Shiel Sexton Company Inc. Circle B Construction Systems, LLC v. Joshua Towe ( 2020 )

FILED
Aug 24 2020, 8:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT SHIEL ATTORNEY FOR APPELLEE
SEXTON COMPANY INC. Jeffrey A. Hammond
Kevin C. Schiferl Cohen & Malad, LLP
Maggie L. Smith Indianapolis, Indiana
Timothy L. Karns
Frost Brown Todd LLC
Indianapolis, Indiana ATTORNEY FOR AMICUS CURIAE
Lance R. Ladendorf
Pavlack Law, LLC
ATTORNEYS FOR APPELLANT CIRCLE B. Indianapolis, Indiana
CONSTRUCTION SYSTEMS, LLC
James W. Hehner
Brittany K. Norman
Clendening Johnson & Bohrer, P.C.
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE
Bryce H. Bennett, Jr.
Laura S. Reed
Riley Bennett Egloff LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 1 of 21
Shiel Sexton Company Inc.; August 24, 2020
Circle B Construction Systems, Court of Appeals Case No.
LLC, 18A-CT-1446
Appellants-Defendants, Appeal from the Marion Superior
Court
v. The Honorable Thomas J. Carroll,
Judge
Joshua Towe, Trial Court Cause No.
Appellee-Plaintiff 49D06-1505-CT-15897
May, Judge.
[1] Shiel Sexton Company Inc. (“Shiel Sexton”) and Circle B Construction
Systems, LLC (“Circle B”) bring this interlocutory appeal of the trial court’s
grant of partial summary judgment to Plaintiff/Appellee Joshua Towe
(“Towe”) on the issue of whether Shiel Sexton and Circle B, individually,
assumed by contract a non-delegable duty to protect Towe, who was a
temporary worker assigned to work for Rose and Walker Supply Lafayette,
Inc., d/b/a Rose and Walker Supply Indianapolis, Inc. (“Supplier”), and was
injured while on a construction site to deliver construction supplies to Circle B.
The Indiana Trial Lawyers Association appears as Amicus Curiae (“ITLA
Amicus”) in support of Towe, and appearing in support of Shiel Sexton as a
single Amici are: Associated General Contractors of Indiana; Asphalt
Pavement Association of Indiana; Construction Advancement Foundation of
Northwest Indiana, Inc.; Indiana Constructors, Inc; and Michiana Area
Construction Industry Advancement Fund (collectively “Construction Amici”).
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 2 of 21
[2] We consolidate, reorder, and restate the issues on appeal as follows:
1. Did the contract that Shiel Sexton entered to become
General Contractor contain language by which Shiel Sexton
assumed a non-delegable duty to protect all individuals who
worked on the construction site?
2. Did the contract between Shiel Sexton and Circle B
contain language by which Circle B assumed a non-delegable to
protect the employee of Circle B’s third-party supplier of
materials?
We reverse in part, affirm in part, and remand.
Facts and Procedural History
[3] Hendricks Commercial Properties (“Hendricks”) owned land at the corner of
86th Street and Keystone Avenue in Marion County (“the Property”). Hendricks
hired Shiel Sexton as General Contractor to construct the Ironworks on the
Property (“the Project”). Shiel Sexton subcontracted with Circle B to build part
of the Project, and Circle B contracted with Supplier to deliver materials to the
Property that Circle B needed to construct its portion of the Project.
[4] On October 16, 2013, Supplier sent three workers to deliver two truckloads of
metal studs to Circle B at the Property. Because each bundle of metal studs
weighed approximately 1,000 pounds, a boom crane was needed to lift the
bundles from the trucks, and Supplier’s employees brought a truck with a power
boom crane mounted on it. Two of the workers were permanent employees of
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 3 of 21
Supplier: Wesley Criddle, who was a truck driver and boom operator, and
Chris McNeese, who was a truck driver and laborer. The third employee,
Towe, was an employee of Express Employment Professional and was on
temporary assignment to Supplier.
