                                                                                     FILED
                                                                                May 23 2016, 9:59 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      John P. Daly, Jr.                                         Donald G. Orzeske
      Golitko & Daly, PC                                        Beth L. Riga
      Indianapolis, Indiana                                     Goodin Orzeske & Blackwell, PC
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael Ryan,                                             May 23, 2016
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                49A02-1508-CT-1198
              v.                                                Appeal from the Marion Superior
                                                                Court
      TCI Architects/Engineers/                                 The Honorable Thomas Carroll,
      Contractors, Inc. and BMH                                 Judge
      Enterprises, Inc., d/b/a Craft                            Trial Court Cause No.
      Mechanical,                                               49D06-1303-CT-8401
      Appellee-Defendant.




      May, Judge.


[1]   Michael Ryan was injured while working on a construction project. Ryan

      worked for Romines, a subcontractor to Craft, who was a subcontractor to the

      general contractor, TCI. Ryan sued Craft and TCI, claiming they had a duty to

      provide him a safe workplace and their breach caused his injury. Ryan moved


      Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016                            Page 1 of 15
      for partial summary judgment, claiming both defendants had a non-delegable

      contractual duty toward him. TCI 1 moved for summary judgment on duty,

      breach, and proximate cause. As TCI had no duty toward Ryan, we affirm.


                                  Facts and Procedural History 2
[2]   Ryan was an employee of B.A. Romines Sheet Metal. Ryan had been a sheet

      metal worker since 1999 and was a member of the sheet metal workers’ union.

      The union assigned him to work for Romines on a Gander Mountain store in

      Lafayette. On his second day there, Ryan was removing ductwork hanging

      above the second-floor decking of the building. Ryan claimed he lost his

      balance while standing on the top step of an eight-foot ladder and fell.


[3]   TCI was general contractor for the work on the store. The contract TCI and

      Gander entered into was “DBIA Document No. 530 1998 Standard Form of

      Agreement Between Owner and Design-Builder.” (Id. at 52.) The contract

      includes DBIA Document No. 535, Standard Form of General Conditions of

      Contract Between Owner and Design-Builder.


[4]   Section 2.8.1 of the general contract provided TCI “recognizes the importance

      of performing the Work in a safe manner so as to prevent damage, injury or loss




      1
       It is not clear from this record whether Craft moved for summary judgment, but this appeal involves only
      TCI.
      2
        We heard oral argument before the Indiana State Bar Association’s Leadership Development Academy on
      February 16, 2016, at the Indiana State Library in Indianapolis. We thank the ISBA and the State Library
      for their hospitality and we commend counsel on the quality of their oral advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016                        Page 2 of 15
      to . . . all individuals at the site, whether working or visiting.” (Id. at 71.) It

      assumed “all responsibility for implementing and monitoring all safety

      precautions and programs related to the performance of the Work.” (Id.) It

      would “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.)


[5]   Section 2.8.3 provided, however, TCI’s

              responsibility for safety . . . is not intended in any way to relieve
              Subcontractors and Sub-Subcontractors of their own contractual
              and legal obligations and responsibility for . . . taking all
              necessary measures to implement and monitor all safety
              precautions and programs to guard against injury, losses,
              damages or accidents resulting from their performance of the
              work.


      Id.


[6]   TCI hired several subcontractors, at least one of which, Craft Mechanical,

      contracted with Ryan’s employer, B.A. Romines Sheet Metal. The contract

      between TCI and Craft provided Craft “shall be solely responsible for the

      protection and safety of its employees.” (Id. at 111.) The Craft subcontract

      with Romines provided Craft “would assume toward [Romines] all obligations

      and responsibilities that [TCI] . . . assumes toward [Craft].” (Id. at 138.) It

      obliged Romines to “take reasonable safety precautions with respect to

      performance of this Subcontract,” to “comply with safety measures initiated by



      Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016         Page 3 of 15
      [Craft] and with all applicable laws . . . for the safety of persons and property in

      accordance with the requirements of the Prime Contract.” (Id. at 140.)


[7]   Ryan moved for partial summary judgment, claiming TCI had a non-delegable

      contractual duty toward him. TCI moved for summary judgment on duty,

      breach, and proximate cause. The trial court denied Ryan’s motion, finding

      “genuine issues of material fact exist with regard to the essential element of

      duty.” (Id. at 11.) But it then granted the TCI motion, finding there were not

      any genuine issues of material fact to be submitted to a jury.


