FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

CHRISTOPHER G. STEVENSON                     RICHARD R. SKILES
D. BRUCE KEHOE                               JANET M. PRATHER
Wilson Kehoe Winingham LLC                   Skiles Detrude
Indianapolis, Indiana                        Indianapolis, Indiana

WAYNE GREESON
The Law Offices of Wayne Greeson, PC
Connersville, Indiana                                             Feb 28 2014, 9:05 am




                             IN THE
                   COURT OF APPEALS OF INDIANA

JOY ELAINE GWINN,                            )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )        No. 33A04-1306-CT-307
                                             )
HARRY J. KLOEPPEL & ASSOCIATES, INC.         )
                                             )
      Appellee-Defendant.                    )


                     APPEAL FROM THE HENRY CIRCUIT COURT
                         The Honorable Mary G. Willis, Judge
                            Cause No. 33C01-1109-CT-36


                                  February 28, 2014


                             OPINION- FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       Joy Elaine Gwinn appeals the trial court’s entry of summary judgment in favor of

Harry J. Kloeppel & Associates, Inc. (“Kloeppel”), on Gwinn’s claim for negligence. Gwinn

was injured when a projection screen fell from the ceiling of the high school classroom in

which she was teaching. Gwinn filed a complaint for negligence against Kloeppel alleging

that Kloeppel, the general contractor on a school renovation project, had negligently installed

the projection screen. Kloeppel moved for summary judgment asserting that it did not

personally install the screen but had hired a subcontractor for the installation, and also that it

owed no duty to Gwinn. Gwinn responded and moved for partial summary judgment

asserting that Kloeppel owed a duty to her and was vicariously liable for the negligence of its

subcontractors. The trial court entered summary judgment in favor of Kloeppel finding no

duty as a matter of law. The sole issue presented for our review is whether the trial court

erred when it entered summary judgment in favor of Kloeppel.             Finding that Kloeppel

assumed a nondelegable duty to Gwinn pursuant to contract, we reverse and remand.

                               Facts and Procedural History

       The undisputed facts are that in April 2007, Shenandoah School Corporation

contracted with Kloeppel to perform work and services and to supply equipment for a

renovation project at Shenandoah High School. As part of that project, Kloeppel purchased

projection screens from Claridge Products & Equipment Inc. and subcontracted with

Casework Installations, Inc. (“Casework”), to install the projection screens. On October 26,

2009, Gwinn, a chemistry and physics teacher employed at the high school, was injured when


                                                2
the projection screen in her classroom fell from a ceiling mount while she was retracting the

screen. One end of the screen fell and struck Gwinn, knocking her to the floor and causing

her to fracture her humerus.

       Gwinn filed a complaint for negligence against Kloeppel alleging that Kloeppel

“carelessly and negligently failed to exercise its duty of reasonable care in its work installing

and hanging the projection screen” in her classroom. Appellant’s App. at 12. Kloeppel

answered and subsequently filed a motion for summary judgment and designation of

evidence arguing that it did not personally install the screen but had hired a subcontractor to

do so, that it owed no duty to Gwinn, and even assuming a duty, there is insufficient evidence

to establish that Kloeppel breached that duty. Gwinn responded with a cross motion for

summary judgment arguing that as the general contractor on the renovation project, Kloeppel

owed her a nondelegable duty of care pursuant to its contract with Shenandoah School

Corporation and should be held vicariously liable for the acts or omissions of its

subcontractors. Following a hearing, the trial court entered its order granting summary

judgment in favor of Kloeppel and denying Gwinn’s motion for partial summary judgment.

Specifically, the trial court concluded, among other things, that Kloeppel owed no duty to

Gwinn as a matter of law. This appeal ensued.

                                  Discussion and Decision

       Our standard of review of a summary judgment order is well settled:

       We review a summary judgment order de novo. Considering only those facts
       supported by evidence that the parties designated to the trial court, we must
       determine whether there is a “genuine issue as to any material fact” and
       whether “the moving party is entitled to judgment as a matter of law.” We

                                               3
         construe all factual inferences in the non-moving party’s favor and resolve all
         doubts as to the existence of a material issue against the moving party.

