By: Sean T. Devenney
We have written several articles in our newsletters about Project safety and how to minimize exposure for injuries occurring on jobsites. Those articles are typically focused on Indiana law relating to Project contracting and provide insight into the case law and legal principles adopted by the Indiana Supreme Court in Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012). The basic premise of the Hunt case and its progeny is that responsibility and liability for the safety of construction Project participants (read employees on a construction project) can be managed to a large degree by carefully drafted contracts of the various Project participants.
The theory lurking behind the Hunt case appears centered on the fact that construction employees are protected for injuries pursuant to workers compensation laws. Basically, the Court is acknowledging that the injured construction worker is “covered” by workers compensation – and so the construction worker has a remedy to address the impact of work-related injuries. Further, and though it is not specifically stated, it is possible that the Courts recognize the fact that employees that are involved in construction understand that there are physical risks to working in the trades and that the employees themselves accept that risk. Indeed, by acknowledging the fact that the chain of contracts between the various Project participants is important to the outcome of a personal injury suit involving an injured construction worker on the site, the Court is implicitly acknowledging that the contract between the injured construction-worker employee and his employer is part of that chain of contracts in which risk is apportioned.
Under the theory of the Hunt case, it is clear that carefully drafted contracts can protect Project participants from claims arising from injuries to workers on the Project. However, there is another type of personal injury risk that Hunt does not address – namely injuries occurring to people who are not part of the construction work while the work is progressing. These individuals may be invited guests, passers-by, gawkers, and even trespassers. Such individuals are not in the “chain of contracts” described in Hunt, nor are such individuals protected under workers compensation. Rather, these “non-employee”/non-construction related individuals are covered under general tort law and while construction contracts might help to shift risk between and among Project participants through indemnity clauses and/or insurance – they may have a more limited ability to eliminate the exposure to such claims brought by non-project participants. So, unlike the Hunt scenario where the Court determined that a construction manager had no duty of safety to an employee of a subcontractor on the Project because the construction manager’s contract scrupulously avoided that duty, it is not clear that if the injury had happened to a passerby the result would have been the same.
The current law with respect to the duty owed by contractors to individuals accessing an active construction site is explained in Rider v. McCamment, 938 N.E2d 262 (Ind. Ct. App. 2010). In Rider, Peggy Rider was under contract to purchase a home from a builder – McCamment. McCamment (the legal owner of the property) subcontracted the work to build the home to a subcontractor named Charles Lee. Ms. Rider visited the site many times over the course of construction – mostly unannounced. Interestingly, by contract, Rider appears to have been required to coordinate her visits through McCamment – which she did not do. She, however, contended that she visited multiple times and that both McCamment and Lee knew she was doing so. In essence, she argued, because McCamment did not enforce the requirement that she coordinate her visits to the site, McCamment had waived that requirement.
One day, Rider visited the home unannounced and was walking through the house and on to the unfinished back deck during the lunch hour. Lee’s crew who had been working on the deck that day had left the premises for lunch. Rider leaned up against the railing on the deck, the rail gave way, and she fell seriously injuring herself.
Rider sued McCamment and Lee. Both McCamment and Lee filed summary judgment arguing they owed no duty of care because Rider entered the property without permission. The Court analyzed the situation and determined that McCamment did NOT owe a duty of care because McCamment had no involvement with the deck, had not done any work on the deck, and was not in “control” of the premises at or around the time of the incident. By contrast, the Court noted that Lee had been working on the deck and exercised some control over the area. The Court found that Lee owed a duty to Rider and that a jury would have to decide whether Lee and his crew breached the duty owed to Rider.
The decision of the Court was subject to a well-reasoned dissenting opinion by Judge Kirsch. Judge Kirsch noted:
Construction sites are fraught with peril and involve dangers that are inherent to the construction industry. Until the construction process is completed, those who enter upon a construction site encounter foundation walls that are not back-filled, roof trusses that are not fully braced, electrical connections that are exposed, power tools of all descriptions, and, as here, railings that are not secure.
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To me, it is reasonable to impose a duty on a contractor when he knows that a party is upon the premises. When Lee was present, he had the ability to warn Rider of potentially dangerous areas and conditions . . . [Lee] did not have such an ability when he was not present . . .
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To me, the issue presented here is more properly stated not as the duty owed by Lee, but the risk incurred by Rider. I believe that one who enter upon an inherently dangerous construction site in the absence of either permission or notice incurs the risk of such inherent dangers as a matter of law.
In short, Judge Kirsch recognized the reality of the construction process – danger is ever present, and incomplete work is not “safe”. While Judge Kirsch’s reasoning is compelling, it did not carry the day.
As a consequence, in Indiana, during construction contractors must remain diligent to prevent not only injuries to employees on the Project but be mindful of exposure to members of the public that might access or be impacted by the construction site. To minimize exposure contractors should look at the site from the perspective of not only a construction worker but a person with no experience on such sites. In many cases the same analysis that is done to mitigate risks to construction workers is equally applicable to safety for the general public. Thus, contractors should focus on mitigating the most dangerous highest probability types of injuries such as minimizing the risks of falling objects, making sure scaffolding is built and maintained safely, that vehicles entering and exiting the site can do so safely and with minimal interactions with pedestrians, materials are stored safely, openings are covered, protective railings are installed, that noise is reasonably controlled, and hazardous substances and dust are minimized. It is especially true that if an unfinished area is left in a precarious condition with no supervision, it becomes incredibly important that the contractor take precautions to warn of the unsafe condition and/or eliminate the potential for members of the general public to access the area..
Presumably, if Lee had placed caution tape on the deck to warn people against entering the deck area when he went to lunch, Lee would not have had to face trial in which a badly injured woman would certainly garner jury sympathy.
If you are a construction industry professional, in order to limit your exposure, do not limit your concern for safety to those that are working on your site – consider the safety of the general public as well.
For questions about project contracts or worksite safety, contact Sean T. Devenney or your DSV attorney.
[1] See https://www.highspeedtraining.co.uk/hub/public-safety-during-construction/
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