In Clade, Hunt was the construction manager for the Lucas Oil Stadium construction project in Indianapolis (the “Project”). Clade was a construction laborer on the Project. Clade worked for one of the Project’s subcontractor’s, D.A.G. There was no contract between Hunt and D.A.G. In February of 2008, Clade was injured while walking down a ramp “in the end zone.”
Clade filed suit against Hunt alleging that the ramp had ice on it and that Clade's injuries were caused by Hunt's negligent performance of its duties. Hunt’s construction management agreement with the Indiana Stadium and Convention Building Authority contained the following language:
The Construction Manager shall consult and cooperate with the Architect and Owner as to boundary coordination issues
applicable to the construction of Project, which coordination of services shall specifically address: . . . Proper and efficient means of ingress to and egress from the Project site and the improvements under construction thereon during the construction phase.
Hunt and Clade filed cross motions for summary judgment. Hunt argued that it did not have a non-delegable duty to Clade regarding jobsite safety on the ingress and egress routes on the Project site. Hunt did not deny that it had the responsibility to designate the routes of ingress and egress. However, Hunt argued that its duty to designate routes and set boundaries did not establish a duty to maintain the paths.
The trial court initially agreed with Clade after striking two paragraphs from one of D.A.G’s affidavits providing that D.A.G. was responsible for general jobsite cleanup and had responsibility for the removal of snow and ice at the Project.
Hunt then filed a motion to reconsider. Thereafter, the trial court granted summary judgment in Hunt’s favor. The trial court concluded that, based upon Hunt Constr. Group., Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012) (hereinafter "Garrett"), Hunt did not have a non-delegable duty to Clade regarding jobsite safety on the ingress and egress routes on the Project site. Clade appealed.
On appeal, Clade argued that Hunt failed to establish as a matter of law that it owed no legal duty of care for jobsite
employee safety. The Indiana Court of Appeals agreed.
Under Indiana law, a construction manager owes a legal duty of care for jobsite employee safety if (1) the construction manager assumes this duty in his contract; or (2) the construction manager gratuitously or voluntarily assumes the duty through jobsite safety actions taken beyond those required by his contract.
Hunt claimed that as a general custom and practice, a general conditions contractor on a project, such as D.A.G., has the responsibility for snow and ice removal. Clade did not deny this industry custom. Instead, Clade argued that Hunt could point to no provision in D.A.G.’s contract with the Indiana Stadium and Convention Building Authority obligating D.A.G. to perform such services at the project site. Furthermore, although the evidence reflected that D.A.G. had cleared snow and sanded ice at the Project, the evidence on appeal failed to establish whether or not Hunt ever engaged in similar conduct at the Project site. Accordingly, the Indiana Court of Appeals reversed the trial court’s ruling and remanded the matter for further proceedings. At the trial level, Hunt will need to put forth evidence establishing that D.A.G.'s contract obligations included snow and ice removal and that Hunt never gratuitously or voluntarily undertook snow or ice removal duties.
LESSONS LEARNED: Even if it is industry custom and practice for the general conditions contractor to remove snow and ice for the purposes of maintaining jobsite safety, a construction manager is exposed to potential risk of liability for jobsite injuries if the contractor’s agreement with the project owner fails to identify that the general conditions contractor is the exclusive entity responsible for performing this task during construction or if the construction manager gratuitously or voluntarily removes snow and ice from the project site.