Kovach v. Caligor Midwest, 913 N.E.2d 193, 196-97 (Ind. 2009) (citations omitted). The

party appealing a trial court’s grant of summary judgment bears the burden of persuading this

Court that the ruling was erroneous. Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App.

2012).

         On appeal, Gwinn argues that the trial court erred when it entered summary judgment

in favor of Kloeppel on her negligence claim based upon its conclusion that Kloeppel owed

no duty to her as a matter of law. To prevail on a negligence claim, the plaintiff must show:

(1) a duty owed to the plaintiff by the defendant; (2) a breach of duty by allowing conduct to

fall below the applicable standard of care; and (3) a compensable injury proximately caused

by the defendant’s breach of duty. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010).

Summary judgment is rarely appropriate in negligence cases. Rhodes v. Wright, 805 N.E.2d

382, 387 (Ind. 2004). However, summary judgment is appropriate when the undisputed

material evidence negates one element of a negligence claim. Winfrey v. NLMP, Inc., 963

N.E.2d 609, 612 (Ind. Ct. App. 2012).

         We begin by noting that, in her brief on appeal, Gwinn presents argument and cites

authority to support her contention that Kloeppel owed her a duty as a matter of law and thus

the trial court’s entry of summary judgment in favor of Kloeppel on the issue of duty was

inappropriate. Kloeppel wholly fails to respond regarding the issue of duty and instead

asserts a novel claim that summary judgment in its favor is appropriate because there is no



                                               4
genuine issue of material fact on the issue of proximate cause.1 Kloeppel’s failure to respond

to an issue raised in Gwinn’s brief is akin to failing to file a brief as to that issue. See Elliott

v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind. Ct. App. 2010), trans. denied. “Although

this failure does not relieve us of our obligation to correctly apply the law to the facts in the

record in order to determine whether reversal is required, counsel for appellee remains

responsible for controverting arguments raised by the appellant.” Id. (quoting Nance v.

Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind. Ct. App. 2005), trans. denied). To

obtain reversal, the appellant need only establish that the trial court committed prima facie

error. Farah, LLC v. Architura Corp., 952 N.E.2d 328, 334 (Ind. Ct. App. 2011). Prima

facie means “at first sight, on first appearance, or on the face [of] it.” Ponziano Constr.

Servs. Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 875 (Ind. Ct. App. 2012). With this in

mind, we turn to Gwinn’s uncontroverted arguments.

        Gwinn first asserts that Kloeppel, as general contractor on the renovation project,

owed a duty to her as a foreseeable victim of the alleged negligent installation of the

projection screen pursuant to our supreme court’s holding in Peters v. Forster, 804 N.E.2d

736 (2004). In Peters, our supreme court abrogated Indiana’s “acceptance rule” according to

which contractors owed no duty of care to third parties injured on a premises after the owner




        1
         In its appellee’s brief, Kloeppel urges that, even assuming it owed a duty to Gwinn, summary
judgment is warranted in its favor because there is no genuine issue of material fact on the issue of proximate
cause. We find this argument disingenuous in light of our review of the record. In its brief in opposition to
Gwinn’s motion for partial summary judgment, Kloeppel acknowledged that material factual issues remain for
determination by a jury on the issues of both breach and proximate cause. Appellant’s App. at 276-77, 280-81.


                                                      5
of the premises accepted the work. Id. at 742. Instead, the Peters court explained the more

appropriate rule as follows:

        A rule that provides that a builder or contractor is liable for injury or damage
        to a third person as a result of the condition of the work, even after completion
        of the work and acceptance by the owner, where it was reasonably foreseeable
        that a third party would be injured by such work due to the contractor’s
        negligence, is consistent with traditional principles of negligence upon which
        Indiana’s scheme of negligence law is based.

