S.D. Ind. 2011), a general

contractor was found to owe a contractual duty of care to a subcontractor’s employee. The

contractual language used was such that a contractual duty of care arose with respect to all

employees at the worksite. That contract stated that the contractor “shall be fully and solely

13
responsible for the jobsite safety of such means, methods, techniques, sequences or

procedures. . . .” Id. at 825.

In Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240 (Ind. Ct. App. 1994), a

worker in charge of setting four steel, I-beam columns at a construction worksite was killed

when he fell approximately ninety feet to his death. His widow brought an action alleging

negligence and the failure to enforce OSHA regulations as the proximate cause of her

husband’s death. We reversed the trial court’s conclusion that the construction management

company had not assumed a duty to ensure worker safety at the project site. The construction

management company had argued that because each of the individual contractors

contractually agreed to comply with all state and federal regulations, the construction

management company was relieved of its project-wide duty to enforce safety regulations.

We held that the fact the individual contractors also agreed to comply with state and federal

regulations did not relieve the construction management company of its duties, but rather

made both the individual contractor and the construction management company potentially

liable.

In Stumpf v. Hagerman, 863 N.E.2d 871, an employee of an independent contractor

who had been hired by a subcontractor brought a negligence action against the subcontractor

and general contractor for injuries the employee suffered during his work on a construction

project. We reversed the trial court’s order granting summary judgment in favor of the

general contractor and subcontractor. In so doing, we held that the contract language

“evinces intent by the parties to charge [the general contractor] with a duty of care for the

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safety of all the employees on the project, including the employees of its subcontractors.” Id.

at 878. The pertinent contract language that we interpreted read as follows:

The Contractor shall take all necessary precautions for the safety of employees
on the work, and shall comply with all applicable provisions of Federal, State,
and Municipal safety laws and building codes to prevent accidents or injury to
persons on, about or adjacent to the premises where the work is being
performed. . . . Contractor shall designate a responsible member of its
organization on the work, whose duty shall be the prevention of accidents.

Id. at 877. That language illustrated what we concluded was an intent to make the general

contractor follow applicable laws for the benefit third parties, i.e., those on or about the

premises. Language in the present case provided that Poynter would indemnify the CRC for

any violation of the law. Appellants’ Appendix at 85.

Further, in Harris v. Kettelhut Constr., Inc., 468 N.E.2d 1069 (Ind. Ct. App. 1984), the

employee of a subcontractor brought an action against the prime contractor and owner for

damages due to injuries sustained after a fall on the worksite. In that case we acknowledged

the general rule that because a general contractor typically exercises little, if any, control over

the means or manner of work of its subcontractors, requiring only that the completed work

meet the contractual specifications of the owner, liability is seldom imposed on the general

contractor for the negligence of a subcontractor. 468 N.E.2d at 1072. We also

acknowledged five well-recognized exceptions to the general rule, in particular, where a

party is by law or contract charged with a specific duty. The general contractor’s contract

with the owner provided that the general contractor “shall take all necessary precautions for

the safety of all employees on the Project, and all other persons who may be affected

thereby.” Id.

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 The trial correctly found that Poynter did not have a duty of care arising by contract to

Nathan. Poynter’s contract specifically provided that Poynter was responsible for “all safety

precautions and programs in connection with the Work and shall take all necessary

precautions for the safety of, and provide the necessary protection to prevent damage, injury

or loss to (i) all employees on the Work and other persons and organizations who may be

affected thereby.” Appellants’ Appendix at 112 (emphasis supplied). Of note is the use of

the word “Work” instead of “Project.” The work Poynter was called on to perform involved

the HVAC system on the project, and not the digging of trenches or other work pertaining to

foundations or walkways.

The Fergusons, however, direct us to Poynter’s contractual duty to comply with

OSHA’s Multi-Employer Citation Policy, CPL 02-00-124. Specifically, the Fergusons claim

that Poynter was required to make sure that the cover over the hole was capable of supporting

at least twice the weight of employees, equipment and materials that it would be exposed to

at any time, ensure that any covers are secured when installed to prevent accidental

misplacement by wind, equipment or employees, and to ensure that the cover was color-

coded or marked with a warning of the hazard such as ‘HOLE’ or ‘COVER.’ Appellants’

Brief at 18-19 (citing 29 CFR § 1926.501(i); § 1926.502(i)(3); § 1926.502(i)(4)).

