Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                             Apr 07 2014, 9:19 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

TIMOTHY F. DEVEREUX                                         SHERI BRADTKE MCNEIL
LANCE R. LADENDORF                                          AMI T. ANDERSON
Ladendorf & Ladendorf                                       Kopka, Pinkus, Dolin & Eads, PC
Indianapolis, Indiana                                       Crown Point, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRISTIAN DAILEY,                                    )
                                                     )
       Appellant-Plaintiff,                          )
                                                     )
               vs.                                   )     No. 49A02-1310-CT-906
                                                     )
DAVIS BUILDING GROUP,                                )
                                                     )
       Appellee-Defendant.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable David A. Shaheed, Judge
                             Cause No. 49D01-1107-CT-26491


                                           April 7, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                      Case Summary

       Christian L. Dailey (“Dailey”) appeals the trial court’s order granting Davis Building

Group, LLC’s (“Davis”) motion for summary judgment on his negligence claim.

       We affirm.

                                            Issue

       Dailey raises a single question for our review: Is summary judgment appropriate

where the designated evidence does not disclose an exception to the general rule that the

principal is not responsible for the negligence of an independent contractor.

                              Facts and Procedural History

       In February 2011, Dailey was employed as a roofer for RMR Construction (“RMR”).

RMR was a subcontractor for Davis, which was building houses in a residential

neighborhood in Indianapolis. Davis had contracted RMR to perform certain roofing work

on several of these homes.

       On the morning of February 12, 2011, Dailey went onto the roof of one of the houses

for which RMR had been retained to provide roofing work. Ice had accumulated in a few

places on the roof, and Dailey was chipping ice from an unguttered valley on the roof. The

ice slid out from under Dailey; he fell from the roof of the house to the ground—a distance of

around twenty to twenty-five feet—and was injured. Neither RMR nor Davis had issued

Dailey a safety harness or other fall-prevention equipment.

       On July 7, 2011, Dailey filed a complaint for damages against Davis. Dailey alleged

that Davis was negligent in failing to provide a safe worksite, in failing to establish and


                                              2
implement a safety protocol, failing to inspect the worksite for hazards and safety code

violations, failing to correct hazards and safety code violations, and in failing to provide

safety devices, which negligence resulted in Dailey’s injuries.

       On May 1, 2013, Davis filed its motion for summary judgment. In the motion, Davis

contended that it did not owe any duty of care to Dailey under either a contractual or

assumption of duty theory, and it was thus entitled to judgment as a matter of law. Dailey

timely responded to the motion.

       On August 15, 2013, the trial court conducted a hearing on Davis’s motion for

summary judgment. At the conclusion of the hearing, the trial court took the motion under

advisement.

       On September 24, 2013, the trial court entered summary judgment in favor of Davis.

       This appeal ensued.

                                  Discussion and Decision

       Dailey appeals the trial court’s entry of summary judgment. We review an appeal

from a motion for summary judgment under the same standard as the trial court uses to

decide such motions. Sheehan Const. Co., Inc. v. Continental Cas. Co., 938 N.E.2d 685, 688

(Ind. 2010). Summary judgment is appropriate only when the evidence shows there is no

question of material fact and the movant is entitled to judgment as a matter of law. Ind. Trial

Rule 56(C); Sheehan, 938 N.E.2d at 688. All facts and reasonable inferences to be drawn

therefrom are construed to favor the non-movant. Sheehan, 938 N.E.2d at 688. Review of a




                                              3
motion for summary judgment is confined to those evidentiary materials designated to the

trial court. Id.

         An order granting summary judgment is clothed with a presumption of validity.

Gagan v. Yast, 966 N.E.2d 177, 184 (Ind. Ct. App. 2012), trans. denied. A grant of summary

judgment may be affirmed upon any theory supported by the designated materials. Spudich

v. NIPSCO, 745 N.E.2d 281, 290 (Ind. Ct. App. 2001), trans. denied. However, we are

mindful that we must carefully review the trial court’s decision to ensure the non-movant was

not improperly denied his day in court. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.

2003).

         Summary judgment is rarely appropriate in negligence cases. Kennedy v. Guess, Inc.,

806 N.E.2d 776, 783 (Ind. 2004). In particular, such issues as negligence, contributory

negligence, causation, and reasonable care are often properly reserved for a trier of fact.