Id. However, unlike the present case, Peters involved a claim brought by a third party

against the contractor who actually installed an allegedly faulty handicap ramp, as opposed to

the allegation of vicarious liability for the negligence of a subcontractor as is clearly at issue

here.2 Cf. Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1192 (Ind. Ct. App. 2011) (finding

Peters applicable to determine duty in claim against contractor who actually performed safety

work on hotel bathtub in which plaintiff was injured).

        It is undisputed that Kloeppel did not install the projection screen that fell and

allegedly caused Gwinn’s injuries. Rather, the designated evidentiary material indicates that

Kloeppel hired a subcontractor, Casework, to perform that task.3 Accordingly, although

Indiana law currently adheres to the overriding rule that, even after acceptance, contractors


        2
           Vicarious liability is “indirect legal responsibility.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142,
147 (Ind. 1999) (quoting BLACK’S LAW DICTIONARY 1404 (5th ed. 1979)).
         3
           We observe that the trial court was apparently swayed by Kloeppel’s contention that the identity of
who installed the projection screen was not a fact pled in Gwinn’s complaint and somehow remained an
“unknown” issue of fact during summary judgment proceedings. Appellant’s App. at 6. First, we note that
Indiana follows liberal rules of notice pleading. See Ind. Trial Rule 8. Additionally, in support of its motion
for summary judgment, Kloeppel designated evidence indicating that, while Kloeppel did not install the
projection screen, it subcontracted with Casework to install the screen and paid Casework for that work.
Although Kloeppel maintained that it was not absolutely positive that Casework actually installed the screen,
Casework’s identity as the installer of the screen is clearly a reasonable inference from the designated facts.
See Kroger, 930 N.E.2d at 5 (all factual inferences are construed in favor of the nonmoving party).


                                                      6
owe a duty of care to reasonably foreseeable third parties as enunciated in Peters, whether

Kloeppel owed a duty to Gwinn under the circumstances presented here is more specifically

governed by a well-defined legal doctrine of vicarious liability: that of nondelegable duty.4

        The long standing general rule is that a principal is not liable for the negligence of an

independent contractor. Selby v. NIPSCO, 851 N.E.2d 333, 337 (Ind. Ct. App. 2006), trans.

denied. “The rationale behind this rule is that a ‘general contractor typically exercises little,

if any, control over the means or manner of the work of its subcontractors, and requires only

that the completed work meet the specifications of the owner in its contract with the general

contractor.”’ Shawnee Constr. & Eng’g, Inc. v. Stanley, 962 N.E.2d 76, 81 (Ind. Ct. App.

2011) (quoting Harris v. Kettelhut Constr., Inc., 468 N.E.2d 1069, 1072 (Ind. Ct. App. 1984),

trans. denied (1985)), trans. denied (2012). However, in light of public policy concerns

seeking to limit a principal’s ability to avoid responsibility for some activities by hiring

independent contractors, Indiana courts have recognized the five following exceptions to the

general rule: (1) where the contract requires the performance of intrinsically dangerous work;

(2) where the principal is by law or contract charged with performing a specific duty; (3)

where the act will create a nuisance; (4) where the act to be performed will likely cause

injury to others unless due precaution is taken; and (5) where the act to be performed is

illegal. Beatty v. LaFountaine, 896 N.E.2d 16, 22 (Ind. Ct. App. 2008), trans. denied (2009).

“The duties associated with these exceptions are considered nondelegable, and the principal



        4
         Courts employ various doctrines of tort and agency law to impose vicarious liability, including
respondeat superior, apparent or ostensible agency, agency by estoppel, and the nondelegable duty doctrine.
See Sword, 714 N.E.2d at 147-48.

                                                    7
is liable for negligence of the independent contractor because the responsibilities are deemed

so important to the community that the principal should not be permitted to transfer those

duties to another.” Id. (citation and quotation marks omitted). The exceptions to the rule of

nonliability encourage the principal to participate in the control of work covered by the

exceptions in order to minimize the risk of resulting injuries. Bagley v. Insight Commc’ns

Co., 658 N.E.2d 584, 588 (Ind. 1995)).

