                                                                        FILED
                                                                   Jun 13 2017, 6:28 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher G. Stevenson                                   MESSER CONSTRUCTION
William E. Winingham                                       COMPANY
Wilson Kehoe Winingham LLC                                 Mark D. Gerth
Indianapolis, Indiana                                      Michael Wroblewski
                                                           Louis J. Britton
                                                           Kightlinger & Gray, LLP
                                                           Indianapolis, Indiana
                                                           ATTORNEYS FOR APPELLEE PERI
                                                           FORMWORK SYSTEMS, INC.
                                                           Scott S. Morrisson
                                                           Blake P. Holler
                                                           Krieg DeVault LLP
                                                           Carmel, Indiana
                                                           Libby Yin Goodknight
                                                           Krieg DeVault LLP
                                                           Indianapolis, Indiana
                                                           Michael J. Halaiko
                                                           Jonathan A. Singer
                                                           Miles & Stockbridge, P.C.
                                                           Baltimore, Maryland



                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017                    Page 1 of 18
      Mark Gleaves,                                              June 13, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A02-1609-CT-2140
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Messer Construction Company                                The Honorable James A. Joven,
      and PERI Formwork Systems,                                 Judge
      Inc.,                                                      Trial Court Cause No.
      Appellees-Defendants                                       49D13-1211-CT-44519




      Baker, Judge.


[1]   On October 9, 2012, Mark Gleaves, a construction worker employed by

      Whittenberg Construction (“Whittenberg”), was working at the construction

      site of the Indiana University Neuroscience Building when a sixteen-foot-long

      2x4 lumber infill struck him in the head, inflicting serious injury. Whittenberg

      was a concrete contractor; Messer Construction Company (“Messer”) was the

      construction manager of the construction project; and PERI Formwork

      Systems, Inc. (“PERI”), was the manufacturer of the formwork Whittenberg

      was using to form the walls of the building. Gleaves sued Messer, alleging that

      it had assumed a duty of reasonable care for his safety on the jobsite and that it

      breached that duty, and PERI, alleging that it failed to provide adequate

      warnings and instructions to end users and that it was not an open and obvious

      danger that lumber infills could eject during the removal process and strike a

      person standing a safe distance away. The trial court granted Messer’s motion

      for summary judgment, finding that Messer did not owe a duty to Gleaves, and


      Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017               Page 2 of 18
      PERI’s motion for summary judgment, finding that because the hazard of this

      construction process is open and obvious, PERI did not have a duty to warn

      users about the dangers in the use of PERI forms. Gleaves now appeals.

      Finding no error, we affirm.


                                                      Facts     1




                                                   The Accident


[2]   Messer contracted with Indiana University (“IU” or “Owner”) for construction

      management services for the construction of the Neuroscience Building in

      Indianapolis. Whittenberg also contracted directly with IU to perform concrete

      work on the building. Whittenberg has performed concrete construction work

      using concrete formwork at more than one hundred jobsites, and it has used

      PERI-brand formwork in nearly all of its jobsites over the last fifteen years.


[3]   PERI manufactures and supplies formwork systems for concrete contractors’

      use in forming new concrete structures until the structures harden and become

      self-supporting. PERI manufactured and supplied the formwork system that

      Whittenberg used in this construction project. A PERI form is used to pour

      concrete walls; the system includes the use of infills to bridge gaps in the

      formwork. To set PERI forms, large panels are used first; progressively smaller




      1
       We heard oral argument on Thursday, May 18, 2017, at the Monroe County Courthouse. We thank the
      Indiana State Bar Association for organizing the oral argument. We also thank counsel for their informative
      and engaging oral advocacy and subsequent discussion with the members of the bar association’s Leadership
      Development Academy.

      Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017                       Page 3 of 18
      sized panels are then used until the gap is small enough to fill with a lumber

      infill. Whittenberg supplied the lumber and materials for the infills, and

      Whittenberg’s carpenters made the infills on the construction site. PERI does

      not track the construction sites at which its forms are used; at this construction

      site, Whittenberg controlled the use of the PERI forms, including their location,

      installation, and removal.