                                      Discussion and Decision
[8]   Summary judgment is appropriate where the designated evidence shows there is

      no genuine issue as to any fact material to a particular issue or claim and that

      the moving party is entitled to judgment as a matter of law. WellPoint, Inc. v.

      Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 29 N.E.3d 716, 720 (Ind. 2015),

      modified on reh’g on other grounds, 38 N.E.3d 981 (Ind. 2015). An appellate court

      reviews entries of summary judgment de novo, through the same lens as the trial

      court, construing all designated evidence and reasonable inferences and

      resolving any doubts as to the existence of a genuine issue of material fact in

      favor of the nonmoving party. Id. at 720-21. The interpretation of a contract is

      particularly well-suited for de novo appellate review, because it generally

      presents questions purely of law. Id. at 721. Clear and unambiguous contract

      language is given its ordinary meaning. Id. Where contractual language is

      ambiguous, our primary goal is to determine the intent of the parties at the time


      Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016    Page 4 of 15
       the contract was made. Id. The party appealing a decision on summary

       judgment bears the burden of persuading us the ruling was erroneous. Morris v.

       Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012).


[9]    The tort of negligence consists of three elements: 1) a duty owed to the plaintiff

       by the defendant; 2) a breach of that duty by the defendant; and 3) injury to the

       plaintiff proximately caused by that breach. Bloemker v. Detroit Diesel Corp., 720

       N.E.2d 753, 756 (Ind. Ct. App. 1999), reh’g denied, trans. denied. The existence

       of a duty owed to the plaintiff is usually a question of law for the court’s

       resolution. Id. at 757. Summary judgment is rarely appropriate in a negligence

       action, but it may be suitable to determine the legal question of whether there is

       a duty. Id. Absent a duty, there can be no breach, and thus, no basis for

       recovery under a negligence theory. Id.


[10]   As a general rule, an employer does not have a duty to supervise the work of an

       independent contractor to assure a safe workplace and, consequently, is not

       liable for the negligence of the independent contractor. Stumpf v. Hagerman

       Const. Corp., 863 N.E.2d 871, 876 (Ind. Ct. App. 2007), trans. denied. The

       rationale behind the 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. Id. But we have recognized an exception




       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016      Page 5 of 15
       to that general rule when one party is by law or contract 3 charged with

       performing the specific duty. Id.


[11]   In determining whether a party assumed a duty by contract, as Ryan argues

       TCI did, we look at the parties’ intent at the time of execution of the contract as

       disclosed by the language used to express their rights and duties. Id. We look

       to the contract as a whole to determine if a party is charged with a duty of care

       pursuant to the contract. Id. We accept an interpretation of the contract that

       harmonizes its provisions. Id. If a contract affirmatively evinces intent to

       assume a duty of care, actionable negligence may be predicated on the

       contractual duty. Id. Such duty is considered non-delegable, and a principal

       will be liable for the negligence of the contractor because the responsibilities are

       deemed so important to the community that the principal should not be

       permitted to transfer these duties to another. Id. at 876-77.


[12]   To impose liability, a contract provision must be specific as to the duty assumed

       by the general contractor. Harris v. Kettelhut Constr., Inc., 468 N.E.2d 1069,

       1076-77 (Ind. Ct. App. 1984), reh’g denied, trans. denied. In Stumpf, we

       determined Hagerman, the general contractor, contractually assumed a duty of




       3
         On appeal Ryan argues the language in the TCI contract is a “plain English” version of an American
       Institute of Architects (AIA) form contract that we have held creates a duty of safety on the part of the
       builder on a construction site. It is not. TCI correctly notes the language is in fact a form contract from the
       Design-Build Institute of America (DBIA), not the AIA, and as explained below the language is significantly
       different. The parties direct us to no case law interpreting the DBIA contract language.

