Archive for the 'Safety & Risk Management' Category

Hunt Construction: Same Case, Slightly Different Result

By: Sean T. Devenney

Last Month the Indiana Court of Appeals issued a not-for-publication decision in the case of Clade v. Hunt Construction Group, Inc.   This case arose on the same Project (under the same contract) that we have discussed in prior blog posts relating to the Indiana Supreme Court case in Garrett v. Hunt Construction.  In this case, like Garrett, the injured employee Clade was injured while working for a subcontractor on the Project.   Clade could not sue his employer due to the exclusivity of the worker’s compensation remedy.  However, Clade did bring suit against Hunt, who was the Construction Manager Agent on the Project, claiming that Hunt owed him a non-delegable duty regarding jobsite safety on the ingress and egress routes to the Project site where Clade allegedly slipped and fell on ice.  Not surprisingly, Hunt argued that the Supreme Court case in Garrett controlled the outcome of the case and Hunt argued that since the case arose on the same Project with the exact same contracts at issue, Hunt was entitled to summary judgment.  The trial court agreed and found that Hunt did not owe Clade a duty to protect him from his slip and fall and granted Hunt’s motion for summary judgment.

The Court of Appeals, however, reversed.  The Court noted that there were two ways Hunt could be found to have assumed a duty to Clade:  (1) by contract; or (2) by conduct.  Presumably, the Court agreed with Hunt that the contracts (because they were the exact same as those analyzed in Garrett) did not create a duty to individual employees of subcontractors on the Project.  However, the Court found that there was no evidence presented by any party as to what, if anything, Hunt had actually done with respect to snow and ice removal in the particular spot where Clade allegedly fell.  Since there was no evidence presented on the subject, under Indiana’s liberal summary judgment standard Hunt was not entitled to summary judgment.  The Court did appear to leave open the possibility that Hunt could present evidence that it did not perform snow and ice removal on the Project in the area where the Plaintiff fell (prior to when he fell), in which case, presumably Hunt would be entitled to summary judgment.  Under Garret, it seemed that a construction manager might be able to insulate itself from assuming a duty for jobsite safety by drafting the appropriate contractual language and limitations.  However, the Clade case appears to require an examination by the court that looks beyond the contractual language to the parties’ conduct as well in order to determine whether or not the construction manager assumed a duty for jobsite safety.  What appeared to be clear direction from the Indiana Supreme Court may have just gotten murkier.

IOSHA and OSHA Delay Full Enforcement for Residential Fall Protection, Again

By: Sean T. Devenney

As previously discussed here and here, residential contractors have new fall protection regulations to be aware of or else be subject to penalties from OSHA or IOSHA.  On February 22, 2012, IOSHA updated, again, the expected date for full enforcement relating to “new” residential fall protection rules.  The new “full” enforcement date is now set for September 15, 2012.  From now until September 15, 2012, IOSHA will continue to monitor fall protection on residential projects.    According to IOSHA:

  • Residential construction contractors and sub contractors who are using fall protection that meet the interim guidance will not be cited.  Where the employers program meets the interim guidelines or the employer is making a good faith effort to meet the new guidelines but has fallen short in some area, IOSHA will make a referral to INSafe for consultative services.
  • If there is no Fall Protection Program and no effort is underway to comply with the existing guidelines, a citation will be issued to the employer.

Employers are encouraged to move quickly on the acquisition of any required personal protective equipment and development.  Once again, we shall whether the September 15, 2012 date for full enforcement will survive.

A copy of IOSHA’s directive can be found here.

Indiana Supreme Court Finds Project Safety Risks Can Be Minimized by Contract

By: Sean T. Devenney

On March 22, 2012, the Indiana Supreme Court issued its long awaited decision relating to Project safety in the Hunt Construction Group v. Garrett matter. DSV has been closely following this case through the courts because it had the potential to impact so many construction industry participants.  Additionally, it had the potential to help provide significant direction for drafting contracts that allow project participants to respect the importance of safety, but limit liability for tangential parties working on the site.  In this regard, the Indiana Supreme Court decision provides relatively clear guidance on how to accomplish—through contract provisions—a safe working environment while minimizing the liability risk associated with job site safety accidents.