[5] When Supplier’s employees arrived at the Property, a Circle B employee told
Supplier’s employees where to unload the metal studs. Criddle was operating
the boom and hoisting the loads up to the designated area. When Criddle
realized it was time for the three employees of Supplier to take a break, he was
in the middle of hoisting a load, and he stopped the boom crane with the load
in the air. Towe and McNeese walked into the area directly below the hoisted
load and began their break. Criddle exited the boom crane and descended the
ladder. Soon thereafter, the bundle of metal studs began to tip and studs poured
from the bundle onto Towe and McNeese, causing injuries to both.
Investigation revealed a leak in a hydraulic line on the boom had caused the
boom to tip and drop the load.
[6] Towe sued Shiel Sexton, Circle B, Supplier, and a number of businesses
believed to have serviced and/or repaired the boom truck. 1 (Shiel Sexton App.
Vol. II at 42-46.) Supplier was dismissed from this action because it was paying
worker’s compensation benefits to Towe. (Id. at 17.) Summary judgment was
1
The businesses believed to have serviced the truck included: RPM Machinery, LLC d/b/a Macdonald
Machinery Company; Neely Corp. d/b/a PFM Car and Truck Care (“PFM Indy”); Proactive, LLC d/b/a
PFM Car and Truck Care (“PFM Carmel”); PFM Automotive Management, Inc., d/b/a PFM (“PFM
Management”); and PFM Express Lube, Inc. d/b/a PFA Car and Truck Care Center (“PFM Zionsville”).
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 4 of 21
granted to all the truck service and/or repair businesses except PFM Indy,
about whom there exist “material issues of fact regarding [its] involvement in
the facts and circumstances surrounding this case.” (Appealed Order at 5.)
Shiel Sexton, Circle B, and Towe then filed competing motions for summary
judgment.
[7] Shiel Sexton asserted: (1) it did not owe a duty of care to Towe because it “did
not contractually assume a duty to provide a safe workplace for the employees
or agents of its subcontractor’s suppliers[,]” (Shiel Sexton App. Vol. II at 72),
and (2) it was not the proximate cause of Towe’s injuries. (Id. at 82-84.) Towe
responded to Shiel Sexton’s motion for summary judgment by asserting Shiel
Sexton, through its contract with Hendricks, assumed a nondelegable duty of
safety that could not have been assigned to a subcontractor such as Circle B.
(See Shiel Sexton App. Vol. III at 139-164.)
[8] Circle B asserted it was entitled to summary judgment because it could not have
a duty of care to Towe when the contract between Hendricks and Shiel Sexton
“imposes a non-delegable duty upon Shiel Sexton which cannot be modified by
any subsequent agreement with Circle B.” (Circle B App. Vol. II at 46.) Towe
responded to Circle B’s motion for summary judgment by asserting Circle B
also assumed a duty, by its contract with Shiel Sexton, that was non-delegable
and protected the safety of all persons working on the project, including Towe.
(Circle B App. Vol. III at 70-112.)
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 5 of 21
[9] The trial court held a hearing on the competing motions for summary judgment
and then entered the orders that are at issue in this appeal. As to Shiel Sexton,
the trial court ordered:
The Court now finds that there is no genuine issue of
material fact regarding the nondelegable duty of the Defendant
Shiel Sexton Company, Inc., and that, as a matter of law, the
Defendant Shiel Sexton assumed, by contract, a non-delegable
duty of safety to all persons working on the project, including the
Plaintiff Joshua Towe, and that the Plaintiff is entitled to Partial
Summary Judgment on the issue of Defendant Shiel Sexton’s
contractual assumption of a non-delegable duty of safety.
The Court further finds that there are questions of material
fact as to proximate cause of the injury sustained by Plaintiff,
thereby precluding the entry of summary judgment in favor of
Defendant Shiel Sexton on the issue of proximate cause. It is,
therefore:
ORDERED that Defendant Shiel Sexton Company, Inc.’s
Motion for Summary Judgment is DENIED.
