Mark Gleaves v. Messer Construction Company and PERI Formwork Systems, Inc.

FILED
Jun 13 2017, 6:28 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher G. Stevenson MESSER CONSTRUCTION
William E. Winingham COMPANY
Wilson Kehoe Winingham LLC Mark D. Gerth
Indianapolis, Indiana Michael Wroblewski
Louis J. Britton
Kightlinger & Gray, LLP
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE PERI
FORMWORK SYSTEMS, INC.
Scott S. Morrisson
Blake P. Holler
Krieg DeVault LLP
Carmel, Indiana
Libby Yin Goodknight
Krieg DeVault LLP
Indianapolis, Indiana
Michael J. Halaiko
Jonathan A. Singer
Miles & Stockbridge, P.C.
Baltimore, Maryland

IN THE
COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017 Page 1 of 18
 Mark Gleaves, June 13, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1609-CT-2140
v. Appeal from the Marion Superior
Court
Messer Construction Company The Honorable James A. Joven,
and PERI Formwork Systems, Judge
Inc., Trial Court Cause No.
Appellees-Defendants 49D13-1211-CT-44519

Baker, Judge.

[1] On October 9, 2012, Mark Gleaves, a construction worker employed by

Whittenberg Construction (“Whittenberg”), was working at the construction

site of the Indiana University Neuroscience Building when a sixteen-foot-long

2x4 lumber infill struck him in the head, inflicting serious injury. Whittenberg

was a concrete contractor; Messer Construction Company (“Messer”) was the

construction manager of the construction project; and PERI Formwork

Systems, Inc. (“PERI”), was the manufacturer of the formwork Whittenberg

was using to form the walls of the building. Gleaves sued Messer, alleging that

it had assumed a duty of reasonable care for his safety on the jobsite and that it

breached that duty, and PERI, alleging that it failed to provide adequate

warnings and instructions to end users and that it was not an open and obvious

danger that lumber infills could eject during the removal process and strike a

person standing a safe distance away. The trial court granted Messer’s motion

for summary judgment, finding that Messer did not owe a duty to Gleaves, and

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 PERI’s motion for summary judgment, finding that because the hazard of this

construction process is open and obvious, PERI did not have a duty to warn

users about the dangers in the use of PERI forms. Gleaves now appeals.

Finding no error, we affirm.

Facts 1

The Accident

[2] Messer contracted with Indiana University (“IU” or “Owner”) for construction

management services for the construction of the Neuroscience Building in

Indianapolis. Whittenberg also contracted directly with IU to perform concrete

work on the building. Whittenberg has performed concrete construction work

using concrete formwork at more than one hundred jobsites, and it has used

PERI-brand formwork in nearly all of its jobsites over the last fifteen years.

[3] PERI manufactures and supplies formwork systems for concrete contractors’

use in forming new concrete structures until the structures harden and become

self-supporting. PERI manufactured and supplied the formwork system that

Whittenberg used in this construction project. A PERI form is used to pour

concrete walls; the system includes the use of infills to bridge gaps in the

formwork. To set PERI forms, large panels are used first; progressively smaller

1
We heard oral argument on Thursday, May 18, 2017, at the Monroe County Courthouse. We thank the
Indiana State Bar Association for organizing the oral argument. We also thank counsel for their informative
and engaging oral advocacy and subsequent discussion with the members of the bar association’s Leadership
Development Academy.

Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017 Page 3 of 18
 sized panels are then used until the gap is small enough to fill with a lumber

infill. Whittenberg supplied the lumber and materials for the infills, and

Whittenberg’s carpenters made the infills on the construction site. PERI does

not track the construction sites at which its forms are used; at this construction

site, Whittenberg controlled the use of the PERI forms, including their location,

installation, and removal.

[4] Gleaves’s general duties at the construction site involved cleaning up after the

carpenters, cleaning concrete forms, assisting with concrete pours, and

retrieving discarded lumber infills used by Whittenberg. Gleaves had prior

experience working on forming concrete walls, but he had not worked with

PERI concrete forms before this construction project. When Gleaves began

working on the construction project, Whittenberg had him watch a video about

PERI forms. Whittenberg provided Gleaves with personal protection

equipment, including a safety harness and a hard hat; it also held weekly and

monthly safety meetings for its employees.