       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016                            Page 6 of 15
       care to the employees of its subcontractors when its contract required

       Hagerman

               to take precautions for the safety of employees on the work site.
               As in Perryman [v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240
               (Ind. Ct. App. 1994), trans. denied], Hagerman was required to
               designate a responsible member of its organization whose duty
               would be the prevention of accidents. Paragraph forty-four of the
               contract further provided: “The Contractor shall administer and
               comply with all the rules, standards, and regulations of the
               Construction Safety Act [and OSHA].” Appellants’ App. p. 740.
               Taken as a whole, we believe that this contractual language
               evinces intent by the parties to charge Hagerman with a duty of
               care for the safety of all the employees on the project, including
               the employees of its subcontractors.


       863 N.E.2d at 878.


[13]   Our decision was premised on this language in the contract between Hagerman

       and Purdue University:


               The Contractor shall take all necessary precautions for the safety
               of employees on the work, and shall comply with all applicable
               provisions of Federal, State, and Municipal safety laws 4 and
               building codes to prevent accidents or injury to persons on, about
               or adjacent to the premises where the work is being performed. . .
               . Contractor shall designate a responsible member of its




       4
         We noted that a duty cannot be created by an OSHA regulation alone. Stumpf, 863 N.E.2d at 876 n.2. A
       determination made under OSHA regulations is irrelevant as to the issue of whether the defendant owed the
       plaintiff a duty because an OSHA standard cannot be used to expand an existing common law or statutory
       duty, nor can it be used as evidence of an expanded duty of care. Id.



       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016                       Page 7 of 15
                organization on the work, whose duty shall be the prevention of
                accidents.


       Id. at 877 (footnote added). The Stumpfs contended that language indicated

       Hagerman intended to assume a duty of care to all the employees on the

       project, and that it was required to ensure that the subcontractors implemented

       safety procedures. We agreed. Id.


[14]   The corresponding language in the TCI contract 5 is different. It provides in

       section 2.8.1 that:


                [TCI] recognizes the importance of performing the Work in a safe
                manner so as to prevent damage, injury or loss to (i) all
                individuals at the site, whether working or visiting, (ii) the Work,
                including materials and equipment incorporated into the Work or
                stored on-Site or off-Site, and (iii) all other property on the Site or
                adjacent thereto. [TCI] assumes “responsibility for implementing
                and monitoring all safety precautions and programs related to the
                performance of the Work. [TCI] shall, prior to commencing
                construction, 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. Unless otherwise required by the
                Contract Documents, [TCI’s] Safety Representative shall be an
                individual stationed at the Site who may have responsibilities on
                the project in addition to safety. The Safety Representative shall




       5
         In his brief Ryan offers a “table” that he says “sets out the [TCI] and Stumpf contract language side by side
       for easy comparison.” (Appellant’s Br. at 5-6.) The Stumpf contractual language as Ryan presents it in the
       table does not exactly match the contract language as we quoted it in Stumpf. However, it does not appear
       the differences are legally significant. Our reading of Stumpf indicates most of the provisions of the Stumpf
       contract Ryan includes in his “table” cannot be found in the Stumpf decision. If the Stumpf contract is
       included in Ryan’s Appendix, the table of contents does not so indicate.

       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016                            Page 8 of 15
               make routine daily inspections of the Site and shall hold weekly
               safety meetings with [TCI’s] personnel, Subcontractors and
               others as applicable.


       (App. at 71) (emphasis added).


[15]   The Stumpf language that we found gave rise to a general contractor’s duty

       obliged the general contractor to 1) take all necessary precautions for the safety

       of employees on the work; 2) comply with all applicable provisions of Federal,

       State, and Municipal safety laws and building codes to prevent accidents or

       injury to persons on, about, or adjacent to the premises where the work is being

       performed; and 3) designate a person whose duty is prevention of accidents.

       863 N.E.2d at 877.


[16]   We addressed the effect of similar contract language in Capitol Const. Servs., Inc.

