By: Sean T. Devenney
On December 19, 2011, the Indiana Court of Appeals issued another construction job site safety opinion in Capital Construction Services, Inc. v. Gray. Like in the other recent cases discussed in this blog, the Court of Appeals went through an exhaustive analysis of the contract between the general contractor and the owner to locate and focus the analysis on all provisions in which the general contractor agreed to perform safety related tasks. Based on those provisions of the contract, the Court decided that the general contractor had a duty to provide a safe work environment to a subcontractor’s employee killed on site. The opinion can be read in its entirety here.
The facts of this case are tragic and all too familiar. Capital Construction served as a general contractor on a project for Kroger. Capital in turn subcontracted with All One to perform a portion of the work. Clinton Gray was an employee of All One who was working on a ladder when he came into contact with live electrical wires. As a result of the shock, Mr. Gray fell from the ladder and died. His estate subsequently brought suit against Capital Construction for negligent failure to maintain a safe workplace.
The estate moved for summary judgment arguing that Capital Construction had a non-delegable, contractual duty of safety on the jobsite. Capital Construction defended the claim and took the position that it did not owe a duty to Mr. Gray, relying on the general rule that an employer does not owe a duty to supervise the work of an independent contractor to assure a safe workplace. The Court noted, however, that where one party has contractually agreed to perform safety related work for the Project owner, the failure to perform that work in a reasonable manner can give rise to an actionable claim by an employee of a subcontractor.
Consistent with its opinion in the Hunt Construction Group, Inc. et. al. v. Garrett case described in a prior blogs posts, the Court of Appeals analyzed all of the many safety related obligations contained in the Capital Construction contract with Kroger, and determined that as a result of those safety obligations, Capital Construction had a duty to all people working on the Project for their safety. Thus, the estate’s suit against Capital Construction could proceed to a jury to determine whether Capital Construction had breached the duty.
One interesting issue in the case is the fact that Judge Friedlander wrote a concurring opinion in which he explained how his decision in the Capital Construction case (finding there is a duty of safety) can be reconciled with his dissent in the Hunt case (in which he found the contract did not impose a duty of safety). In particular, Judge Friedlander felt that in the Hunt case there were several clauses that other members of the Court of Appeals failed to heed in their analysis that in his view eliminated the general contractor’s duty of safety to third parties working on the construction project. Judge Friedlander noted that none of the limiting clauses that saved the general contractor from liability in the Hunt case were in the Capital Construction contract with Kroger. Accordingly, Judge Friedlander found that Capital Construction had, in fact, agreed to be responsible for the safety of all employees on the Project by contract. Judge Friedlander also noted that the Hunt decision is currently pending before the Indiana Supreme Court and therefore we should all know soon enough what the status of Indiana law is on the general duty of job site safety on a construction project.
From a construction industry participant standpoint, the long anticipated Indiana Supreme Court decision in Hunt should provide all parties with sufficient information and analysis to clearly understand the risks to a general contractor of including safety related provisions in the contract with the owner. Once the law in the area is settled, the parties will be able to utilize risk shifting mechanisms in their contracts such as indemnity and insurance provisions to allocate the risks associated with job site safety appropriately. In the meantime, the Capital Construction case serves as yet another example of the court imposing on a general contractor a duty of safety towards subcontractors’ employees based upon the terms of the Owner-General Contractor agreement. The question remains, did the parties to that agreement understand (at the time it was negotiated) the risk the general contractor incurred when including those safety provisions in the contract?