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.