It is further ORDERED that Plaintiff’s Motion for Partial
Summary Judgment as to Defendant Shiel Sexton on the issue of
Duty is hereby GRANTED and that Partial Summary Judgment
be, and hereby is, entered in favor of the Plaintiff and against
Defendant Shiel Sexton Company, Inc. that as a matter of law
the Defendant Shiel Sexton Company, Inc. assumed, by contract,
a nondelegable duty for the safety of all persons working on the
project, including Joshua Towe;
It is further ORDERED that, in addition to liability for
their own negligence, the Defendant Shiel Sexton Company, Inc.
is vicariously liable for the negligence of Circle B Construction
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 6 of 21
Systems, LLC and Joshua Towe’s employer, Rose and Walker
Supply.
(Appealed Order at 2-3) (emphases in original).
[10] As to Circle B, the trial court ordered:
The Court now finds that there is no genuine issue of
material fact regarding the nondelegable duty of the Defendant
Circle B Construction Systems, LLC, and that as a matter of law,
the Defendant Circle B assumed, by contract, a non-delegable
duty of safety to all persons working under it on the project,
including the Plaintiff Joshua Towe, and that the Plaintiff is
entitled to Partial Summary Judgment on the issue of Defendant
Circle B’s contractual assumption of a non-delegable duty of
safety.
The Court further finds that there are questions of material
fact as to the proximate cause of the injury sustained by the
Plaintiff, thereby precluding the entry of summary judgment in
favor of Defendant Circle B on the issues of proximate cause. It
is, therefore:
ORDERED that Defendant Circle B Construction
Systems, LLC’s Motion for Summary Judgment is DENIED.
It is further ORDERED that Plaintiff’s Motion for Partial
Summary Judgment as to Defendant Circle B on the issue of
Duty is hereby GRANTED and that Partial Summary Judgment
be, and hereby is, entered in favor of the Plaintiff and against
Defendant Circle B Construction Systems, LLC that as a matter
of law the Defendant Circle B Construction Systems, LLC
assumed, by contract, a nondelegable duty for the safety of all
persons working under it on the project, including Joshua Towe;
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 7 of 21
It is further ORDERED that, in addition to liability for
their own negligence, the Defendant Circle B Construction
Systems, LLC is vicariously liable for the negligence of Joshua
Towe’s employer, Rose and Walker Supply.
(Id. at 3-4) (emphases in original).
[11] The trial court certified those orders for interlocutory appeal, and our court
accepted jurisdiction. Shiel Sexton and Circle B filed separate briefs of
Appellant. Towe then filed his Appellee Brief, and ITLA Amicus filed its
Amicus Brief in support of Towe’s Brief. Shiel Sexton and Circle B filed
separate reply briefs and, on that same day, Construction Amici moved to file
an Amici Brief in support of Shiel Sexton. We granted Construction Amici’s
motion, accepted their Amici Brief, and then received reply briefs from other
parties. 2
Discussion and Decision 3
2
We held oral argument on July 18, 2019, at the Indiana Statehouse. We thank counsel for their well-
prepared and well-presented arguments.
3
As a preliminary matter, we address arguments by Shiel Sexton and Circle B about the language in the trial
court order that states each of those parties is “vicariously liable for the negligence of” other parties. (See
Appealed Order at 3 & 4.) Shiel Sexton argues it is “premature” to declare it vicariously liable when the only
issue decided was duty. (Shiel Sexton Br. at 41.) Similarly, Circle B argues it cannot be “vicariously liable”
when no one has yet been found negligent. (Circle B Br. at 27.) In response, Towe asserts their arguments
are “a quibble over semantics, not substance.” (Towe Br. at 41.) Towe agrees “elements of breach (as to
Shiel Sexton for its own negligence, Circle B for its own negligence, and Rose and Walker for its negligence),
proximate cause, and damages, all still must be proven at trial.” (Id.) As the parties all agree the trial court
decided only whether Shiel Sexton and Circle B assumed a duty, and that all other elements of the claims
would need to be proven at trial, we proceed to reviewing whether the trial court properly granted summary
judgment to Towe as to the assumption of duty by Shiel Sexton and Circle B.