[4]   Gleaves’s general duties at the construction site involved cleaning up after the

      carpenters, cleaning concrete forms, assisting with concrete pours, and

      retrieving discarded lumber infills used by Whittenberg. Gleaves had prior

      experience working on forming concrete walls, but he had not worked with

      PERI concrete forms before this construction project. When Gleaves began

      working on the construction project, Whittenberg had him watch a video about

      PERI forms. Whittenberg provided Gleaves with personal protection

      equipment, including a safety harness and a hard hat; it also held weekly and

      monthly safety meetings for its employees.


[5]   On October 9, 2012, a crane was wrecking a section of formwork away from a

      concrete wall. “Wrecking” is a term of art in the concrete construction industry

      that involves the dismantling of the formwork used to form a concrete structure

      after the concrete has cured. Part of the wrecking process involved Whittenberg

      employees pushing to the ground unsecured lumber infills before removing the

      PERI forms with overhead cranes and taking them to another area.




      Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 4 of 18
[6]   Gleaves was working in a trench at the construction site patching tie holes in

      the concrete walls and picking up material in the trench. As the formwork was

      pulled up and away by the crane, a sixteen-foot 2x4 lumber infill was ejected

      from the form being lifted and struck Gleaves in the head while he was in the

      trench. No audible warning signal was given before the crane lifted the form

      that struck Gleaves. Prior to the accident, Gleaves did not see the crew above

      him wrecking the form that led to the accident.


                                                  The Contracts


[7]   Under Messer’s contract with IU, Messer’s duties were owed to IU and not to

      any contractors or other third parties. The contract included the following

      provisions about safety at the construction site:


           Messer was to provide on-site administration of the construction
            contract.
           Messer was to use its best efforts to obtain satisfactory performance from
            each contractor, to recommend courses of action to IU when
            requirements of the construction contract were not being fulfilled, to
            determine that the work of each contractor was being performed
            according to the requirements of the construction contract, and to notify
            IU and the contractor of defects and deficiencies in the work.
           With respect to each contractor’s own work, Messer did not have control
            over or charge of nor was responsible for construction means, methods,
            techniques, or safety precautions and programs in connection with the
            work of each contractor because these things were solely the contractor’s
            responsibility under its contract.
           Messer did not have control over or charge of acts or omissions of the
            contractors or any other person performing work not directly employed
            by Messer.


      Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 5 of 18
           Messer was required to provide and maintain an effective safety
            program. Each contractor was required to conform to Messer’s Safety,
            Health and Environmental Program and its Safety4Site Program.
           Every worker was required to attend a safety orientation before working
            on the site. The orientation was to take place in Messer’s trailer.
           If a contractor did not re-erect a barricade or safety device after the
            completion of a work activity, Messer would perform the work.
           Upon notification of a safety deficiency, the contractor responsible was
            to use any and all means necessary to correct the situation immediately.
            Messer could remove the contractor’s employee or employees if they
            failed to address the situation.

      Messer’s App. Vol. II p. 11, 13, 16-17, 172.

[8]   The American Institute of Architects Document 232, which governed general

      conditions for construction, stated that Messer was to be responsible for the

      oversight of the health safety programs of the contractors; each contractor was

      to remain the controlling employer as to its employees and was to comply with

      the applicable safety laws; and Messer’s responsibility for review of safety

      precautions did not extend to direct control over or charge of the acts or

      omissions of the contractors or their employees, nor did it constitute approval of

      safety precautions or any construction means, methods, or procedures. The

      AIA Document A232 also provided that Whittenberg was responsible for

      initiating, maintaining, and supervising all safety precautions and programs

      connected with the performance of its contract. Id. at 142.


