ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Mark D. Gerth W.F. Conour
Steven E. Springer Timothy F. Devereux
Michael Wroblewski Jeffrey A. Hammond
Crystal G. Rowe Indianapolis, Indiana
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court FILED
Mar 22 2012, 10:19 am
_________________________________
CLERK
No. 49S02-1106-CT-365 of the supreme court,
court of appeals and
tax court
HUNT CONSTRUCTION GROUP, INC.,
AND MEZZETTA CONSTRUCTION, INC.,
Appellants (Defendants below),
v.
SHANNON D. GARRETT,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49D01-0705-CT-21326
The Honorable David A. Shaheed, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1001-CT-86
_________________________________
March 22, 2012
Sullivan, Justice.
An employee of a concrete subcontractor was injured in a workplace accident during the
construction of Lucas Oil Stadium. She seeks to recover damages for negligence from the
project‟s construction manager by whom she was not employed but whom she contends had a
legal duty of care for jobsite-employee safety. Because we find that the construction manager
did not have, either by the terms of its contracts or by its actions, such a legal duty, we hold that
the construction manager may not be held liable to the worker for negligence.
Background
In the process of removing forming material from concrete, one of Shannon Garrett‟s
coworkers dropped a piece of wood. That piece of wood struck Garrett and injured her head and
left hand. At the time she was injured, both Garrett and her coworker were employees of Baker
Concrete Construction, Inc., which had entered into a contract with the Indiana Stadium and
Convention Building Authority (“Stadium Authority”) to perform concrete work on Lucas Oil
Stadium.
The defendant, Hunt Construction Group, Inc.,1 had entered into a contract with the Sta-
dium Authority to act as the construction manager for the building of Lucas Oil Stadium.2 Hunt
had no contractual relationship with Baker Concrete or any other contractors.
An employee‟s rights and remedies against his or her employer on account of jobsite in-
juries 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 § 22-3-2-13 (2007). Provided with this right in addition to her entitlement to worker‟s
compensation benefits, Garrett sued Hunt for negligence. She then filed a motion for partial
summary judgment, requesting a determination that Hunt was “vicariously liable” for the actions
of Baker Concrete. Hunt opposed Garrett‟s request and filed its own motion for summary judg-
ment, seeking judgment in its favor on grounds that it could not be liable to Garrett for negli-
gence because it did not owe Garrett a duty of work place safety under any recognized theory of
law.
1
Mezzetta Construction, Inc., was also named as a defendant because it “performed functions with Hunt
on the jobsite.” Appellants‟ Br. 2 n.1. Hunt and Mezzetta are referred to collectively in this opinion as
“Hunt.”
2
Hunt had also entered into an agreement with the Indiana Department of Labor and Indiana Occupation-
al Safety and Health Administration (“IOSHA”). That agreement states that it does not “change any con-
tractual obligations between [Hunt and Stadium Authority].” Appellants‟ App. 225. The main focus of
our opinion, then, will be on Hunt‟s contract with Stadium Authority.
2
After a hearing, the trial court ruled in Garrett‟s favor that Hunt could be held vicariously
liable for the actions of Baker Concrete and denied Hunt‟s request for judgment in its favor. The
trial court then certified its rulings for interlocutory appeal. The Court of Appeals accepted the
appeal. It unanimously held that Hunt was not vicariously liable to Garrett for any negligence of
Baker Concrete because Hunt and Baker Concrete did not have the requisite relationship. Hunt
Constr. Grp., Inc. v. Garrett, 938 N.E.2d 794, 799 (Ind. Ct. App. 2010), reh‟g denied. But it was
divided on whether Hunt owed a duty to Garrett such that Hunt may be liable to her for negli-
gence. A majority of the panel held that Hunt owed her a duty through its contracts, id. at 804,
while Judge Friedlander concluded that Hunt did not, id. at 805-06 (Friedlander, J., concurring in
part and dissenting in part).