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 8 of 21
[12] We review appeals from the grant or denial of summary judgment using the
same standard as the trial court: summary judgment is appropriate only where
the designated evidence shows there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Rogers v. Martin, 63
N.E.3d 316, 320 (Ind. 2016). All facts and reasonable inferences are construed
in favor of the non-moving party. City of Beech Grove v. Beloat, 50 N.E.3d 135,
137 (Ind. 2016). Where the challenge to summary judgment raises questions of
law, we review them de novo, Rogers, 63 N.E.3d at 320, and questions of
contract interpretation “are well-suited for summary judgment.” Ryan v. TCI
Architects, 72 N.E.3d 908, 913 (Ind. 2017). The party appealing the trial court’s
decision has the burden to convince us the trial court erred, but we scrutinize
the trial court’s decision carefully to make sure a party was not improperly
denied its day in court. Id.[13] To prevail on a claim of negligence, a plaintiff must demonstrate three
elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that
duty; and (3) compensable injuries proximately caused by the breach. Goodwin
v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Whether a
duty exists is a question of law for the court to decide. Rogers, 63 N.E.3d at
321. “Absent duty, there can be no negligence.” Ryan, 72 N.E.3d at 913.
[14] Herein, the trial court determined both Shiel Sexton and Circle B had a duty to
protect Towe, who was the employee of a third-party supplier of materials. All
parties agree the starting point for our legal analysis of duty is the analysis
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 9 of 21
provided by our Indiana Supreme Court in Ryan. Therein, our Indiana
Supreme Court explained:
As to the duty owed by a general contractor, the long-standing
rule in Indiana is that “a principal will not be held liable for the
negligence of an independent contractor.” Bagley v. Insight
Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995) (citing Prest-
O-Lite Co. v. Skeel, 182 Ind. 593, 597, 106 N.E. 365, 367 (1914);
also citing City of Logansport v. Dick, 70 Ind. 65, 78 (1880)).
Therefore, a general contractor . . . will ordinarily owe no
outright duty of care to a subcontractor’s employees, much less
so to employees of a sub-subcontractor. This means that when a
subcontractor fails to provide a reasonably safe workspace, the
general contractor will not incur liability for employee injury,
even when such injury is proximately caused by the
subcontractor negligence. The rationale behind this rule is that a
general contractor has little to no control over the means and
manner a subcontractor employs to complete the work. Stumpf v.
Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind. Ct. App.
2007)[, trans. denied].
However, five exceptions to our general rule exist. One such
exception allows for the existence of a duty of care where a
contractual obligation imposes a “specific duty” on the general
contractor. Bagley, 658 N.E.2d at 586. “If a contract
affirmatively evinces an intent to assume a duty of care,
actionable negligence may be predicated on the contractual
duty.” Stumpf, 863 N.E.2d at 876. In other words, a contract
that is found to demonstrate the general contractor’s intent to
assume a duty of care exposes the general contractor to potential
liability for a negligence claim where no such liability would
have otherwise existed. A duty imposed by contract, once
formed, is non-delegable and is thought to encourage the general
contractor to minimize the risk of resulting injuries. Bagley, 658
N.E.2d at 588.
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 10 of 21
Id. at 913-14 (internal footnote omitted). 4
[15] Our Indiana Supreme Court then analyzed the language in the contract making
TCI the general contractor for construction of a Gander Mountain store to
determine whether the contract affirmatively evinced an intent by TCI to
assume a duty of care toward Ryan, who was the employee of a sub-
subcontractor of TCI. In undertaking this analysis, the Court noted it was
“[c]onsidering this particular contract’s language,” “taking the contract as a
whole,” and applying “well-established principles of contract interpretation[.]”