       v. Gray, 959 N.E.2d 294 (Ind. Ct. App. 2011). Capitol, the general contractor,

       agreed to “comply with all laws, ordinances, rules and regulations bearing on

       the project” and “maintain physical conditions and employee performance on

       the jobsite during the course of construction to conform with all local and

       federal laws, rules and regulations including those covered by the Occupational

       Safety and Health Act of 1970.” Id. at 299. The contract provided Capitol was

       “as fully responsible for the acts and omissions of his subcontractors, and of

       persons either directly or indirectly employed by them, as he is for the acts and

       omissions of persons employed directly by him.” Id. Capitol would “provide

       and require the use of conventional fall protection, i.e. personal fall arrest

       systems, safety net systems or guardrail systems . . . when its employees or

       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016     Page 9 of 15
       subcontractors are performing construction work that is in excess of six feet above

       a lower level. Id. (emphasis added). Those provisions, we determined, “go

       beyond requiring that Capitol merely supervise the work of its employees and

       subcontractors, and instead they contain language requiring the contractor to

       take precautions for the safety of employees on the work site, thereby

       affirmatively evincing the intent on Capitol’s part to assume a duty of care.” Id.

       at 303.


[17]   We noted in Capitol that the Stumpf, Perryman, and Harris contracts evinced

       intent by the parties to charge the general contractor with a duty of care for the

       safety of all the employees on the project, including the employees of its

       subcontractors. Id. at 303. All three contracts contained similar language

       requiring the contractor to take precautions for the safety of employees on the

       work site. Id. In Stumpf, for example, Hagerman was contractually required to

       designate a member of its staff whose duty would be to prevent accidents.

       Capitol, 959 N.E.2d at 302.


[18]   The TCI contract, by contrast, does not require TCI to “take precautions” as

       did the Stumpf contract, id., but instead says TCI “recognizes the importance”

       of safety. (App. at 71.) TCI’s safety representative was not someone “whose

       duty shall be the prevention of accidents,” 863 N.E.2d at 877, as was the

       designated safety representative in Stumpf, but instead was someone charged

       with “supervis[ing] the implementation and monitoring” of safety precautions.

       (App. at 71.) That TCI’s representative is charged only with “supervising”



       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016   Page 10 of 15
       suggests the “implementation and monitoring” would be done by someone else;

       the TCI subcontracts indicate the subcontractors had that responsibility.


[19]   In Capitol, we distinguished the Stumpf, Perryman, and Harris contracts from the

       contract in Helms v. Carmel High Sch. Vocational Bldg., 844 N.E.2d 562, 564 (Ind.

       Ct. App. 2006), aff’d in part by 854 N.E.2d 345 (Ind. 2006), where the general

       contractor was obliged to ensure that its construction “conform to all applicable

       laws of the State of Indiana.” That language did not evince an intent that the

       general contractor had contracted to provide a safe worksite for its

       subcontractors, id. at 566, because unlike the Stumpf contract, the language did

       not

               specifically assign[] [the general contractor] the duty to provide
               for the safety of its employees and to prevent injury to
               employees. Furthermore, [the general contractor] contractually
               agreed to administer and comply with OSHA regulations. [The
               general contractor] was also contractually required to designate a
               member of its staff whose duty would be to prevent accidents.


       Capitol, 959 N.E.2d at 303 (quoting Stumpf, 863 N.E.2d at 878).


[20]   Similarly, in Shawnee Const. & Eng’g, Inc. v. Stanley, 962 N.E.2d 76, 84 (Ind. Ct.

       App. 2011), trans. denied, we determined when the general contract and the

       relevant subcontract were taken as a whole, “neither contract evinces a duty

       upon Shawnee [the general contractor] to ensure the safety of all persons

       providing services.” Id. For example, no provisions in the agreements

       delegated a duty of inspection to Shawnee. We noted the subcontract, like the

       Craft subcontract in the case before us, provided that Schust, the subcontractor
       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016   Page 11 of 15
       who employed Stanley, assumed “entire responsibility and liability for any and

       all damage and injury of any kind or nature whatsoever to all persons.” Id.

       Schust did not expect Shawnee to supervise, monitor, or be involved in Schust’s

       safety practices and it understood the Subcontract Agreement to assign sole

       responsibility to Schust to set safety standards for its employees and to monitor

       its employees’ compliance. Id.


[21]   The TCI contract is more like those in Helms and Shawnee, and it does not

       impose a duty of care toward the employees of TCI’s subcontractors because

       the contract terms do not “go beyond requiring that [TCI] merely supervise the

       work of its employees and subcontractors” as they did in Capitol. Rather, as

       noted above, TCI “recognizes the importance of” safety, and its Safety

       Representative is obliged to “supervise the implementation and monitoring” of

       safety matters. (App. at 71.) We accordingly affirm summary judgment for

       TCI. 6


[22]   Affirmed.


