                                                                          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.
       Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020    Page 13 of 21
       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

Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020     Page 17 of 21
        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.




       Court of Appeals of Indiana | Opinion 18A-CT-1446 | August 24, 2020   Page 21 of 21