       Gwinn argues that Kloeppel owed a duty to her with respect to Casework’s installation

of the projection screen pursuant to the second exception to a general contractor’s

nonliability for the negligence of its subcontractors: “where the principal is by law or contract

charged with performing the specific duty.” Specifically, Gwinn argues that Kloeppel

assumed a duty of reasonable care to her through its renovation contract with Shenandoah

School Corporation. “The existence of a duty is a pure question of law for the court to

determine.” Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 876 (Ind. Ct. App. 2007),

trans. denied.

       As we recently explained:

       The extent of the duty owed, if any, is a matter of contract interpretation. In
       determining whether a duty exists we will give effect to the intent of the
       parties as reflected by the language of the contract. We will determine the
       meaning of the contract by examining all of its provisions, not from a
       consideration of individual words, phrases, or paragraphs alone. Where the
       contract affirmatively evinces the parties’ intent to charge one party with a
       duty of care, actionable negligence may be predicated upon that contractual
       duty. This exception to the general rule of nonliability is not triggered merely
       because a contractor may have a right to inspect and test the work, approve the
       work and/or employees of the general contractor or require the contractor to
       follow company safety rules. Rather, for this exception to apply, a contract
       must provide for a specific duty of care.

                                               8
Shawnee, 962 N.E.2d at 82 (citations omitted).

        Gwinn relies primarily on paragraphs 3.3.1 and 3.3.2, appearing under the heading

“Supervision and Construction Procedures,” of the contract between Kloeppel and

Shenandoah School Corporation, which provide in relevant part:

        The Contractor shall supervise and direct the Work, using the Contractor’s best
        skill and attention. The Contractor shall be solely responsible for and have
        control over construction means, methods, techniques, sequences and
        procedures and for coordinating all portions of the Work under the Contract,
        unless the Contract Documents give other specific instructions concerning
        these matters.

        The Contractor shall be responsible to the Owner for acts and omissions of the
        Contractor’s employees, Subcontractors and their agents and employees, and
        other persons or entities performing portions of the Work for or on behalf of
        the Contractor or any of its Subcontractors.

Appellant’s App. at 231.5 Gwinn argues that the designated contract language indicates that

Kloeppel assumed a specific duty to supervise and direct the renovation work and to be

solely responsible for the construction means, methods, and procedures that were executed,

including the installation of the projection screen. Gwinn contends that Kloeppel further

assumed specific responsibility for the acts and omissions of its subcontractors performing

the work.

        In support of her claim that Kloeppel assumed a nondelegable duty of care to her

pursuant to the contract language cited above, Gwinn was constrained to direct us to various

cases involving negligence claims against general contractors brought by injured construction



        We note that the contract at issue here is “AIA Document A2010-1997,” a form agreement drafted by
        5

the American Institute of Architects. Appellant’s App. at 219-62.

                                                   9
workers in which certain contractual provisions have been held to support a legal duty of care

owed to contractor or subcontractor employees. See, e.g., Stumpf, 863 N.E.2d at 878 (“The

Contractor shall take all necessary precautions for the safety of employees on the work….”);

Harris, 468 N.E.2d at 1072-73 (“The Contractor shall take all necessary precautions for the

safety of all employees on the Project….”); Jones v. City of Logansport, 436 N.E.2d 1138,

1148 (Ind. Ct. App. 1982) (“The Contractor shall be solely responsible for initiating,

maintaining, and supervising all safety precautions and programs in connection with the

Work. He will take all necessary precautions for the safety of, and will provide the necessary

protection to prevent damage, injury or loss to: all employees on the Work, including those of

subcontractors….”). Indeed, from our review of these cases and other relevant authority, it is

apparent that our appellate courts have typically been asked only to determine whether a

general contractor assumed a legal duty of care for jobsite-employee safety pursuant to a

contract to which it was a party, and that our courts have not been asked whether a general

contractor has contractually assumed a duty to a third party.