       Najam, J., concurs.


       Riley, J., dissents with separate opinion.




       6
         As we hold TCI had no duty of care toward employees of its subcontractors, we do not address Ryan’s
       argument TCI’s duty could not be delegated.

       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016                     Page 12 of 15
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Michael Ryan,                                             Court of Appeals Case No.
                                                                 49A02-1508-CT-1198
       Appellant-Plaintiff,

               v.

       TCI Architects/Engineers/
       Contractors, Inc. and BMH
       Enterprises, Inc., d/b/a Craft
       Mechanical,

       Appellee-Defendant.




       Riley, Judge dissenting.


[23]   I respectfully dissent from the majority’s conclusion that “the TCI contract does

       not impose a duty of care toward the employees of TCI’s subcontractors

       because the contract terms do not ‘go beyond requiring that [TCI] merely

       supervise the work of its employees and subcontractors[.]’” Slip op. p. 12. The

       majority’s decision is based on an analysis of the contractual language and its

       close resemblance to Helms, which, in turn, distinguishes it from Stumpf, Capitol,

       Perryman, and Harris.


[24]   By analogizing to Helms and distinguishing from Stumpf, the majority elevates

       form over substance in its interpretation of the contractual provisions regarding

       safety. Here, TCI “recognize[d] the importance of performing the Work in a


       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016               Page 13 of 15
safe manner so as to prevent damage, injury or loss to (i) all individuals at the

Site[.]” (Appellant’s App. p. 71). In this regard, TCI “assume[d] responsibility

for implementing and monitoring all safety precautions and programs related to

the performance of the Work.” (Appellant’s App. p. 71). To that end, TCI

“shall, prior to commencing construction, designate a Safety Representative . . .

to supervise the implementation and monitoring of all safety precautions and

programs related to the Work.” (Appellant’s App. p. 71). In connection with

this responsibility, the Safety Representative “shall make daily inspections of

the site and shall hold weekly safety meetings with [TCI’s] personnel,

Subcontractors and others as applicable.” (Appellant’s App. p. 71). TCI

contractually agreed to perform the work in accordance with the “Legal

Requirements,” which are defined as “all applicable federal, state, and local

laws, codes, ordinances, rules, regulations, orders and decrees of any

government or quasi-government[.]” (Appellant’s App. p. 68). Prior to

commencing work on the site, “[a]ll TCI employees, tradesmen and

subcontractors” had to “comply with . . . all OSHA and TCI guidelines” and

were required to report all injuries to the TCI Superintendent or Assistant

Superintendent. (Appellant’s App. p. 250). Moreover, during the construction

phase of the project, TCI committed that it “shall at all times exercise complete

and exclusive control over the means, methods, sequences and techniques of

construction.” (Appellant’s App. p. 70). Despite TCI’s assertion to the

contrary, in the Standard Form of Agreement, TCI agreed to “provide all

material, equipment, tools and labor necessary to complete the Work described



Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016   Page 14 of 15
       in and reasonably inferable from the Contract Documents.” (Appellant’s App.

       p. 53).


[25]   By assuming the responsibility of the implementation and monitoring of the safety

       programs, and the assignment of a Safety Representative, TCI affirmatively

       evinced an intent to assume a non-delegable duty of care, which placed it

       directly in line with Stumpf. See also Perryman, 628 N.E.2d at 1244 (where we

       found it important that the general contractor was responsible for reviewing the

       safety programs of the subcontractors); Moore v. Shawmut Woodworking & Supply,

       Inc., 788 F. Supp. 2d 821, 825 (S.D. Ind. 2011) (where the court found a duty of

       care based on, among other, the contractual provisions that “[t]he Contractor

       shall be solely responsible for and have control over the means, methods,

       techniques, sequences and procedures. . . of the Work []” and “[t]he Contractor

       shall be responsible for initiating, maintaining and supervising all safety

       precautions[.]”). Accordingly, I would reverse the trial court’s summary

       judgment in favor of TCI and grant Ryan’s partial summary judgment with

       respect to TCI.




       Court of Appeals of Indiana | Opinion 49A02-1508-CT-1198 | May 23, 2016   Page 15 of 15