The relevant facts of the Hunt case are these:  (1) Hunt was the CM agency on the Lucas Oil Stadium Project ; (2) Garrett was allegedly injured while working for a subcontractor when a piece of wood struck Garrett in the head and left hand; (3) Hunt’s CM contract specifically stated that Hunt’s duties in relation to the Project ran solely to the Owner and not to any contractors or employees working on the Project;  but (4) Hunt’s contract did contain several very significant and detailed safety related obligations that Hunt agreed to perform relating to the work on the Project.

In essence, the issue before the Supreme Court was as follows: By agreeing to perform safety obligations for the Owner did Hunt assume a duty of safety to all Project participants?  The answer to that question, according to the Indiana Supreme Court, turns on two questions:  (1) Was the contract clear that Hunt did not assume a duty to all Project participants relating to safety?; and (2) In performing the safety related work, did Hunt perform work beyond what it agreed to perform for the Owner such that it assumed a duty to Project participants by its on-site actions?

In analyzing the question before it, the Court started with the contract.  The contract between Hunt and the Owner had some very clear provisions that specifically stated that the work Hunt agreed to perform was for the benefit of the Owner only—including the safety related obligations.  The Court found as a matter of law that Hunt had not contractually assumed a duty to employees of subcontractor’s on the Project for safety.

The Court’s analysis then focused on what safety related activities Hunt actually performed on the construction site to determine whether Hunt, through its actions on site, had assumed a duty of safety to individual employees of subcontractors.  Garrett cited several examples of specific safety activities that Hunt performed on the Project including (1) daily safety inspections; (2) daily safety reports; (3) conducting weekly safety meetings with representatives of contractors and subcontractors;  (4) obligations to notify contractors if Hunt felt the contractor was operating in violation of the agreed upon safety program or the law and order the contractor to remedy the situation; and (5) disciplining contractors that failed to comply with the safety program.  In analyzing how Hunt’s activities impacted its decision, the Court reverted back to the contract between the Owner and Hunt and stated as follows:

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 contract, it did not assume by its actions any legal duty of care for jobsite-employee safety.

What this means for construction industry participants should not be a surprise – contracts matter.  In this case, Hunt’s contract was crafted in such a way to eliminate liability arising from an injury to an employee of a subcontractor, so long as Hunt followed the contract and did not independently assume a duty of safety beyond what it agreed to perform for the Owner.  Now that we have clear direction from the Indiana Supreme Court on this important issue, it is time for you to review your own contract forms to determine how your contracts address jobsite safety issues.

Indiana Supreme Court Rules on Construction Jobsite Safety Case

By: Sean T. Devenney

The Indiana Supreme Court ruled today in the Hunt Construction Group v. Garrett case that DSV has been tracking for a long while, as noted here.  This is an important safety case because the trial court and Court of Appeals held that Hunt (who was the Construction Manager on the Lucas Oil Stadium Project) could be held liable for injuries to a subcontractor’s employee (Garrett) because of: (1) various provisions in the CM contract with the Owner and (2) the safety related activities Hunt undertook on the Project.  Hunt argued that it could not be held liable because other provisions in its CM contract explicitly provided that Hunt was not responsible for the safety programs to be implemented by the trade contractors.

Today the Indiana Supreme Court reversed the decision of the trial court and Court of Appeals and held that based on Hunt’s contract with the Owner and the underlying facts of the case, that Hunt did not owe a duty of care to the injured employee’s subcontractor.  Thus, the Supreme Court ruled that Hunt was entitled to summary judgment and the case (as to Hunt) could not go to the jury for consideration.  Given the importance of the decision to the construction industry, we will be doing a follow up blog post detailing the implications of the decision, including what this may mean for safety-related contractual provisions in your standard contract forms.  For a copy of the decision click here.

Indiana Court Issues Another Opinion Holding General Contractor Assumed a Duty of Safety to Subcontractor’s Employee

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?