       Regardless of the distinguishing attributes of the cited authority, as a practical matter,

it is inconsequential that our reported caselaw on this issue involves jobsite safety claims

made by subcontractor employees who were injured or killed on the construction site. Our

supreme court has specifically recognized that the five nondelegable-duty exceptions to the

general rule regarding general contractor nonliability for subcontractor negligence apply to

lawsuits by both employees of the contractor or subcontractor and third parties. Bagley, 658

N.E.2d at 587-88. Moreover, although the cases offer us little insight regarding whether the


                                              10
precise contract language involved here supports an assumed duty, the results reached and

reasoning offered are indicative of our courts’ willingness to apply the exceptions to the

general rule and to bind general contractors to the specific duties assumed by contract.

       Our review of the designated contract language here indicates that Kloeppel assumed

a specific duty to supervise and direct the renovation work and to assure that all construction

means, methods, and procedures were executed with reasonable care. Indeed, Kloeppel did

not merely have a right to supervise the work of its subcontractors; the contract instructed

that Kloeppel “shall” supervise the work and that Kloeppel was “solely responsible” for the

construction methods used. As stated earlier, the rationale behind the general rule of

nonliability is that a general contractor typically exercises little, if any, control over the

means or manner of the work of its subcontractors. See Shawnee, 962 N.E.2d at 81. Here,

Kloeppel contractually assumed the duty to be “solely responsible for and have control over

construction means, methods, techniques, sequences and procedures” of the work. We

further conclude that Kloeppel assumed specific responsibility for the acts and omissions,

negligent or otherwise, of its subcontractors. We agree with Gwinn’s contention that the

contract language affirmatively evinces an intent to charge Kloeppel with a specific duty of

care. Kloeppel has failed to respond or offer alternative arguments to convince us otherwise.

       We conclude that, by virtue of its contract with Shenandoah School Corporation,

Kloeppel assumed a duty to supervise the work of its subcontractors and the construction

methods employed in a reasonably prudent manner and specifically assumed responsibility

for the alleged negligent acts and omissions of its subcontractors. This duty of care was


                                              11
owed to Shenandoah School Corporation through its contract and, due to the broad language

used and the lack of language expressly limiting its responsibility, is clearly extended to

Gwinn, an employee of the school corporation, as a reasonably foreseeable victim. See

generally Peters, 804 N.E.2d at 743 (duty of reasonable care owed to those who might

reasonably be foreseen as being subject to injury by breach of the duty); see also Webb v.

Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) (imposition of duty is limited to those instances

where reasonably foreseeable victim is injured by reasonably foreseeable harm); cf. Hunt

Const. Group Inc. v. Garrett, 964 N.E.2d 222, 229 (Ind. 2012) (finding no contractual duty

but noting that parties clearly sought to avoid broad contract interpretation by including clear

language limiting liability). We reiterate that, if Kloeppel believed that the weight of the legal

authority supports a conclusion that it did not assume a nondelegable duty by contract, then

Kloeppel could have and should have addressed such arguments in its appellee’s brief and

directed any such authority to this Court’s attention. Without contradiction from Kloeppel,

Gwinn has successfully persuaded us that the trial court’s ruling was erroneous.6

        Kloeppel owed a duty to Gwinn as a matter of law. Accordingly, the trial court erred

when it granted summary judgment in favor of Kloeppel and denied partial summary

judgment in favor of Gwinn on the issue of duty. Genuine issues of material fact remain on

the issues of breach and proximate cause. Therefore, we reverse the trial court’s entry of

summary judgment and remand for further proceedings consistent with this opinion.



        6
          Because we reverse, we need not reach Gwinn’s additional contention that the trial court abused its
discretion in granting Kloeppel’s motion to strike portions of the sworn declaration of Perry Neal, as we relied
on no portion of the declaration in reaching our decision.

                                                      12
      Reversed and remanded.

BAKER, J., and NAJAM, J., concur.




                                    13
