Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical

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

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 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.

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 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

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 [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

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 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

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 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.

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 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.

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 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.

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 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

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 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”

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 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
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 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.

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 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

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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

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 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.

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