By: Shelley R. McCoy
The recent decision, Rider v. McCamment, 2010 WL 4940037 (Ind. Ct. App. 2010), issued by the Indiana Court of Appeals on December 6, 2010, discussed whether a landowner, general contractor, and independent contractor were liable for injuries suffered by an unannounced visitor at an empty residential construction site.
Larry and Cynthia McCamment d/b/a McCamment Homes, LLC (collectively “McCamment”) was a developer and general contractor of sorts. McCamment regularly purchased lots, hired contractors to construct a majority of the homes, and then sold the properties to prospective buyers. In May of 2006, Peggy and James Rider agreed to purchase one of McCamment’s homes, and the parties signed a purchase agreement memorializing the exchange. However, because the home was still under construction, closing was postponed until September 15, 2006. Concerned with safety on the construction site, McCamment included a provision in the purchase agreement which required Peggy and James to obtain permission from McCamment prior to visiting the home. However, despite this requirement, Peggy made between 30 and 35 unannounced visits to the construction site.
On August 9, 2006, Peggy made one of those visits. During that fateful day, Charles Lee d/b/a Lee Construction Company (“Lee”), who contracted with McCamment to perform the majority of construction for the home, was working on the deck on the back of the house. Not long after McCamment and his crew left for lunch, Peggy and her daughter arrived unannounced to the empty site. As Peggy proceeded onto the unfinished deck, she fell to the ground and unfortunately, suffered severe injuries. As a result, Peggy filed suit and alleged claims of negligence against McCamment and Lee.
Regarding McCamment, the court characterized him as both the landowner and the general contractor on the project, as closing had not yet occurred and he was responsible for coordinating the construction. Thus, the court determined that McCamment’s liability focused on whether he was in actual possession or control of the deck when Peggy’s accident occurred. Admittedly, McCamment did not perform any work at the home over the course of construction and had surrendered possession of the property to Lee on the day in question. As a result, McCamment had no opportunity to ensure Peggy’s safety, and thus, was not responsible for Peggy’s injuries.
Lee, however, was not so lucky. In Indiana, “[w]here an independent contractor is in control of the construction of premises and the independent contractor’s negligence results in injury to another person on the premises, the independent contractor may be held liable.” Where an independent contractor is in control of a construction site, the question becomes “whether it was foreseeable that [the injured party] would visit the construction site and be harmed by [a condition on the site].” In the present matter, there was no question that Lee had control of the subject deck. Thus, the only issue for the court was whether Lee had reason to believe that Peggy would visit the site. According to Peggy, she saw Lee during 3 to 4 of her previous unannounced visits. Consequently, the court concluded that Peggy’s statement created a question of fact appropriate for trial, concerning whether Lee owed a duty to Peggy to keep the deck in a safe condition. Accordingly, the Riders were permitted to continue on with their claims against Lee.
While the respective duties owed by landowners, general contractors, and subcontractors in Indiana are generally known to those active in the construction industry, this case raises questions about the level of care landowners and contractors have in maintaining a construction site and the duties owed to unannounced prohibited visitors.
There was one dissenting judge on the Court of Appeals, so it will be interesting to see how this case progresses and whether the Indiana Supreme Court will review this decision. Stay tuned!