Hunt sought, and we granted, transfer, Hunt Constr. Grp. v. Garrett, 950 N.E.2d 1212
(Ind. 2011) (table). However, we summarily affirm the unanimous decision of the Court of Ap-
peals reversing the trial court‟s judgment on the issue of vicarious liability.3 Ind. Appellate Rule
58(A)(2).
Discussion
I
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 conven-
tional approach to large construction projects. See Contractor‟s and Construction Manager‟s
Rights and Duties, 2-5B Construction L. Online (MB) P 5B.03 ¶¶ [1][a]-[d] (2011). A conven-
tional construction project typically features owners, architects, engineers, general contractors,
and subcontractors with discrete project responsibilities, none of which consist of overall man-
agement of the construction project as a primary activity. Id. ¶¶ [1][a]-[b]. In contrast, construc-
tion management separates and consolidates the management function in one entity called the
3
In their briefs, the parties discuss the concept of “nondelegable duties” at various points. We find this
concept apt only to the issue of vicarious liability on which, as noted in the text, we summarily affirm the
decision of the Court of Appeals.
3
construction manager. Id. ¶ [1][c]. Construction management offers certain advantages over the
conventional approach – sophisticated cost estimating capabilities, practical analysis of design
alternatives, and shortened development processes. Id. ¶ [1][d]. It also has its disadvantages –
higher fees, coordination problems, and a lack of single-point responsibility for both the con-
struction process and the construction product. Id. A construction manager undertakes a variety
of responsibilities as specified in a written contract between the construction manager and the
project owner. Id. at ¶ [3]. And some of these responsibilities often relate to jobsite safety. Id.
at ¶ [3][f].
As in the case before us today, when the employee of a contractor or subcontractor is in-
jured in a workplace accident on a jobsite where a construction manager arrangement is in place,
the employee sometimes seeks to recover from the construction manager. The first reported case
in Indiana of this nature was decided by the Court of Appeals almost three decades ago. Plan-
Tec, Inc. v. Wiggins, 443 N.E.2d 1212 (Ind. Ct. App. 1983). Plan-Tec has proved to provide a
durable template for resolving the issues in cases like this and we will use it for that purpose
here.
In Plan-Tec, Plan-Tec, Inc., signed a contract with North Clark Community Hospital to
provide construction management services for a hospital construction project. Id. at 1216. After
construction began, the construction manager also assumed additional responsibility for chang-
ing expansion joints on the exterior skin of the building in order to suit the architect‟s modifica-
tions.4 Id. A journeyman carpenter employed by one of a number of subcontractors on the ex-
pansion joint work was injured in a jobsite accident when the scaffold on which he was working
collapsed. Id. at 1216-17. The plaintiff-carpenter sued the defendant-construction manager; a
jury verdict was returned in the plaintiff-carpenter‟s favor. Id. at 1217. On appeal, the defen-
dant-construction manager argued that it owed no legal duty to the project contractors‟ and sub-
contractors‟ employees for their safety and, as such, the jury verdict was contrary to law. Id.
4
This occurred because both of the project subcontractors for exterior work declined responsibility for the
expansion joint work which was not within the contemplation of either of their contracts. Plan-Tec., 443
N.E.2d at 1216.
4
Plan-Tec held that a construction manager owes a legal “duty of care” – a necessary ele-
ment to recover for negligence5 – for jobsite employee safety in two circumstances: (1) when
such a duty is imposed upon the construction manager by a contract to which it is a party, id. at
1218; or (2) when the construction manager “assumes such a duty, either gratuitously or volunta-
rily,” id. at 1219 (citations omitted).
The Court of Appeals first analyzed the contract at issue in the case. It found that there
were no provisions in the contract pursuant to which the construction manager “contractually
accepted the duty to maintain safety on the project.” Id. at 1218. And the court noted that the
“contract unequivocally state[d] that the contractors [were] to have the responsibility for project
safety and the safety of their employees” and that it contained a proviso that “„[i]n no case shall .