Id. at 914.
In interpreting a contract, we ascertain the intent of the parties at
the time the contract was made, as disclosed by the language
used to express the parties’ rights and duties. We look at the
contract as a whole to determine if a party is charged with a duty
of care and we accept an interpretation of the contract that
harmonizes all its provisions. A contract’s clear and
unambiguous language is given its ordinary meaning. A contract
should be construed so as to not render any words, phrases, or
terms ineffective or meaningless.
Id. (internal citations omitted).
[16] The contract between Gander Mountain and TCI provided:
4
The footnote in Ryan listed the other four exceptions to the general rule that a general contractor has no
duty to independent contractors. See Ryan, 72 N.E.3d at 913 n.3. None of those other four exceptions is
raised by a party herein, but they include: (1) when the contract requires intrinsically dangerous work; (2)
when an act will cause a nuisance; (3) when an act “will probably cause injury to others unless due
precaution is taken;” and (4) when an act is illegal. Id.
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 11 of 21
“[TCI] recognizes the importance of performing the Work in a
safe manner so as to prevent damage, injury or loss to . . . all
individuals at the Site, whether working or visiting . . . .”
Appellant’s App. at 71. The contract also directs TCI to
“assume[ ] responsibility for implementing and monitoring all
safety precautions and programs related to the performance of
the Work.” Id. Furthermore, TCI was to “designate a Safety
Representative with the necessary qualifications and experience
to supervise the implementation and monitoring of all safety
precautions and programs related to the Work.” Id. The Safety
Representative was to “make routine daily inspections of the Site
and ... hold weekly safety meetings with [TCI’s] personnel,
Subcontractors and others as applicable.” Id. Finally, the
contract instructed that TCI and subcontractors “shall comply
with all Legal Requirements relating to safety.” Id.
Id. at 914-15. Our Indiana Supreme Court held that “language, taken as a
whole, makes clear that TCI intended to assume the duty of keeping the
worksite reasonably safe.” Id. at 915. As such, TCI “assumed a duty of care
not ordinarily imputed on a general contractor.” Id. at 915-16.
[17] However, our Indiana Supreme Court then went on to explain that its decision
was “solely guided by our contract interpretation precedent,” id. at 916, rather
than being based on existing caselaw regarding contractual assumption of duty.
Id.
Although the Court of Appeals’ cases on assumption of duty
certainly can be instructive—to the extent that they guide courts
in evaluating the spectrum of language that may reveal intent—
we think conducting a phrase-by-phrase comparison of language
in each Court of Appeals case to the contract involved here is not
the preferred approach.
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 12 of 21
Id. We keep this directive in mind as we turn to the contracts that existed
herein between Hendricks, Shiel Sexton, and Circle B.
1. Did Shiel Sexton assume a duty to protect Towe?
[18] Both Circle B and Towe assert that Shiel Sexton assumed a duty to protect
Towe when Shiel Sexton signed its Master Contract with Hendricks. In
particular, both Circle B and Towe point to Article 10.1 of that contract, which
provides:
The safety and health of Contractor or Contractor’s
employees, subcontractors and agents brought on Owner
premises are and will be the sole responsibility of Contractor.
Contractor will ensure that Contractor’s employees,
subcontractors and agents comply with all Owner rules and
regulations while on Owner premises. Owner reserves the right
to remove any Contractor’s employee, subcontractor or agent
who in Owner’s reasonable business judgment poses a threat to
the safety of Owner facilities or employees. Contractor will
report all accidents and injury-inducing occurrences arising from
the performance of Work immediately. Contractor is solely
responsible for any governmental or quasi-governmental
compliance concerning safety, health and accident reporting of
any kind. Owner is entitled to receive, at its request, copies of
any accident or incident reports prepared by Contractor.
(Shiel Sexton App. Vol. 2 at 104) (emphasis added).