Florio v. Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007), trans. denied. However,

questions of law, such as whether a defendant had a duty of care as to a plaintiff, may be

appropriate for summary judgment. See, e.g., Kroger Co. v Plonski, 930 N.E.2d 1, 9 (Ind.

2010); Florio, 875 N.E.2d at 256.

         To prevail on a claim of negligence, a plaintiff must show: (1) that the defendant owed

the plaintiff a duty of care; (2) that the defendant breached that duty by allowing conduct to

fall below the applicable standard of care; and (3) the plaintiff’s injury was compensable and

proximately caused by the defendant’s breach of duty. Kroger, 930 N.E.2d at 6. Davis

moved for summary judgment on the question of duty, and Dailey appeals that decision.


                                                4
        Dailey contends that Davis had a non-delegable duty of care as to his safety, and the

trial court thus erred when it granted Davis’s motion for summary judgment on that matter.1

“In Indiana, the long-standing general rule has been that a principal is not liable for the

negligence of an independent contractor.” Bagley v. Insight Commc’ns. Co., L.P., 658

N.E.2d 584, 586 (Ind. 1995). There are five common law-based exceptions to this general

rule, each of which finds its basis in public policy concerns that preclude delegation of duty

from a principal to an independent contractor, because the principal’s “responsibilities are

deemed ‘so important to the community’ that the employer should not be permitted to

transfer these duties to another.” Id. at 587. A principal cannot delegate its duty of care as to

a third party where: (1) the contract requires performance of intrinsically dangerous work;

(2) the principal is by law or contract charged with performing the specific duty alleged to

have been breached; (3) the act will create a nuisance; (4) the act to be performed will

probably cause injury to others unless precautions are taken; and (5) the act to be performed

is illegal. Vaughn v. Daniels Co. (W. Va.), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006).

        Dailey argues that the second of these exceptions, that Davis had a non-delegable duty

as a matter of contract, applies in this case and that there was at least a question of material

fact concerning whether Davis had a non-delegable duty of care. This exception allows for

an “actionable” incidence of negligence when “a contract affirmatively evinces intent to

assume a duty of care.” Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876-77 (Ind. Ct.

App. 2007), trans. denied. Dailey contends that the language of a Davis-drafted Trade

1
 Dailey argues in his briefs before this Court that he, and not Davis, was entitled to summary judgment on the
question of duty of care.

                                                      5
Contractor Agreement (“TCA”) contains language that creates a contractual duty of care, and

thus he, not Davis, was entitled to summary judgment on the duty-of-care question. In the

alternative, Dailey argues that there is a question of material fact as to whether Davis had a

non-delegable duty of care under its contract with RMR, and thus the trial court’s entry of

summary judgment was improvident. Dailey does not, however, contend that Davis or any of

its agents acted outside the scope of the agreement with RMR in such a manner as to

gratuitously or voluntarily assume a duty of care. See Hunt Const. Group, Inc. v. Garrett,

964 N.E.2d 222, 225 (Ind. 2012) (observing that a construction manager owes a worker a

duty of care for safety when that duty is imposed by contract or when such duty is assumed

gratuitously or voluntarily) (citing with approval Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212

(Ind. Ct. App. 1983)).

        In support of the proposition that Davis had a non-delegable duty of care for his

safety, Dailey directs our attention to the language of the TCA.2 Dailey contends that the

TCA governed the relationship between Davis and RMR, and that the terms of the TCA as

they pertain to RMR’s obligations to Davis regarding workplace safety matters also

established Davis’s duty of care towards him. Davis denies that the TCA had any bearing

upon the relationship between itself and RMR in this case because there is no evidence of an

executed TCA between Davis and RMR, and that as a result it had no contractually-based

safety obligations toward Dailey. Dailey responds that even if there was no TCA binding




2
 Dailey obtained copies of the TCA in the discovery process. None of these bear RMR’s name or the name of
any individual alleged to be an agent of RMR, nor are the documents signed by anyone from RMR.

                                                   6
RMR and Davis with respect to the job Dailey was doing when he fell, the TCA’s provisions

are indicative of the general course of dealings between RMR and Davis and thus apply here.

       When construing a contract, our primary task is to give effect to the intent of the

parties. Ryan v. Lawyers Title Ins. Co, 959 N.E.2d 870, 876 (Ind. Ct. App. 2011). Where

there is no ambiguity, unambiguous language of a contract is conclusive upon the parties to

the contract and upon the courts. Id. We interpret a contract in a manner “that harmonizes

all the various parts so that no provision is deemed to conflict with, to be repugnant to, or to

neutralize any other provision.” Id. We construe specific provisions to control over general

provisions. Id.