. . the Construction Manager . . . have either direct or indirect responsibility for matters relative
to Project safety.‟” Id. at 1218 & n.3 (last bracket in original). The court concluded that the
construction manager had not “contractually accepted a duty of care by which a negligence ac-
tion may be supported.” Id. at 1219.
The court went on to analyze whether the construction manager had assumed a legal duty
for jobsite-employee safety by its actions. Starting with the fact that the carpenter had been in-
jured when the scaffold on which he had been working collapsed, the court observed that the
scaffold and related equipment were all the property of the carpenter‟s employer, used exclusive-
ly for its employees in their work. Id. at 1220. “As a general proposition,” the court said, “under
these facts, [the construction manager‟s] duty to provide [the carpenter] with a safe place to work
would not extend to the operation of the scaffold which was owned and erected by [the carpen-
ter‟s employer] and operated for the benefit of [its] employees.” Id. (citation omitted).
But the court went on to examine whether there was sufficient evidence upon which to
present to a jury the question of whether the construction manager assumed a duty to provide the
carpenter with a safe place to work. Id. at 1220. The court found such evidence in the facts that
the construction manager appointed a safety director, initiated weekly safety meetings, and di-
5
Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010) (“Absent a duty there can be no negligence or liabili-
ty based upon the breach.” (citing Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004)).
5
rected that certain safety precautions be taken by the contractors. Id. In addition, the court said
that the safety director himself testified that each morning he inspected the scaffolding. Id.
To summarize Plan-Tec, the Court of Appeals held that (1) where the construction man-
agement contract did not impose any obligation on the construction manager for jobsite-
employee safety and contracts with project contractors provided that jobsite safety was the re-
sponsibility of the contractors and not the construction manager, the construction manager had
no duty of care for jobsite-employee safety; but (2) where the construction manager took specific
actions related to employee safety, there was an issue of fact as to whether it had assumed a legal
duty of care for employee safety.
II
As mentioned a moment ago, Plan-Tec provides a good template for analyzing this claim
of negligence against a construction manager for jobsite injuries suffered by a subcontractor‟s
employee: whether the construction manager owed the employee a legal duty of care for jobsite-
employee safety requires answering both whether (1) such a duty was imposed upon the con-
struction manager by a contract to which it was a party and (2) the construction manager as-
sumed such a duty, either gratuitously or voluntarily. And indeed Garrett maintains that Hunt
owed her a legal duty of care in these two ways – through Hunt‟s contractual obligations and
through Hunt‟s actions. We consider each of them in turn.
A
In Plan-Tec, the Court of Appeals found that no legal duty of care for jobsite-employee
safety was imposed upon the construction manager by any contract to which it was a party.
First, the construction-management contract itself did not specify that the construction manager
had any responsibilities for safety whatsoever. Id. at 1218. Second, counterpart construction
contracts signed by contractors and subcontractors indicated that they had responsibility for
project safety and the safety of their employees. Id. at 1218 & n.3. Third, those contracts ex-
6
pressly disclaimed any direct or indirect responsibility on the part of the construction manager
for project safety. Id.
Here the record is somewhat different but we reach the same result. Unlike the Plan-Tec
construction manager contract, Hunt‟s contract does impose responsibilities on Hunt related to
safety.6 These provisions regarding a construction manager‟s jobsite-safety obligations are simi-
lar to those that have been held to support a legal duty of care for jobsite safety to employees in
other construction-site cases. See Moore v. Shawmut Woodworking & Supply, Inc., 788 F.
