FILED
May 23 2016, 9:59 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
John P. Daly, Jr. Donald G. Orzeske
Golitko & Daly, PC Beth L. Riga
Indianapolis, Indiana Goodin Orzeske & Blackwell, PC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Ryan, May 23, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1508-CT-1198
v. Appeal from the Marion Superior
Court
TCI Architects/Engineers/ The Honorable Thomas Carroll,
Contractors, Inc. and BMH Judge
Enterprises, Inc., d/b/a Craft Trial Court Cause No.
Mechanical, 49D06-1303-CT-8401
Appellee-Defendant.
May, Judge.
[1] Michael Ryan was injured while working on a construction project. Ryan
worked for Romines, a subcontractor to Craft, who was a subcontractor to the
general contractor, TCI. Ryan sued Craft and TCI, claiming they had a duty to
provide him a safe workplace and their breach caused his injury. Ryan moved
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 1 of 15
for partial summary judgment, claiming both defendants had a non-delegable
contractual duty toward him. TCI 1 moved for summary judgment on duty,
breach, and proximate cause. As TCI had no duty toward Ryan, we affirm.
Facts and Procedural History 2
[2] Ryan was an employee of B.A. Romines Sheet Metal. Ryan had been a sheet
metal worker since 1999 and was a member of the sheet metal workers’ union.
The union assigned him to work for Romines on a Gander Mountain store in
Lafayette. On his second day there, Ryan was removing ductwork hanging
above the second-floor decking of the building. Ryan claimed he lost his
balance while standing on the top step of an eight-foot ladder and fell.
[3] TCI was general contractor for the work on the store. The contract TCI and
Gander entered into was “DBIA Document No. 530 1998 Standard Form of
Agreement Between Owner and Design-Builder.” (Id. at 52.) The contract
includes DBIA Document No. 535, Standard Form of General Conditions of
Contract Between Owner and Design-Builder.
[4] Section 2.8.1 of the general contract provided TCI “recognizes the importance
of performing the Work in a safe manner so as to prevent damage, injury or loss
1
It is not clear from this record whether Craft moved for summary judgment, but this appeal involves only
TCI.
2
We heard oral argument before the Indiana State Bar Association’s Leadership Development Academy on
February 16, 2016, at the Indiana State Library in Indianapolis. We thank the ISBA and the State Library
for their hospitality and we commend counsel on the quality of their oral advocacy.
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 2 of 15
to . . . all individuals at the site, whether working or visiting.” (Id. at 71.) It
assumed “all responsibility for implementing and monitoring all safety
precautions and programs related to the performance of the Work.” (Id.) It
would “designate a safety Representative with the necessary qualifications and
experience to supervise the implementation and monitoring of all safety
precautions and programs related to the Work.” (Id.)
[5] Section 2.8.3 provided, however, TCI’s
responsibility for safety . . . is not intended in any way to relieve
Subcontractors and Sub-Subcontractors of their own contractual
and legal obligations and responsibility for . . . taking all
necessary measures to implement and monitor all safety
precautions and programs to guard against injury, losses,
damages or accidents resulting from their performance of the
work.
Id.
[6] TCI hired several subcontractors, at least one of which, Craft Mechanical,
contracted with Ryan’s employer, B.A. Romines Sheet Metal. The contract
between TCI and Craft provided Craft “shall be solely responsible for the
protection and safety of its employees.” (Id. at 111.) The Craft subcontract
with Romines provided Craft “would assume toward [Romines] all obligations
and responsibilities that [TCI] . . . assumes toward [Craft].” (Id. at 138.) It
obliged Romines to “take reasonable safety precautions with respect to
performance of this Subcontract,” to “comply with safety measures initiated by
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 3 of 15
[Craft] and with all applicable laws . . . for the safety of persons and property in
accordance with the requirements of the Prime Contract.” (Id. at 140.)