[19] Towe asserts the first sentence of that paragraph means that Shiel Sexton
assumed sole responsibility for the safety of “anyone and everyone who would
have been on the project site performing any nature of work or providing any
materials in furtherance of the completion of the Ironworks project.” (Towe Br.
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at 22.) To support his assertion, Towe points to other phrases in various parts
of the Master Contract, including Article 2.2, Exhibit A, and Article 12. Article
2.2 states in relevant part:
Contractor will furnish all management, supervision, labor
materials, supplies (except to the extent Owner elects to, provide
materials and supplies), equipment, tools, machinery,
transportation, services, necessary and/or required personnel
protective equipment for its employees, and everything necessary
to fully and properly perform the Work to the satisfaction of the
Owner.
(Shiel Sexton App. Vol. II at 100.) From the four pages of the “Work Order”
that is Exhibit A, Towe highlights a sentence that provides: “Contractor will
obtain multiple bids for the Work from subcontractors and material suppliers
and will deliver bids to Owner for review with Contractor.” (Id. at 114.)
Article 12 addresses liens that may be filed against owner based on labor or
materials supplied, and its final sentence provides: “Contractor will provide
Owner with updated and ongoing lists of all subcontractors, vendors and
suppliers who are working on, or who are providing materials.” (Id. at 105.)
[20] Contrary to Towe’s assertions, the facts that Hendricks made clear in the Work
Order that it wanted to be part of the process of hiring subcontractors and
vendors – because there was a maximum cost for the Project that could not be
exceeded – and that Hendricks made clear that Shiel Sexton would be
responsible for payment of any liens for labor or materials that might be placed
on the property, do not require us to read Article 10.1’s reference to Contractor
Court of Appeals of Indiana | Opinion 18A-CT-1446| August 24, 2020 Page 14 of 21
being solely responsible for the health and safety of “Contractor’s employees,
subcontractors and agents” to include every possible sub-subcontractor or
vendor of a subcontractor. Courts are to infer a contractually assumed duty
that contravenes the common law presumption that a contractor has no duty
only if the language of the contract “affirmatively evinces an intent to assume a
duty of care.” Stumpf, 863 N.E.2d at 876.
[21] Circle B notes that Article 10.1 of the Master Contract also required Shiel
Sexton to “ensure that Contractor’s employees, subcontractors and agents
comply with all Owner rules and regulations while on Owner premises.” (Shiel
Sexton App. Vol. II at 104; and see Circle B Br. at 20.) That requirement,
however, is not as broad as the requirement in Ryan that TCI “exercise
complete and exclusive control over the means, methods, sequences and
techniques of construction.” 72 N.E.3d at 915.
[22] Moreover, although Article 10.1 required Shiel Sexton to “report all accidents
and injury-inducing occurrences arising from performance of Work
immediately[,]” (Shiel Sexton App. Vol. II at 104), neither Circle B nor Towe
has directed us to language in the Master Contract whereby Shiel Sexton was
charged with the duty to designate a “safety representative to perform
inspections and hold safety meetings with contractors[.]” Ryan, 72 N.E.3d at
915. We decline to cobble together language from various portions of the
Master Contract to change the meaning of the language provided in the
provision about Safety. None of the other language cited by Towe or Circle B
demonstrates Shiel Sexton intended to assume a duty toward the employee of a
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 15 of 21
third-party delivery service bringing supplies to a subcontractor. For these
reasons, we conclude the Master Contract between Hendricks and Shiel Sexton
did not contain language by which Shiel Sexton assumed a non-delegable duty
to protect Towe. 5 The trial court erred when it denied Shiel Sexton’s motion
for summary judgment because it owed no duty to Towe.