Supp. 2d 821, 825-26 (S.D. Ind. 2011); Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 878
(Ind. Ct. App. 2007), trans. denied; Harris v. Kettelhut Constr., Inc., 468 N.E.2d 1069, 1072-73
(Ind. Ct. App. 1984), trans. denied; Kevin R. Sido, Architect and Engineer Liability: Claims
Against Design Professionals §12.03[D][1] n.56 (3d ed. 2006) (citing cases); cf. Shawnee
Constr. & Eng‟g, Inc. v. Stanley, 962 N.E.2d 76, 84, 86 (Ind. Ct. App. 2011) (finding no duty of
care), trans. denied.
But none of the safety provisions in the construction-management contract here impose
upon Hunt any specific legal duty to or responsibility for the safety of all employees at the con-
struction site. There is no language like that used in Moore, 788 F. Supp. 2d at 825 (“The Con-
tractor shall take reasonable precautions for safety of . . . employees on the Work”); in Stumpf,
863 N.E.2d at 877 (“The Contractor shall take all necessary precautions for the safety of em-
ployees on the work”); or in Harris, 468 N.E.2d at 1072 (“The Contractor shall take all necessary
precautions for the safety of all employees on the Project”).
To the contrary, as recognized by Judge Friedlander in his dissent, other provisions une-
quivocally support the opposite conclusion. Hunt Constr., 938 N.E.2d at 805-06. Hunt‟s con-
tract expressly states that its construction-management services are to be “rendered solely for the
benefit of the [Stadium Authority] and not for the benefit of the Contractors, the Architect, or
other parties performing Work or services with respect to the Project.” Appellants‟ App. 97.
Moreover, the contract provided that Hunt was not “assuming the safety obligations and respon-
6
These provisions, set forth in “Section 2.4.11 Safety” of the construction management contract, are set
forth verbatim in the opinion of the Court of Appeals. See Hunt Constr., 938 N.E.2d at 801-02. We also
set forth several of them, infra. For these reasons, we find it unnecessary to restate them here.
7
sibilities of the individual Contractors,” id. at 92, and that Hunt was not to 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.
Similarly, with regard to Hunt‟s responsibility to review and monitor contractors‟ safety
programs, the contract reiterates that Baker Concrete was “the controlling employer responsible
for [its own] safety programs and precautions,” and that Hunt‟s responsibility to review, monitor,
and coordinate these programs did “not extend to direct control over or charge of the acts or
omissions of the Contractors, Subcontractors, their agents or employees or any other persons per-
forming portions of the Work and not directly employed by [Hunt].” Id. at 102. Thus, the claim
that Hunt owed a legal duty to Garrett to ensure that Baker Concrete safely removed the forming
material from the concrete is contrary to the language of the contracts; Baker Concrete was re-
sponsible for that. In this respect, too, the contractual arrangements here mirror those in Plan-
Tec, where counterpart construction contracts signed by contractors and subcontractors indicated
that they had responsibility for project safety and the safety of their employees.
In short, Hunt did not undertake in its contracts a duty to act as the insurer of safety for
everyone on the project. Rather, Hunt‟s responsibilities were owed only to Stadium Authority,
not to workers like Garrett. Cf. Leppo v. Jacobs Facilities, Inc., No. CCB-09-3415, 2010 U.S.
Dist. LEXIS 79639, at *8 (D. Md. Aug. 6, 2010) (rejecting argument that construction manager
with similar contractual duties engaged in safety monitoring services for the benefit of construc-
tion contractors).
Garrett compares the terms of Hunt‟s contracts to those in Perryman v. Huber, Hunt &
Nichols, Inc., 628 N.E.2d 1240, 1243-45 (Ind. Ct. App. 1994) (holding that construction manager
had contractual duty to enforce safety regulations), trans. denied; and argues that Hunt is not re-
lieved of potential liability merely because Baker Concrete also had certain safety obligations,
see id. at 1244 & n.9, 1245 (noting contractual provisions supporting duty and possibility of
holding multiple parties liable). First, we note that the construction manager in Perryman appar-
ently had more contractual authority over the contractors there than Hunt did in this case. See id.
at 1242 (construction manager had exclusive authority to direct and control work on the entire
8
project). And second, even the court in that case recognized that the construction manager could
have avoided liability by making certain changes to the language of its contracts, including the
addition of language expressly limiting its responsibility for safety. See id. at 1245 n.10 (reason-
ing that if construction manager wanted to avoid liability it should not have included in the con-
tract the provision providing that it would require from contractors compliance with state and
federal regulations, and to make certain its avoidance of liability, it also could have included a
provision with language expressly disavowing responsibility (citing Plan-Tec, 443 N.E.2d at
1218)).