The OSHA Residential Fall Protection Saga Continues

By: Sean T. Devenney

On September 22, 2011, Federal OSHA issued a memoranda stating that OSHA was not going to enforce full penalties for failure to comply with the implementation of the fall protection plan.  Indiana OSHA followed suit stating that the effect of the Federal OSHA September 22, 2011 memoranda was to “scale back enforcement until March 15, 2012.”  Indiana OSHA (IOSHA) issued its own guidance on September 29, 2011 stating that  IOSHA will not fine or cite employers that either meet “the interim guidelines” or are making a good faith effort to comply with the new guidelines but may have fallen short in some respect.    Rather than cite or fine the employers who fail to meet the new guidelines, IOSHA will make a referral to INSafe for consultative services.   However, employers who do nothing – meaning make no attempt at moving forward with a fall protection program will still be subject to citation and fines.

The new date for “full enforcement” in Indiana (meaning fines and citations) is set for March 15, 2012.  It appears that this is the last reprieve for those in the industry that fail to take steps to comply with the full application of the OSHA fall protection provisions in residential contracting.  To review IOSHA’s most recent memoranda on this topic click here.

Court Limits GC’s Liability for Injury to Sub’s Employee

By: Sean T. Devenney

On September 9, 2011, the Indiana Court of Appeals issued its opinion in Shawnee Construction and Engineering, Inc. v. Don C. Stanely, Jr., which serves as the most recent example of the limitations placed on the duties owed to individual construction workers for project safety from project participants.  As some of our prior blog posts here and here have indicated, recent Indiana cases have shown a propensity to broaden the duty of safety to construction workers, such that general contractors and construction managers could be found to have assumed safety responsibilities on the project even in the face of apparent attempts by project participants to contractually limit their exposure.  See, for example, Stumpf v. Hagerman Construction Corp. 863 N.E.2d  871 (Ind. Ct. App. 2007) and  Hunt Construction Group, Inc. v. Garrett, 938 N.E.2d 749 (Ind. Ct. App. 2010) (currently being reviewed by the Indiana Supreme Court).  The new Shawnee Construction opinion reinvigorates long standing case law that, absent the application of an exception, a general contractor does not have a duty to supervise the work of an independent contractor to assure a safe workplace.   After reviewing the facts and determining that there was no applicable exception to the general rule—and specifically, finding that the GC did not contractually assume a duty for project-wide safety—the Court granted summary judgment in favor of Shawnee Construction and against the injured employee.

In contrast, the Stumpf v. Hagerman Construction and the Hunt Construction Group cases found that the contractor and construction manager had assumed a duty of safety to the injured employee of a subcontractor—and had left some to wonder whether the Court would ultimately change the law and find that all participants on a construction project owed a duty of safety to all individuals working on a project regardless of contractual language attempting to limit the duties owed.

Ultimately, as our prior posts on the subject have implied, it appears that the Hunt Construction case that is currently being appealed to the Indiana Supreme Court will inform the debate, and provide lawyers and construction industry participants with some guidance on how to contractually deal with the very real risk of injury on a construction project.    Once the Hunt Construction case is ruled upon, construction industry participants may consider taking a look at their safety practices and their contracts to determine what if anything they can do to limit their exposure from personal injury suits brought by employees of other construction companies working on their projects.

New OSHA Fall Protection Requirements Apply to IN Residential Contractors

By: Sean T. Devenney

On October 1, 2011, Indiana OSHA will begin enforcing new federally mandated safety regulations requiring residential contractors to comply with OSHA requirements relating to fall protection.  According to the regulation, individuals working 6 feet or more above the next level subject to some limited exceptions must be protected by conventional fall protection (i.e., guardrail systems, safety net systems, or personal fall arrest systems).  However, if a contractor can demonstrate that such conventional fall protection is infeasible or presents a greater hazard, it may implement a formal fall protection plan. The fall protection plan’s alternative measures must, however utilize safe work practices that eliminate or reduce the possibility of a fall. The plan must be written and be site-specific.