       Here, Dailey directs us to several provisions of the TCA that, he argues, imposed a

non-delegable duty of care on Davis. Several of these do not, by their plain meaning, have

any bearing upon safety questions. For example, Dailey points to Davis’s authority to cancel

purchase orders and remove subcontractors if the amount of work available exceeds the

subcontractor’s capacity, and notes that Davis reserves a right under the TCA to approve the

subcontractor’s designated job foreman. Yet these provisions have no specific bearing on

safety matters, and place duties upon the subcontractor, not upon Davis.

       More on-point are provisions in the TCA that provide Davis the right to assess fines

against subcontractors for violations of certain safety requirements, including those

associated with safety regulations promulgated by the U.S. Occupational Safety and Health

Administration (“OSHA”). Yet our review of the provisions of the TCA reveals the

following language:


                                               7
      Trade Contractor shall supervise and direct the Work using Trade Contractor’s
      best efforts and skill. Trade contractor shall be responsible to the Owner for
      the acts and omissions of Trade Contractor’s agents, sub-agents and
      employees. Trade Contractor shall take all necessary precautions for the safety
      of employees and protection of the Work and of adjoining property, and shall
      comply with all applicable provisions of Federal, state and local safety laws
      and building codes, including, without limitation, the Occupations Health and
      Safety Act of 1970, as amended, and Owner’s insurance carriers’ requirements
      to prevent accidents, injury to persons, loss of life and damage to property.
      Trade Contractor shall adopt and enforce a written safety program and shall
      provide Owner at Owner’s request with a copy of that program.

(App’x at 129, emphasis added.) The TCA goes on to assign to the Trade Contractor—that

is, the subcontractor—numerous duties regarding the establishment, monitoring, and

compliance with a safety plan.

      The TCA also provides for numerous matters of insurance and indemnity. Crucially,

the indemnity clauses provide:

      To the fullest extent permitted by law, Trade Contractor shall indemnify,
      defend and hold harmless Owner and Owner’s respective officers, directors,
      employees, affiliates and related parties from and against any and all claims for
      bodily injury or death, … damages, actions, causes of action, suits, losses,
      judgments, obligations and any liabilities … which arise or are in any way
      connected with the Work performed … or services provided under this
      Agreement by Trade Contractor or its agents, sub-agents or employees. These
      indemnity and defense obligations shall apply to any acts or omissions or
      negligence of indemnified parties, whether active or passive … whether or not
      said claims arise out of the concurrent act, omission or negligence of the
      indemnified parties, whether active or passive. However, Trade Contractor
      shall not be obligated to indemnify or defend Owner for claims found to be
      due to the sole negligence or willful misconduct of indemnified parties.

(App’x at 131.) Thus, to the extent the TCA provides any affirmative duty upon the parties

for safety policies and practices, those duties are expressly imposed upon the Trade

Contractor—here, RMR—and not Davis.


                                             8
       Further, based upon the deposition testimony designated at summary judgment, we

cannot conclude that there is any question of material fact as to whether the conduct of

Denny Branham (“Branham”), Davis’s construction manager, imposed a contractually-based

duty of care upon Davis. Branham acknowledged that he was the individual Davis identified

in a set of interrogatories as most knowledgeable about safety issues. However, Branham

testified that he was unaware of any safety programs at Davis at the time of Dailey’s injuries.

He further testified that he had not, prior to Dailey’s injuries, imposed any of the fines

associated with workplace safety violations, and he had not conducted any safety training or

imposed any jobsite safety requirements on Davis’s behalf or otherwise. The extent of

Branham’s safety-related activity was limited to, while present at a jobsite, instructing

contractors at jobsites to avoid using saws with improperly-repaired extension cables and to

warn individuals to use safety equipment.

       Even assuming the duties of care expressed in the TCA were applicable, and

construing the designated materials in a light most favorable to Dailey, we cannot conclude

that there was any question of material fact as to Davis’s duty or lack of it toward Dailey, nor

can we conclude that Davis had a legally-prescribed contractual duty for Davis’s safety. We

accordingly affirm the trial court’s entry of summary judgment in favor of Davis.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




                                               9