Garrett marshals Rhodes v. Wright, 805 N.E.2d 382 (Ind. 2004) (duty owed by owner in
a premises-liability case), and Young v. Tri-Etch, Inc., 790 N.E.2d 456 (Ind. 2003) (contract‟s
time limitation provision not applicable to plaintiff who was not party to contract), related appeal
on other grounds, Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997 (Ind. 2009), in support of
her argument. While both of these cases were resolved in the plaintiffs‟ favor, neither decision
involved the issue at stake here – whether a contract to which the defendant was a party imposed
upon the defendant a legal duty of care to the plaintiff. Rhodes, 805 N.E.2d at 385-86; Young,
790 N.E.2d at 459. Garrett‟s reliance on these cases is misplaced.
Garrett also cites King v. Northeast Security, Inc., 790 N.E.2d 474 (Ind. 2003) (private
security service owed duty to student assaulted in school parking lot). We concluded in King
that the specific duty undertaken in the contract for security services in that case was meant to
protect students like the one bringing the claim, or in other words, that the duty was owed to the
student. Id. at 485-86. As just discussed, we find no such undertaking in the construction-
management contract here.
We believe our resolution of this claim promotes safety at construction sites. As a gener-
al rule, an owner of property has no duty to provide independent contractors with a safe
workplace.7 Robinson v. Kinnick, 548 N.E.2d 1167, 1168 (Ind. Ct. App. 1989), trans. denied;
see Stumpf, 863 N.E.2d at 876 (employer has no duty to supervise work of independent contrac-
7
Garrett‟s suit is not against Stadium Authority, nor has she argued that Stadium Authority owed her a
duty.
9
tor to assure safe workplace). Thus, Stadium Authority‟s contracting with Hunt for specific re-
sponsibilities related to jobsite safety, and Hunt‟s taking on these responsibilities, was an effort
to promote safety on the construction site beyond that required by law. At oral argument, Garrett
advanced the all-or-nothing proposition that with Hunt‟s responsibility for jobsite safety comes
liability and that the only way to avoid liability is to turn a blind eye toward safety. But safety at
construction sites, especially at large public-works projects like this one, should not be sacrificed
for fear of exposure to liability. The contracts at issue here reflect a way of promoting safety
without exposing construction managers to suits like this one. We agree with Judge Friedlander
that the position advanced by Garrett would “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.” Hunt Constr., 938 N.E.2d at 806 (Friedlander, J., concurring
in part and dissenting in part). Indeed, “[t]he parties clearly sought to avoid such an interpreta-
tion by including clear language limiting [Hunt‟s] liability.” Id.
Hunt‟s contracts did not impose upon it a legal duty of care for jobsite safety to contrac-
tor and subcontractor employees.
B
We now turn to the question of whether Hunt assumed by its actions or conduct a legal
duty of care for jobsite-employee safety, either gratuitously or voluntarily.
There are a series of cases decided by both the Court of Appeals and the federal courts
applying Indiana law reciting that an employee of a construction-site contractor can be owed a
legal duty of care for his or her safety by a project owner or construction manager that, though
not obligated by contract to provide jobsite safety, takes actions such as appointing a safety di-
rector, initiating weekly safety meetings, and directing the contractors to observe certain safety
precautions. Bateman v. Cent. Foundry Div., Gen. Motors Corp., 992 F.2d 722, 725-26 (7th Cir.