[5] On October 9, 2012, a crane was wrecking a section of formwork away from a

concrete wall. “Wrecking” is a term of art in the concrete construction industry

that involves the dismantling of the formwork used to form a concrete structure

after the concrete has cured. Part of the wrecking process involved Whittenberg

employees pushing to the ground unsecured lumber infills before removing the

PERI forms with overhead cranes and taking them to another area.

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[6] Gleaves was working in a trench at the construction site patching tie holes in

the concrete walls and picking up material in the trench. As the formwork was

pulled up and away by the crane, a sixteen-foot 2x4 lumber infill was ejected

from the form being lifted and struck Gleaves in the head while he was in the

trench. No audible warning signal was given before the crane lifted the form

that struck Gleaves. Prior to the accident, Gleaves did not see the crew above

him wrecking the form that led to the accident.

The Contracts

[7] Under Messer’s contract with IU, Messer’s duties were owed to IU and not to

any contractors or other third parties. The contract included the following

provisions about safety at the construction site:

 Messer was to provide on-site administration of the construction
contract.
 Messer was to use its best efforts to obtain satisfactory performance from
each contractor, to recommend courses of action to IU when
requirements of the construction contract were not being fulfilled, to
determine that the work of each contractor was being performed
according to the requirements of the construction contract, and to notify
IU and the contractor of defects and deficiencies in the work.
 With respect to each contractor’s own work, Messer did not have control
over or charge of nor was responsible for construction means, methods,
techniques, or safety precautions and programs in connection with the
work of each contractor because these things were solely the contractor’s
responsibility under its contract.
 Messer did not have control over or charge of acts or omissions of the
contractors or any other person performing work not directly employed
by Messer.

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  Messer was required to provide and maintain an effective safety
program. Each contractor was required to conform to Messer’s Safety,
Health and Environmental Program and its Safety4Site Program.
 Every worker was required to attend a safety orientation before working
on the site. The orientation was to take place in Messer’s trailer.
 If a contractor did not re-erect a barricade or safety device after the
completion of a work activity, Messer would perform the work.
 Upon notification of a safety deficiency, the contractor responsible was
to use any and all means necessary to correct the situation immediately.
Messer could remove the contractor’s employee or employees if they
failed to address the situation.

Messer’s App. Vol. II p. 11, 13, 16-17, 172.

[8] The American Institute of Architects Document 232, which governed general

conditions for construction, stated that Messer was to be responsible for the

oversight of the health safety programs of the contractors; each contractor was

to remain the controlling employer as to its employees and was to comply with

the applicable safety laws; and Messer’s responsibility for review of safety

precautions did not extend to direct control over or charge of the acts or

omissions of the contractors or their employees, nor did it constitute approval of

safety precautions or any construction means, methods, or procedures. The

AIA Document A232 also provided that Whittenberg was responsible for

initiating, maintaining, and supervising all safety precautions and programs

connected with the performance of its contract. Id. at 142.

[9] The Messer Safety4Site program was established by Messer in order to reduce

unsafe conditions that could cause accidents and applied to all contractors. The

Safety4Site program provided that:

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  Each contractor was to conduct a meeting before every work shift to
discuss the work to be done during the shift and to establish a safe plan of
action to accomplish the work. All employees of the contractor were to
attend.
 When there was a safety violation, Messer was to remove the
contractor’s employee from the site for the rest of the day.
 It was not Messer’s intention to interfere in the contractor’s relationship
with its employees. Messer reserved the right to take immediate action
to rectify unsafe situations and to direct an employee of a contractor to
leave the site if the contractor’s management personnel were not on site.
 Messer did not assume any responsibility to a contractor or its employees
for supervising or monitoring the safety precautions. Messer did not
assume any duty to detect and require correction of violations. Messer
was allowed but not required to make periodic inspections of the
construction site.
 Sanctions provided under Safety4Site for individuals and contractors are
not exclusive and Messer reserved the right to pursue other remedies.

Id. at 155-57.

The Safety Instructions

[10] PERI includes safety instructions in the assembly instruction manual that

comes with the formwork. PERI’s public website provides safety instructions

and product information. Its safety instructions state that the operator must

ensure that the instructions are available to the users, and that all workers who

work with the product must be familiar with the safety instructions. The

instructions advise that failing to adhere to assembly and safety instructions

could lead to accidents; that the contractor has to provide safe working areas for

employees and clearly mark and cordon off areas of risk; that all loose parts had

to be removed or secured during the lifting and moving procedure; and that

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 contractors must not tear off the formwork panels with the crane. PERI’s App.