[7] Ryan moved for partial summary judgment, claiming TCI had a non-delegable
contractual duty toward him. TCI moved for summary judgment on duty,
breach, and proximate cause. The trial court denied Ryan’s motion, finding
“genuine issues of material fact exist with regard to the essential element of
duty.” (Id. at 11.) But it then granted the TCI motion, finding there were not
any genuine issues of material fact to be submitted to a jury.
Discussion and Decision
[8] Summary judgment is appropriate where the designated evidence shows there is
no genuine issue as to any fact material to a particular issue or claim and that
the moving party is entitled to judgment as a matter of law. WellPoint, Inc. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 29 N.E.3d 716, 720 (Ind. 2015),
modified on reh’g on other grounds, 38 N.E.3d 981 (Ind. 2015). An appellate court
reviews entries of summary judgment de novo, through the same lens as the trial
court, construing all designated evidence and reasonable inferences and
resolving any doubts as to the existence of a genuine issue of material fact in
favor of the nonmoving party. Id. at 720-21. The interpretation of a contract is
particularly well-suited for de novo appellate review, because it generally
presents questions purely of law. Id. at 721. Clear and unambiguous contract
language is given its ordinary meaning. Id. Where contractual language is
ambiguous, our primary goal is to determine the intent of the parties at the time
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 4 of 15
the contract was made. Id. The party appealing a decision on summary
judgment bears the burden of persuading us the ruling was erroneous. Morris v.
Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012).
[9] The tort of negligence consists of three elements: 1) a duty owed to the plaintiff
by the defendant; 2) a breach of that duty by the defendant; and 3) injury to the
plaintiff proximately caused by that breach. Bloemker v. Detroit Diesel Corp., 720
N.E.2d 753, 756 (Ind. Ct. App. 1999), reh’g denied, trans. denied. The existence
of a duty owed to the plaintiff is usually a question of law for the court’s
resolution. Id. at 757. Summary judgment is rarely appropriate in a negligence
action, but it may be suitable to determine the legal question of whether there is
a duty. Id. Absent a duty, there can be no breach, and thus, no basis for
recovery under a negligence theory. Id.
[10] As a general rule, an employer does not have a duty to supervise the work of an
independent contractor to assure a safe workplace and, consequently, is not
liable for the negligence of the independent contractor. Stumpf v. Hagerman
Const. Corp., 863 N.E.2d 871, 876 (Ind. Ct. App. 2007), trans. denied. The
rationale behind the rule is that a general contractor typically exercises little, if
any, control over the means or manner of the work of its subcontractors, and
requires only that the completed work meet the specifications of the owner in its
contract with the general contractor. Id. But we have recognized an exception
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 5 of 15
to that general rule when one party is by law or contract 3 charged with
performing the specific duty. Id.
[11] In determining whether a party assumed a duty by contract, as Ryan argues
TCI did, we look at the parties’ intent at the time of execution of the contract as
disclosed by the language used to express their rights and duties. Id. We look
to the contract as a whole to determine if a party is charged with a duty of care
pursuant to the contract. Id. We accept an interpretation of the contract that
harmonizes its provisions. Id. If a contract affirmatively evinces intent to
assume a duty of care, actionable negligence may be predicated on the
contractual duty. Id. Such duty is considered non-delegable, and a principal
will be liable for the negligence of the contractor because the responsibilities are
deemed so important to the community that the principal should not be
permitted to transfer these duties to another. Id. at 876-77.
[12] To impose liability, a contract provision must be specific as to the duty assumed
by the general contractor. Harris v. Kettelhut Constr., Inc., 468 N.E.2d 1069,
1076-77 (Ind. Ct. App. 1984), reh’g denied, trans. denied. In Stumpf, we
determined Hagerman, the general contractor, contractually assumed a duty of
3
On appeal Ryan argues the language in the TCI contract is a “plain English” version of an American
Institute of Architects (AIA) form contract that we have held creates a duty of safety on the part of the
builder on a construction site. It is not. TCI correctly notes the language is in fact a form contract from the
Design-Build Institute of America (DBIA), not the AIA, and as explained below the language is significantly
different. The parties direct us to no case law interpreting the DBIA contract language.