1993); Vaughn v. Daniels Co. (W. Va.) Inc., 777 N.E.2d 1110, 1135-38 (Ind. Ct. App. 2002),
aff‟d in relevant part, rev‟d in part, 841 N.E.2d 1133, 1144-45 (Ind. 2006); Merrill v. Knauf Fi-
ber Glass GmbH, 771 N.E.2d 1258, 1270-71 (Ind. Ct. App. 2002), trans. denied; Robinson, 548
N.E.2d at 1169; Teitge v. Remy Constr. Co., 526 N.E.2d 1008, 1014-15 (Ind. Ct. App. 1988);
10
Phillips v. United Eng‟rs & Constructors, Inc., 500 N.E.2d 1265, 1268-69 (Ind. Ct. App. 1986);
Perry v. N. Ind. Pub. Serv. Co., 433 N.E.2d 44, 49-50 (Ind. Ct. App. 1982), trans. denied. Gar-
rett deploys some of these cases in support of her position that Hunt‟s actions in this case dem-
onstrate that it assumed a legal duty of care for her safety.
Of these cases, only Phillips examines the extent of the duty of care for jobsite-employee
safety of a construction manager; most of these cases mention construction managers because
they rely on Plan-Tec. We think they do so with inadequate precision.
It is certainly true that in Plan-Tec, the court held there was a question for the jury as to
whether the construction manager assumed a legal duty of care for jobsite-employee safety (and
that a jury‟s verdict to that effect was not contrary law) based on the following evidence: that the
construction manager apparently appointed a safety director; that the construction manager in-
itiated weekly safety meetings and directed that certain safety precautions, such as building
guard rails around floor openings and wearing hard hats in working areas, be taken by the con-
tractors; and that each morning the construction manager‟s safety director inspected the scaffold-
ing that collapsed. 443 N.E.2d at 1220. But to say that Plan-Tec holds that it always creates a
jury question as to duty when a construction manager takes such actions ignores a key aspect of
Plan-Tec. In Plan-Tec, the construction documents clearly indicated that the individual contrac-
tors were responsible for safety and that Plan-Tec was not responsible for safety. But after the
project was underway, the construction manager explicitly agreed to take on specific supervisory
responsibilities beyond those set forth in the original construction documents.8 “As a general
proposition,” the Court of Appeals said, the construction manager‟s responsibilities would not
extend to a carpenter employed by a contractor. Id. But because the construction manager took
on responsibilities beyond those of the initial construction documents, it was appropriate to ex-
amine those additional responsibilities to see if they created a legal duty of care for employee
8
As discussed in Part I (see footnote 4, supra, and accompanying text), the specific work in which the
carpenter was engaged when the scaffold collapsed – changing expansion joints on the exterior skin of the
building in order to suit the architect‟s modifications – was not work within the contemplation of either of
the project‟s subcontractors for exterior work, one of which was the carpenter‟s employer. When both
declined responsibility for the expansion joint work, the construction manager “then assumed the respon-
sibility for the work order and had it performed by [the carpenter‟s employer].” Plan-Tec, 443 N.E.2d at
1216.
11
safety on that part of the project for which the construction manager had assumed additional re-
sponsibilities.
We hold that for a construction manager not otherwise obligated by contract to provide
jobsite safety to assume a legal duty of care for jobsite-employee safety, the construction manag-
er must undertake specific supervisory responsibilities beyond those set forth in the original con-
struction documents. In the case before us today, there is no contention that Hunt undertook any
such responsibilities, at least for any part of the project on which Garrett was working.
Hunt‟s specific actions regarding safety did not go beyond what was required of it in the
original construction documents. Each action Hunt took that Garrett contends constituted Hunt‟s
assumption of a legal duty of care for her safety, Hunt was in fact required to perform by its con-
tract with the Stadium Authority. Unlike the situation in Plan-Tec, these actions did not go
beyond what was required of Hunt in the original construction documents.