The Fergusons’ argument fails because Poynter was not a creating, exposing,

correcting, or controlling employer. Under OSHA’s Multi-Employer Citation Policy, a

creating employer is “[t]he employer that caused a hazardous condition that violates an

OSHA standard.” Appellants’ Appendix at 199. The only designated evidence in the record

16
pertinent to that characterization comes from Clements’s affidavit in which he attests that

neither Poynter, “nor any of its agents or employees or anyone under its supervision or

control had anything whatsoever to do with placing or maintaining the alleged temporary

walkway at the location where Nathan Ferguson alleges that he was injured.” Id. at 80.

Thus, the only relevant designated evidence in the record supports Poynter’s contention that

it was not a creating employer.

Next, an employer can be cited for an OSHA violation if it is an exposing employer.

An exposing employer is defined as “an employer whose own employees are exposed to the

hazard.” Id. at 199. Again, turning to the evidence designated to the trial court, Clements’s

affidavit established that Poynter “did no work outside of the building at the entrance to the

construction site” where the alleged incident occurred. Id. at 79. The Fergusons have

claimed only that Poynter’s employees were exposed to the hazard, and have failed to support

their claim by the designation of evidence in support of it.

Because the Fergusons have claimed that the hazard existed and was not corrected

prior to Nathan’s alleged worksite injury, we do not and need not address whether Poynter

was a correcting or controlling employer. In sum, the Fergusons have failed to establish that

the trial court erred.

Our resolution of this appeal finds support in a case from the Seventh Circuit Court of

Appeals. In Anning-Johnson Co. v. U.S. Occupational Safety & Health Rev. Comm’n, 516

F.2d 1081 (1975), the Seventh Circuit Court of Appeals considered the potential liability of

subcontractors on a multi-employer construction site under OSHA. The issue in Anning-

17
Johnson was whether subcontractors working at a multi-employer construction site could

receive OSHA citations or could be held liable for OSHA penalties for nonserious violations

of promulgated standards to which their employees were exposed, but which the

subcontractors neither created nor were responsible for by contract. In finding that the

subcontractors could neither be cited nor held liable for penalties in that situation, the

Seventh Circuit set out the parties’ positions, which we find instructive here. The position

advanced by the Secretary of Labor in favor of liability follows:

(T)hese contentions by Respondent evade the real issue which is the exposure,
if any, by Respondent of his employees to hazards. The underlying duty of
each and every employer under Section 5 of the Act, regardless of whether an
alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to
refrain from exposing employees to hazards. The Act grants no exceptions nor
does it permit any delegation of this duty. The Act does not abridge the right to
contract, it merely implies that an employer cannot by contract evade this duty
to furnish a place of employment that is free of hazards. This duty is imposed
upon each employer and makes no distinction as to whether the employer is a
general contractor or a subcontractor; it may even include a lessor of
employees relinquishing all control. Further the Act does not allow for any
severance of responsibility predicated upon who produced or created the
hazard or who may initially be responsible for its eradication.

Simply stated, whenever a subcontractor exposes his employees to hazards the
employer subjects himself to the enforcement provisions of the Act and this is
so regardless of who created the hazard or who may be responsible for its
elimination.

Id. at 1085 (quoting Charles S. Powell d/b/a Powell Elec., 3 OSSAHRC 1056, 1060-61

(1973)). The opposing position was summed up as follows and lends support to our

resolution of this appeal:

Admittedly, the respondent is responsible for the “place of employment,” yet
no one should conclude that such responsibility imposed by the Act embraces
the entire work project as shown in this case. This responsibility is the

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 responsibility of the prime contractor. What then is the responsibility of the
respondent, as a subcontractor employer? His responsibility is his worksite or
that portion of the work as provided in his contract of employment. Under the
Act, the respondent is required to comply with occupational safety and health
standards and upon doing so, complys (sic) with the Act by furnishing a place
of employment which is free from recognized hazards that are causing or likely
to cause death or serious physical harm to his employees. Laws usually follow
the rule of reason and thus it would not be reasonable to require a
subcontractor to insure a safe workplace for his employees, if to do so would
embrace an entire work project on which numerous other contractors’
employees are working.

Under section 9(a) (29 U.S.C. s 658(a)) of the Act it is mandatory for an
abatement period to be fixed with respect to each alleged violation.
Respondent then is required to correct any violations, but can he correct a
violation, the creation of which was not of his doing nor over which he has any
control? Can respondent correct a violation which by doing so would interfere
with the work endeavor of another subcontractor? Did Congress intend for an
employer to correct a violation, to cease his portion of the work he is required
to perform under contract, although the cause of the violation has no relation to
his portion of the work under contract? Certainly, these queries must be
resoundingly answered in the negative.

Id. at 1085-86 (quoting Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 at 7-8).

The Fergusons have failed to establish that the trial court erred by the entry of

summary judgment in favor of Poynter on the issue of duty of care.

Judgment affirmed.

BARNES, J., and CRONE, J., concur.

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