2. Did Circle B assume a duty to protect Towe?
[23] Shiel Sexton argues that, in its contract with Circle B, Circle B assumed a duty
to protect Towe. In relevant part, that contract provides:
ARTICLE 24 SAFETY
24.1 Conformance
Subcontractor shall at its own expense, comply with all
manufacturer’s literature, safety signage and laws, statutes,
codes, rules and regulations, lawful orders and/or ordinances
promulgated by any governmental authority, including without
limitation, the applicable requirements of the Occupational
Safety and Health Act of 1970, and the Construction Safety Act
of 1969. Subcontractor shall take all precautions which are
necessary to protect against any conditions created during or
caused by its Work which will involve any risk of bodily harm to
persons or risk of damage to any property. Subcontractor shall
continuously inspect its Work and the materials and equipment
5
Because we hold Shiel Sexton did not assume a duty, we need not address Circle B’s argument that Shiel
Sexton, if it had assumed such a duty, could not have entered into a contract with Circle B that created a
non-delegable duty for Circle B to protect Towe. (See Circle B Br. at 22-25; but see Towe Br. at 35-39 (arguing
both Shiel Sexton and Circle B could have assumed a duty) and ITLA Amicus Br. at 21-27 (same).) Instead
we proceed directly to whether Circle B assumed a non-delegable duty to Towe based on the language in the
contract between Shiel Sexton and Circle B.
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 16 of 21
which Subcontractor brings on the Project site to discover and
determine any such conditions which affect the safety and health
of employees. Subcontractor shall be solely responsible for
discovering and correcting any conditions.
24.2 Use of Power-operated Equipment for Hoisting
Subcontractor and any of its sub-subcontractors, vendors,
suppliers utilizing power-operated equipment that can hoist,
lower and horizontally move a suspended load, as set forth in 29
C.F.R. 1926.1400 shall comply with OSHA Crane and Derricks
Subpart CC. In addition, Subcontractor shall provide and pay
for all labor, materials, equipment, tools, construction equipment
and machinery and other services necessary to comply with 29
C.F.R. 1926.1402 relating to ground conditions and supporting
material. The subcontractor shall be deemed the Controlling
Entity as that term is defined in 29 C.F.R. 1926.1401.
24.3 Project Site Rules and Regulations
Subcontractor hereby acknowledges that at all times during the
term of this Subcontract Agreement, it shall comply with the
safety policy and the jobsite rules and regulations of the
Contractor, which may be modified from time to time.
Subcontractor shall take all necessary steps toward compliance
and shall have the sole responsibility for the safety of its
employees and agents. Subcontractor shall be liable for each
hazardous condition which Subcontractor either creates or
controls, whether or not the persons exposed to the hazard are
Subcontractor’s employees or agents. Subcontractor is
responsible for providing its employees and agents appropriate
personnel protective equipment (PPE) for the activity being
performed; at a minimum hard hats and appropriate clothing for
the Project as required by Contractor.
24.4 Controlling Contractor
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Subcontractor shall at all times be the controlling employer
responsible for the safety programs and precautions applicable to
its Work. Subcontractor shall control the activities of its
employees and any other person or entity for which
Subcontractor is responsible. Subcontractor shall be liable for
each hazardous condition which Subcontractor either creates or
controls. Subcontractor shall also be responsible for preventing
its employees and persons or entities for which it is responsible
from being exposed to any hazardous or dangerous condition. In
the event an action is undertaken against Contractor for
violations of law as a result of conditions allegedly created or
controlled by Subcontractor or its sub-subcontractors, or any
other person or entity for which Subcontractor is responsible,
Subcontractor shall indemnify and hold Contractor harmless
from all costs and/or damages which may be assessed as the
result of such action, including reasonable attorney’s fees and
disbursements incurred in the defense of such action.
24.5 Accident and Injury Reporting
Subcontractor shall immediately report to the Contractor any
injury or near miss to an employee or agent of the Subcontractor
which occurred at the Project site. Subcontractor shall deliver
copies of all accident and injury reports to Contractor and any
other person or entity entitled thereto by applicable law, this
Subcontract Agreement or the Subcontract Documents within
twenty-four (24) hours of occurrence unless any law or
requirement of the Subcontract Documents requires earlier
notice.
