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.