Vol. II p. 53-54, 70, 113.

[11] Whittenberg’s 2012 Safety Organizational Plan governed its employees at the

construction site. Its plan required employees to take precautions to prevent

access to danger zones in which an overhead hazard was present. It provided

that barricades must be used to prevent access into an unsafe area, such as

where objects could fall from overhead; when overhead cranes were used, the

swing radius must be marked or barricaded; employees must not stand under

loads when feasible; and the crane operator must signal with the horn when he

must fly a load over the heads of employees as a warning. Id. at 17, 23-24.

Procedural History

[12] On November 16, 2012, Gleaves filed a complaint against Messer and PERI.

On November 13, 2014, he filed a motion for partial summary judgment

against Messer. On December 1, 2014, PERI filed a motion for summary

judgment, arguing that it did not owe a duty to warn and that its product did

not include lumber infills. On December 2, 2014, Messer filed a motion for

summary judgment, arguing that it did not owe a duty to Gleaves.

[13] On March 5, 2015, a hearing took place during which all three parties presented

argument. On August 26, 2016, the trial court granted summary judgment in

favor of Messer and denied Gleaves’s motion for partial summary judgment.

On August 29, 2016, the trial court granted summary judgment in favor of

PERI. Gleaves now appeals.

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 Discussion and Decision
I. Standard of Review
[14] Our standard of review on summary judgment is well established:

We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘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 judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C )).
“A fact is ‘material’ if its resolution would affect the outcome of
the case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

II. PERI
[15] Gleaves alleges that PERI failed to provide adequate warnings and instructions

to end users and that it was not an open and obvious danger that lumber infills

could eject during removal and strike a person. Specifically, Gleaves asserts

that PERI knew that using excessive force to pry forms loose from poured

concrete walls could lead to injury, but it failed to provide any instructions or

warnings concerning the potential for loose pieces associated with its formwork

system to eject out and cause injury.

[16] Our Court has previously stated:

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 When a defendant manufacturer in a negligence/products
liability case moves for summary judgment, it has the burden to
show the uncontroverted nonexistence of at least one of the
elements essential to plaintiff's case. The reviewing court will
affirm the grant of summary judgment on any legal basis
supported by the designated evidentiary material. . . .

Additionally, summary judgment is appropriately entered in
favor of a defendant manufacturer on the affirmative defense of
incurred risk where the evidence is without conflict and the sole
inference to be drawn is that the plaintiff knew and appreciated
the risk, but nevertheless accepted it voluntarily.

Cole v. Lantis Corp., 714 N.E.2d 194, 198 (Ind. Ct. App. 1999). The question of

whether a particular plaintiff’s claim is barred under the open and obvious rule

cannot always be resolved by the court as a matter of law. Id. at 199. When the

facts or the reasonable inferences to be drawn therefrom are in conflict, the

open and obvious nature of the danger is a question of fact for the jury. Id.

[17] In addition, our Court has adopted the following standard from the Seventh

Circuit Court of Appeals:

[w]hether a danger is open and obvious depends not just on what
people can see with their eyes but also on what they know and
believe about what they see. In particular, if people generally
believe that there is a danger associated with the use of a product,
but that there is a safe way to use it, any danger there may be in
using the product in the way generally believed to be safe is not
open and obvious.

Id. (citing Corbin v. Coleco Indus., Inc., 748 F.2d 411, 417 (7th Cir. 1984)).

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[18] Gleaves goes to great lengths to argue that the lumber infills were part of

PERI’s product design because the infills were a necessary component of the

formwork system and because PERI provided instructions for the use of lumber

infills in its assembly instructions and referenced them in its parts catalog.

Gleaves relies on Progressive Insurance Co. v. General Motors Corp., 749 N.E.2d 484

(Ind. 2001), in which a vehicle owner sued a manufacturer for damage to the

vehicle sustained when the vehicle caught fire. In discussing the production of

vehicles, our Supreme Court noted that “it stretches ordinary usage to describe

each component as a separate ‘product’ of the manufacturer who often

assembles parts from various sources to produce its ‘product.’” Id. at 490.