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 6 of 15
care to the employees of its subcontractors when its contract required
Hagerman
to take precautions for the safety of employees on the work site.
As in Perryman [v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240
(Ind. Ct. App. 1994), trans. denied], Hagerman was required to
designate a responsible member of its organization whose duty
would be the prevention of accidents. Paragraph forty-four of the
contract further provided: “The Contractor shall administer and
comply with all the rules, standards, and regulations of the
Construction Safety Act [and OSHA].” Appellants’ App. p. 740.
Taken as a whole, we believe that this contractual language
evinces intent by the parties to charge Hagerman with a duty of
care for the safety of all the employees on the project, including
the employees of its subcontractors.
863 N.E.2d at 878.
[13] Our decision was premised on this language in the contract between Hagerman
and Purdue University:
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 4 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
4
We noted that a duty cannot be created by an OSHA regulation alone. Stumpf, 863 N.E.2d at 876 n.2. A
determination made under OSHA regulations is irrelevant as to the issue of whether the defendant owed the
plaintiff a duty because an OSHA standard cannot be used to expand an existing common law or statutory
duty, nor can it be used as evidence of an expanded duty of care. Id.
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 7 of 15
organization on the work, whose duty shall be the prevention of
accidents.
Id. at 877 (footnote added). The Stumpfs contended that language indicated
Hagerman intended to assume a duty of care to all the employees on the
project, and that it was required to ensure that the subcontractors implemented
safety procedures. We agreed. Id.
[14] The corresponding language in the TCI contract 5 is different. It provides in
section 2.8.1 that:
[TCI] recognizes the importance of performing the Work in a safe
manner so as to prevent damage, injury or loss to (i) all
individuals at the site, whether working or visiting, (ii) the Work,
including materials and equipment incorporated into the Work or
stored on-Site or off-Site, and (iii) all other property on the Site or
adjacent thereto. [TCI] assumes “responsibility for implementing
and monitoring all safety precautions and programs related to the
performance of the Work. [TCI] shall, prior to commencing
construction, designate a Safety Representative with the
necessary qualifications and experience to supervise the
implementation and monitoring of all safety precautions and
programs related to the Work. Unless otherwise required by the
Contract Documents, [TCI’s] Safety Representative shall be an
individual stationed at the Site who may have responsibilities on
the project in addition to safety. The Safety Representative shall
5
In his brief Ryan offers a “table” that he says “sets out the [TCI] and Stumpf contract language side by side
for easy comparison.” (Appellant’s Br. at 5-6.) The Stumpf contractual language as Ryan presents it in the
table does not exactly match the contract language as we quoted it in Stumpf. However, it does not appear
the differences are legally significant. Our reading of Stumpf indicates most of the provisions of the Stumpf
contract Ryan includes in his “table” cannot be found in the Stumpf decision. If the Stumpf contract is
included in Ryan’s Appendix, the table of contents does not so indicate.
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 8 of 15
make routine daily inspections of the Site and shall hold weekly
safety meetings with [TCI’s] personnel, Subcontractors and
others as applicable.
(App. at 71) (emphasis added).
[15] The Stumpf language that we found gave rise to a general contractor’s duty
obliged the general contractor to 1) take all necessary precautions for the safety
of employees on the work; 2) 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; and 3) designate a person whose duty is prevention of accidents.
863 N.E.2d at 877.
[16] We addressed the effect of similar contract language in Capitol Const. Servs., Inc.
v. Gray, 959 N.E.2d 294 (Ind. Ct. App. 2011). Capitol, the general contractor,
agreed to “comply with all laws, ordinances, rules and regulations bearing on
the project” and “maintain physical conditions and employee performance on
the jobsite during the course of construction to conform with all local and
federal laws, rules and regulations including those covered by the Occupational
Safety and Health Act of 1970.” Id. at 299. The contract provided Capitol was
“as fully responsible for the acts and omissions of his subcontractors, and of
persons either directly or indirectly employed by them, as he is for the acts and
omissions of persons employed directly by him.” Id. Capitol would “provide
and require the use of conventional fall protection, i.e. personal fall arrest
systems, safety net systems or guardrail systems . . . when its employees or
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 9 of 15
subcontractors are performing construction work that is in excess of six feet above
a lower level. Id. (emphasis added). Those provisions, we determined, “go
beyond requiring that Capitol merely supervise the work of its employees and
subcontractors, and instead they contain language requiring the contractor to
take precautions for the safety of employees on the work site, thereby
affirmatively evincing the intent on Capitol’s part to assume a duty of care.” Id.
at 303.