Obviously, this change requiring a residential contractor to comply with the construction industry standards that have already been in place for commercial projects will have a significant impact on those that work on residential projects.  Many in the industry believe that these measures will decrease productivity and may not lead to a significant decrease in accidents.  Residential contractors should expect that Indiana OSHA will focus some significant attention on the residential construction market as Indiana OSHA seeks to raise the awareness of the new application of the fall protection rules to the residential marketplace.  For more information on these new regulations, check out the IOSHA Residential Fall Protection Enforcement Directive found on the IOSHA website.

Indiana Supreme Court to Review Important Job Site Safety Opinion

By: Sean T. Devenney

In a December 2010 blog post, we reported that the Indiana Court of Appeals in the case of Hunt Construction Group, Inc. et. al. v. Garrett had effectively taken the position that despite AIA contract language to the contrary, a Construction Manager had a duty to look out for all workers’ safety on a construction project by virtue of having contractually agreed to participate in project safety decisions. The Indiana Supreme Court has recently agreed to review the Indiana Court of Appeals decision, which has the effect of vacating the prior opinion from the Court of Appeals.  The Indiana Supreme Court is likely to take several months to decide whether to overturn or adopt the Court of Appeals’ decision.  We will continue to follow this very important construction project safety opinion.

Agency CM Held to Have Contractually Assumed a Duty to Injured Worker

By: Sean T. Devenney

The Indiana Courts are “on a roll” when it comes to new construction cases—there have been several big cases this year touching all levels of the construction industry.  The latest case, Hunt Construction Group, Inc. et. al. v. Garrett deals with the all important site safety roles of various construction industry participants.  This case holds that an agency Construction Manager (CM) may owe a duty to maintain safe conditions on a project site to all construction workers on the site if the Owner –CM contract contains language giving the CM site safety responsibilities vis-à-vis the Owner.

In this case, an employee of a subcontractor was hurt on the job.  The injured employee sued the CM claiming the CM had a duty to protect the worker on the site from injury.  The injured employee asked the Court to hold as a matter of law that the CM owed a legal duty to the employees on the site based upon the CM’s agreement with the Owner.  The court found that the agreement between the CM and Owner contained language (1) requiring the CM to develop a comprehensive site safety program, (2) coordinate the safety program, and (3) giving the CM the authority to remove any employee or piece of equipment deemed unsafe among other safety related responsibilities.  The Court, having gone through all the safety related provisions in the contract, determined that the CM had assumed a duty to maintain safe site conditions.

The Court reached this conclusion despite clear language in the Owner-CM Agreement that attempted to limit the CM’s obligations for safety to the Owner.  The CM argued that any safety obligations or duties ran from the CM to the Owner and not to the employees of various contractors working on the Project.  The Owner-CM contract also contained language that expressly attempted to limit the CM’s liability for site injuries.  In a dissenting opinion, Judge Friedlander found that while there was a great deal of language relating to safety responsibilities of the CM, the language limiting the liability of the CM should be enforced.  In particular the Owner-CM agreement provided that the CM’s duties were undertaken “[w]ithout assuming the safety obligations and responsibilities of the individual Contractors” and that the CM “shall not 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.”

Moving forward, the Garrett case could potentially have an enormous impact on the contractual allocation of site safety responsibility and the duties that flow with that responsibility.  Under the Garrett holding, if a construction contract contains even general site safety obligations, there is a substantial likelihood that a contractor or CM will be held to owe a duty to all individual worker’s on the Project to maintain safe conditions, and attempts to contractually limit those responsibilities may simply be disregarded by the Court.  A link to this new case can be found at: http://www.ai.org/judiciary/opinions/pdf/12141003mpb.pdf


Daniel M. Drewry

Daniel M. Drewry

Daniel M. Drewry

About This Blog

The DSV Construction Law Blog is hosted by Daniel M. Drewry. Dan is a Partner with the law firm Drewry Simmons Vornehm, LLP and concentrates his practice in the areas of Construction Law and Litigation, and Labor & Employment Law.

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