[19] We find the present case easily distinguishable from Progressive Insurance,

however, because unlike a car manufacturer that has contact with various parts

of the vehicle during the production of the vehicle, even when the parts came

from other sources, here, PERI had no connection to the lumber infills that

were used at the construction site. Whittenberg supplied the lumber and

materials for the infills, and Whittenberg employees made the infills. The mere

fact that the lumber infill was used in conjunction with PERI’s formwork does

not mean that the infill was part of PERI’s product or that PERI should be

liable for any use or misuse of it.

[20] Moreover, Gleaves, by his own admission, acknowledged that the danger and

risk of being hit by a form during wrecking was open and obvious. During his

deposition, Gleaves testified that he was aware that:

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  PERI forms are dangerous if they fall because they could potentially fall
on him;
 all wall forms must be lifted by a crane, which presents an overhead
danger to people on the ground;
 all concrete forms are heavy and could fall on a person, whether the
forms are on the ground or being lifted by a crane;
 if the lumber infill is going to be pushed off the wall, he should be out of
the way;
 a lumber infill is something that can fall and be an overhead hazard;
 an unsecured wood form can fall;
 depending on the size and height of the wood form, the safe area would
be far enough away that, no matter the size, if the form fell, it would not
hit a person;
 the forms being wrecked at the time of the accident were approximately
between 20-25 feet, and a safe zone would be more than 20-25 feet away;
and
 he did not need anyone to tell him to get out of harm’s way when
wrecking work occurred, as he would leave the area when he knew such
work was to occur.

PERI App. Vol. II p. 26-27, 29-30, 34-35, 38, 40. This testimony shows that

Gleaves knew and understood the danger associated with the work he was

doing, the potential for injury from any hazard formed during the wrecking

process, and the need to move to a safe area when wrecking work was being

performed. Accordingly, the trial court did not err in finding that the danger

was open and obvious or in granting summary judgment for PERI.

III. Messer
[21] Gleaves argues that the trial court erred in granting Messer’s motion for

summary judgment because Messer assumed a duty when it went beyond the

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 scope of its contract2 and took specific controlling safety actions over the

hazards that led to the accident.

[22] According to Gleaves, Messer assumed a duty when it required Whittenberg to

sound an audible warning when lifting loads over or near other workers on the

construction site; talked directly to Whittenberg’s crane operators about flying

loads over other workers; pulled Whittenberg’s safety representative from an

unsafe trench and sent him and other Whittenberg employees home for the day;

sent workers home for three days after they were discovered working near an

unsafe trench; and allowed Whittenberg to operate without the required full-

time safety representative on the construction site.

[23] We find Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012),

controlling in the present case. In Hunt, Hunt Construction Group, Inc., had

entered into a contract with the Stadium Authority to act as the construction

manager for the construction of a football stadium; Hunt did not have a

contractual relationship with any other contractor on the project. Id. at 224.

After an employee of another contractor was injured on the job and filed suit

against Hunt, our Supreme Court found that Hunt did not owe the employee a

legal duty of care either through its contractual obligations or through its

2
We note that our Supreme Court recently decided a case in which the Court found that the general
contractor of a construction project assumed a non-delegable duty of care related to worksite safety for the
subcontractor’s employees. See Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908 (Ind. 2017).
We find Ryan easily distinguishable. In Ryan, the general contractor assumed a duty of care through its
contractual obligations to the business entity that hired it; here, Gleaves does not argue that Messer’s contract
created a duty, but rather that Messer went beyond the scope of its contract to assume a duty.

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 actions or conduct. Id. at 229, 231. Our Supreme Court held “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 manager must undertake specific supervisory responsibilities

beyond those set forth in the original construction documents.” Id. at 230.

[24] Similar to Hunt, Messer’s actions regarding safety at the construction site fell

within the scope of its contract with IU. Gleaves contends that Messer assumed

a duty when it required Whittenberg to sound an audible warning when lifting

loads at the construction site and when Messer employees talked directly to

Whittenberg crane operators about not flying loads over other workers.

Whittenberg’s contract with IU stated that “[p]ersonnel shall be kept out from

under any load being lifted.” Messer’s App. Vol. III p. 31. Gleaves testified

that Whittenberg’s rules required the crane operator to blow a horn before

lifting heavy objects in order to warn others to move into a safe area out of the

way. Id. at 67. Under Messer’s contract with IU, Messer was responsible for

the oversight of the safety programs of each contractor, allowed to make safety

inspections and issue violations if work was being peformed in an unsafe

manner, and enabled to take immediate action to fix unsafe situations.