[17] We noted in Capitol that the Stumpf, Perryman, and Harris contracts evinced
intent by the parties to charge the general contractor with a duty of care for the
safety of all the employees on the project, including the employees of its
subcontractors. Id. at 303. All three contracts contained similar language
requiring the contractor to take precautions for the safety of employees on the
work site. Id. In Stumpf, for example, Hagerman was contractually required to
designate a member of its staff whose duty would be to prevent accidents.
Capitol, 959 N.E.2d at 302.
[18] The TCI contract, by contrast, does not require TCI to “take precautions” as
did the Stumpf contract, id., but instead says TCI “recognizes the importance”
of safety. (App. at 71.) TCI’s safety representative was not someone “whose
duty shall be the prevention of accidents,” 863 N.E.2d at 877, as was the
designated safety representative in Stumpf, but instead was someone charged
with “supervis[ing] the implementation and monitoring” of safety precautions.
(App. at 71.) That TCI’s representative is charged only with “supervising”
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 10 of 15
suggests the “implementation and monitoring” would be done by someone else;
the TCI subcontracts indicate the subcontractors had that responsibility.
[19] In Capitol, we distinguished the Stumpf, Perryman, and Harris contracts from the
contract in Helms v. Carmel High Sch. Vocational Bldg., 844 N.E.2d 562, 564 (Ind.
Ct. App. 2006), aff’d in part by 854 N.E.2d 345 (Ind. 2006), where the general
contractor was obliged to ensure that its construction “conform to all applicable
laws of the State of Indiana.” That language did not evince an intent that the
general contractor had contracted to provide a safe worksite for its
subcontractors, id. at 566, because unlike the Stumpf contract, the language did
not
specifically assign[] [the general contractor] the duty to provide
for the safety of its employees and to prevent injury to
employees. Furthermore, [the general contractor] contractually
agreed to administer and comply with OSHA regulations. [The
general contractor] was also contractually required to designate a
member of its staff whose duty would be to prevent accidents.
Capitol, 959 N.E.2d at 303 (quoting Stumpf, 863 N.E.2d at 878).
[20] Similarly, in Shawnee Const. & Eng’g, Inc. v. Stanley, 962 N.E.2d 76, 84 (Ind. Ct.
App. 2011), trans. denied, we determined when the general contract and the
relevant subcontract were taken as a whole, “neither contract evinces a duty
upon Shawnee [the general contractor] to ensure the safety of all persons
providing services.” Id. For example, no provisions in the agreements
delegated a duty of inspection to Shawnee. We noted the subcontract, like the
Craft subcontract in the case before us, provided that Schust, the subcontractor
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 11 of 15
who employed Stanley, assumed “entire responsibility and liability for any and
all damage and injury of any kind or nature whatsoever to all persons.” Id.
Schust did not expect Shawnee to supervise, monitor, or be involved in Schust’s
safety practices and it understood the Subcontract Agreement to assign sole
responsibility to Schust to set safety standards for its employees and to monitor
its employees’ compliance. Id.
[21] The TCI contract is more like those in Helms and Shawnee, and it does not
impose a duty of care toward the employees of TCI’s subcontractors because
the contract terms do not “go beyond requiring that [TCI] merely supervise the
work of its employees and subcontractors” as they did in Capitol. Rather, as
noted above, TCI “recognizes the importance of” safety, and its Safety
Representative is obliged to “supervise the implementation and monitoring” of
safety matters. (App. at 71.) We accordingly affirm summary judgment for
TCI. 6
[22] Affirmed.
