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

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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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