Therefore, any actions Messer took regarding the use or failure to use an

audible warning to workers or to stop the crane operators from flying loads over

other workers in order to maintain a safe construction site fell within its

contractual obligations to IU.

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[25] Next, Gleaves contends that Messer assumed a duty when on one occasion it

pulled Whittenberg’s safety representative from an unsafe trench and sent him

and other workers home for the day and on another occasion sent workers

home for three days when they were discovered working near an unsafe trench.

Safety4Site provided that Messer could remove workers who were working in

unsafe conditions from the construction site for the rest of the working day and

the next working day if the violation occurred in the second half of the worker’s

shift. Messer’s contract permitted it to modify its rules regarding personnel

safety. Accordingly, Messer’s actions were within the scope of its contractual

obligations to IU.

[26] Gleaves further contends that Messer assumed a duty when it allowed

Whittenberg to operate without the required full-time safety representative on

the construction site. Whittenberg employed a full-time safety manager; its

project manager served as the safety person in the safety manager’s absence.

Prior to Gleaves’s accident, Whittenberg had indicated to Messer in an email

that Whittenberg wanted to stop providing a full-time safety person at the

construction site. Messer had agreed that, based on Whittenberg’s

performance, October 9, 2012, could be the last day that Whittenberg would

need a full-time safety person at the construction site if Whittenberg resolved

issues that Messer had observed, complied with its contracts, and corrected its

safety concerns. Whittenberg’s safety manager was present on October 9, 2012,

the day of Gleaves’s accident.

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[27] Moreover, Safety4Site provided that when a contractor had been issued two

safety violations, the contractor was “required to provide a dedicated,

competent safety person to the project to supervise” the daily meetings and

work of the contractor and that the safety person must be at the construction

site whenever the contractor was working until the contractor “has

demonstrated to Messer’s satisfaction that a significant improvement with [its]

safety performance has occurred.” Messer’s App. Vol. II p. 156. Because

Whittenberg had already received two safety violations, under Safety4Site,

Messer’s contract allowed it to require Whittenberg to provide a safety person

at the construction site whenever Whittenberg was performing work until

Messer determined that Whittenberg’s safety performance had significantly

improved. Therefore, Messer was acting within the scope of its contract when

it considered allowing Whittenberg to stop providing a safety representative at

the construction site.

[28] Lastly, Gleaves contends that Messer assumed a duty through its general

actions, including when Messer’s project manager and safety manager walked

through the construction site and observed safety conditions, and when Messer

coordinated a safety orientation presentation for all workers. As for Messer’s

project and safety manager making observations through the construction site,

Messer’s contract required it to use its best efforts to obtain satisfactory

performance from each contractor, to determine that the work of each

contractor was being performed according to the requirements of the

construction contract, and to notify a contract of defects and deficiencies.

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 Messer was to use its best efforts to obtain satisfactory performance from each

contractor, to recommend courses of action to IU when requirements of the

construction contract were not being fulfilled, to determine that the work of

each contractor was being performed according to the requirements of the

construction contract, and to notify IU and the contractor of defects and

deficiencies in the work. Further, Safety4Site provided that Messer had the

ability to make periodic inspections of the project site and would issue

violations to contractors if warranted. Messer’s actions fell within the scope of

its contract and it did not assume a duty by undertaking them. As for the safety

orientation presentation, Messer’s contract stated that “each and every worker

must attend a mandatory 1hr safety orientation session prior to starting work on

site.” Id. at 17. Messer was contractually obligated to perform this service and

did not assume a duty by doing so.

[29] We acknowledge the tragic circumstances of this case, but to hold Messer liable

for Gleaves’s injury would create a perverse incentive for construction

managers to refrain from taking a role in ensuring safe working conditions at

construction sites. Messer’s actions and conduct constituted its fulfillment of its

contractual obligations to IU; Messer did not undertake supervisory

responsibilities beyond those obligations, and it did not assume a duty to

Gleaves through its actions or conduct. Therefore, the trial court did not err by

granting summary judgment in Messer’s favor.

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[30] The judgment of the trial court is affirmed.

Najam, J., and May, J., concur.

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