Najam, J., concurs.
Riley, J., dissents with separate opinion.
6
As we hold TCI had no duty of care toward employees of its subcontractors, we do not address Ryan’s
argument TCI’s duty could not be delegated.
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 12 of 15
IN THE
COURT OF APPEALS OF INDIANA
Michael Ryan, Court of Appeals Case No.
49A02-1508-CT-1198
Appellant-Plaintiff,
v.
TCI Architects/Engineers/
Contractors, Inc. and BMH
Enterprises, Inc., d/b/a Craft
Mechanical,
Appellee-Defendant.
Riley, Judge dissenting.
[23] I respectfully dissent from the majority’s conclusion that “the TCI contract does
not impose a duty of care toward the employees of TCI’s subcontractors
because the contract terms do not ‘go beyond requiring that [TCI] merely
supervise the work of its employees and subcontractors[.]’” Slip op. p. 12. The
majority’s decision is based on an analysis of the contractual language and its
close resemblance to Helms, which, in turn, distinguishes it from Stumpf, Capitol,
Perryman, and Harris.
[24] By analogizing to Helms and distinguishing from Stumpf, the majority elevates
form over substance in its interpretation of the contractual provisions regarding
safety. Here, TCI “recognize[d] the importance of performing the Work in a
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 13 of 15
safe manner so as to prevent damage, injury or loss to (i) all individuals at the
Site[.]” (Appellant’s App. p. 71). In this regard, TCI “assume[d] responsibility
for implementing and monitoring all safety precautions and programs related to
the performance of the Work.” (Appellant’s App. p. 71). To that end, TCI
“shall, prior to commencing construction, designate a Safety Representative . . .
to supervise the implementation and monitoring of all safety precautions and
programs related to the Work.” (Appellant’s App. p. 71). In connection with
this responsibility, the Safety Representative “shall make daily inspections of
the site and shall hold weekly safety meetings with [TCI’s] personnel,
Subcontractors and others as applicable.” (Appellant’s App. p. 71). TCI
contractually agreed to perform the work in accordance with the “Legal
Requirements,” which are defined as “all applicable federal, state, and local
laws, codes, ordinances, rules, regulations, orders and decrees of any
government or quasi-government[.]” (Appellant’s App. p. 68). Prior to
commencing work on the site, “[a]ll TCI employees, tradesmen and
subcontractors” had to “comply with . . . all OSHA and TCI guidelines” and
were required to report all injuries to the TCI Superintendent or Assistant
Superintendent. (Appellant’s App. p. 250). Moreover, during the construction
phase of the project, TCI committed that it “shall at all times exercise complete
and exclusive control over the means, methods, sequences and techniques of
construction.” (Appellant’s App. p. 70). Despite TCI’s assertion to the
contrary, in the Standard Form of Agreement, TCI agreed to “provide all
material, equipment, tools and labor necessary to complete the Work described
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 14 of 15
in and reasonably inferable from the Contract Documents.” (Appellant’s App.
p. 53).
[25] By assuming the responsibility of the implementation and monitoring of the safety
programs, and the assignment of a Safety Representative, TCI affirmatively
evinced an intent to assume a non-delegable duty of care, which placed it
directly in line with Stumpf. See also Perryman, 628 N.E.2d at 1244 (where we
found it important that the general contractor was responsible for reviewing the
safety programs of the subcontractors); Moore v. Shawmut Woodworking & Supply,
Inc., 788 F. Supp. 2d 821, 825 (S.D. Ind. 2011) (where the court found a duty of
care based on, among other, the contractual provisions that “[t]he Contractor
shall be solely responsible for and have control over the means, methods,
techniques, sequences and procedures. . . of the Work []” and “[t]he Contractor
shall be responsible for initiating, maintaining and supervising all safety
precautions[.]”). Accordingly, I would reverse the trial court’s summary
judgment in favor of TCI and grant Ryan’s partial summary judgment with
respect to TCI.
Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016 Page 15 of 15
Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical
Combined Opinion