For example, Garrett identifies Hunt‟s safety representatives conducting a safety commit-
tee meeting every Monday at which each contractor or subcontractor was required to have a
competent person present as an action that demonstrated Hunt‟s assumption of a legal duty of
care for her safety. Appellee‟s Br. 29. But under section 2.4.4.1 of Hunt‟s contract with the Sta-
dium Authority, Hunt was required to “schedule and conduct weekly meetings [with Trade Con-
tractors] to discuss such matters as safety.” Appellants‟ App. 98.
Similarly, Garrett identifies the fact that Hunt‟s safety representatives inspected the site
daily for violations of the project safety program as another action that demonstrated Hunt‟s as-
sumption of a legal duty of care for her safety. Appellee‟s Br. 29-30. But under section 2.4.11.2
of Hunt‟s contract with the Stadium Authority, Hunt was required to “routinely inspect the
Project to determine: (a) if the Contractors [had] erected and/or implemented appropriate safety
procedures and warnings to guard against injury [to] members of the general public, including
employees of or visitors to the Existing Facilities.” Id. at 102.
12
Several more examples should suffice:
Action Garrett identifies as demonstrating Hunt‟s assumption of a legal
duty of care for her safety: Hunt‟s safety representatives completed daily safety
observation reports that contained their safety observations and specifically in-
cluded the activities of the subcontractors on the project. These reports would be
filed electronically with Hunt and a copy sent to all subcontractors. They in-
cluded the corrective action required to be taken and whether the safety issue was
corrected. Appellee‟s Br. 30.
Provision of contract between Hunt and the Stadium Authority requiring
the action: § 2.4.11.3. “[I]mmediately notify the involved Contractor, if the Con-
struction Manager observes any construction activity or practice it believes to be
in violation of the safety program as set forth in the Contract Documents, OSHA,
IOSHA or other applicable safety standards and order the Contractor to take all
appropriate steps to correct the violation . . . .” Appellants‟ App. 102-03.
Action Garrett identifies as demonstrating Hunt‟s assumption of a legal
duty of care for her safety: Hunt exercised its authority to require contractors and
subcontractors to initiate disciplinary procedures when safety policies and proce-
dures were violated. Appellee‟s Br. 31.
Provision of contract between Hunt and the Stadium Authority requiring
the action: § 2.4.11.3 set forth above; § 2.4.11.4. Notify the Stadium Authority
and Architect in writing and recommend corrective action “if any Contractor fails
to promptly correct such construction activity or practice or fails to coordinate its
safety program with those of other Contractors.” Appellants‟ App. 103.
We have reviewed with some care each of the specific actions that Garrett identifies as
demonstrating Hunt‟s assumption of a legal duty of care for her safety and have found each to
fall within a contractual obligation established by Hunt‟s contract with the Stadium Authority.
We have already established that the contract itself did not impose upon Hunt any legal duty of
care for jobsite-employee safety. Because Hunt did not undertake any jobsite-safety actions
beyond those required by that contract, it did not assume by its actions any legal duty of care for
jobsite-employee safety.
This contrasts with Plan-Tec, where the construction manager took on additional jobsite
responsibilities beyond those established in its initial construction-management agreement and
then took actions that raised an issue of fact as to whether it had assumed a legal duty of care for
employee safety in that part of the project for which it undertook additional responsibilities.
13
Hunt did not assume a duty to Garrett through its actions or conduct.
Conclusion
The judgment of the trial court is reversed, and the case is remanded for proceedings con-
sistent with this opinion.
Shepard, C.J., and Rucker and David, JJ., concur.
Dickson, J., dissents, believing that the duty of care owed by the construction manager is a mixed
question of fact and law, and that, under the facts of this case, material issues of fact exist that
preclude summary judgment for either party.
14