24.6 Safety Representative
Subcontractor and sub-subcontractors shall have on the Project
site a designated, qualified and competent Safety Representative
empowered to act on behalf of Subcontractor in all matters
pertaining to safety at all times while Subcontractor’s Work is
being performed. Before commencing its Work, Subcontractor
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 18 of 21
shall furnish to Contractor written notice of the appointment of
its Safety Representative or its Sub-subcontractor’s Safety
Representative. Appointed Safety Representative(s) shall not be
changed without written approval of Contractor. Subcontractor
and its sub-tier contractors shall conduct daily (or more
frequently if Work activities change) safety inspections of their
Work areas and take corrective measures as warranted. If
circumstances warrant such action in the Contractor’s reasonable
discretion, Contractor shall have the right to demand that
Subcontractor provide a fulltime safety professional as
Subcontractor’s Safety Representative, who [sic] sole
responsibility shall be to monitor the safe performance of
Subcontractor’s Work and matters related thereto.
(Shiel Sexton App. Vol. 2 at 164-65) (emphases in original).
[24] In Ryan v. TCI, our Indiana Supreme Court noted the “common thread”
amongst the cases that found a contractor assumed a duty of care was that those
contracts contained requirements for the contractor to: “1) take precautions for
safety of employees, 2) comply with applicable law and regulation, and 3)
designate a member of its organizations to prevent accidents.” 72 N.E.3d at
916. When we look at the contract language quoted above, we have little
difficulty recognizing the existence of those three requirements.
[25] Paragraph 24.6, which required Circle B to “have on the Project site a
designated, qualified and competent Safety Representative” who could act on
behalf of Circle B, (Shiel Sexton’s App. Vol. 2 at 165), satisfied Ryan’s third
common-thread requirement of requiring a designated person to prevent
accidents. Paragraphs 24.1 and 24.2 required Circle B to comply with “laws,
statutes, codes, rules and regulations, lawful orders and/or ordinances,” (id. at
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 19 of 21
164), along with relevant OSHA and Construction Safety laws, and those
requirements satisfy the second common-thread requirement from Ryan. 72
N.E.3d at 916 (“comply with applicable law and regulation”). Finally,
Paragraphs 24.3 and 24.4 require Circle B to “take precautions for safety of
employees,” Ryan, 72 N.E.3d at 916, as it provided Circle B “shall have sole
responsibility for the safety of its employees and agents,” (Shiel Sexton’s App.
Vol. 2 at 164), and it required Circle B to provide personnel protective
equipment for all employees and agents and to prevent hazardous or dangerous
conditions “created or controlled by Subcontractor or its sub-subcontractors . . .
.” (Id.)
[26] Because the contract Circle B entered into contains all three of those common-
thread requirements, we hold the language within the four-corners of the
contract document created a duty for Circle B to protect employees, agents, and
other “persons[,]” (see id., Paragraph 24.3), from hazardous or dangerous
situations created by Circle B’s employees or agents. See, e.g., Ryan, 72 N.E.3d
915 (“The harmonized sum of all these provisions . . . convinces us that the TCI
contract affirmatively demonstrated TCI’s intent to assume a duty of care
toward Ryan.”). Accordingly, we affirm the trial court’s grant of summary
judgment for Towe as to the issue of Circle B’s assumption of a duty to protect
him, and we “remand for further proceedings on breach, causation, and
damages.” Id. at 917.
Conclusion
Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020 Page 20 of 21
[27] We reverse the trial court’s grant of summary judgment to Towe as to the
assumption of a duty by Shiel Sexton, and we remand for the trial court to enter
summary judgment for Shiel Sexton as it had no duty to protect Towe. We
affirm the trial court’s grant to summary judgment to Towe as to Circle B’s
assumption of a duty to protect Towe, and we remand for further proceedings
as to breach, causation, and damages.
[28] Reversed in part, affirmed in part, and remanded.
Mathias, J., and Brown, J., concur.
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