[9]   The Messer Safety4Site program was established by Messer in order to reduce

      unsafe conditions that could cause accidents and applied to all contractors. The

      Safety4Site program provided that:

      Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 6 of 18
            Each contractor was to conduct a meeting before every work shift to
             discuss the work to be done during the shift and to establish a safe plan of
             action to accomplish the work. All employees of the contractor were to
             attend.
            When there was a safety violation, Messer was to remove the
             contractor’s employee from the site for the rest of the day.
            It was not Messer’s intention to interfere in the contractor’s relationship
             with its employees. Messer reserved the right to take immediate action
             to rectify unsafe situations and to direct an employee of a contractor to
             leave the site if the contractor’s management personnel were not on site.
            Messer did not assume any responsibility to a contractor or its employees
             for supervising or monitoring the safety precautions. Messer did not
             assume any duty to detect and require correction of violations. Messer
             was allowed but not required to make periodic inspections of the
             construction site.
            Sanctions provided under Safety4Site for individuals and contractors are
             not exclusive and Messer reserved the right to pursue other remedies.

           Id. at 155-57.

                                             The Safety Instructions


[10]   PERI includes safety instructions in the assembly instruction manual that

       comes with the formwork. PERI’s public website provides safety instructions

       and product information. Its safety instructions state that the operator must

       ensure that the instructions are available to the users, and that all workers who

       work with the product must be familiar with the safety instructions. The

       instructions advise that failing to adhere to assembly and safety instructions

       could lead to accidents; that the contractor has to provide safe working areas for

       employees and clearly mark and cordon off areas of risk; that all loose parts had

       to be removed or secured during the lifting and moving procedure; and that


       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 7 of 18
       contractors must not tear off the formwork panels with the crane. PERI’s App.

       Vol. II p. 53-54, 70, 113.


[11]   Whittenberg’s 2012 Safety Organizational Plan governed its employees at the

       construction site. Its plan required employees to take precautions to prevent

       access to danger zones in which an overhead hazard was present. It provided

       that barricades must be used to prevent access into an unsafe area, such as

       where objects could fall from overhead; when overhead cranes were used, the

       swing radius must be marked or barricaded; employees must not stand under

       loads when feasible; and the crane operator must signal with the horn when he

       must fly a load over the heads of employees as a warning. Id. at 17, 23-24.


                                                Procedural History


[12]   On November 16, 2012, Gleaves filed a complaint against Messer and PERI.

       On November 13, 2014, he filed a motion for partial summary judgment

       against Messer. On December 1, 2014, PERI filed a motion for summary

       judgment, arguing that it did not owe a duty to warn and that its product did

       not include lumber infills. On December 2, 2014, Messer filed a motion for

       summary judgment, arguing that it did not owe a duty to Gleaves.


[13]   On March 5, 2015, a hearing took place during which all three parties presented

       argument. On August 26, 2016, the trial court granted summary judgment in

       favor of Messer and denied Gleaves’s motion for partial summary judgment.

       On August 29, 2016, the trial court granted summary judgment in favor of

       PERI. Gleaves now appeals.

       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 8 of 18
                                     Discussion and Decision
                                        I.      Standard of Review
[14]   Our standard of review on summary judgment is well established:

               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C )).
               “A fact is ‘material’ if its resolution would affect the outcome of
               the case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


                                                    II. PERI
[15]   Gleaves alleges that PERI failed to provide adequate warnings and instructions

       to end users and that it was not an open and obvious danger that lumber infills

       could eject during removal and strike a person. Specifically, Gleaves asserts

       that PERI knew that using excessive force to pry forms loose from poured

       concrete walls could lead to injury, but it failed to provide any instructions or

       warnings concerning the potential for loose pieces associated with its formwork

       system to eject out and cause injury.


[16]   Our Court has previously stated:

       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017    Page 9 of 18
               When a defendant manufacturer in a negligence/products
               liability case moves for summary judgment, it has the burden to
               show the uncontroverted nonexistence of at least one of the
               elements essential to plaintiff's case. The reviewing court will
               affirm the grant of summary judgment on any legal basis
               supported by the designated evidentiary material. . . .


               Additionally, summary judgment is appropriately entered in
               favor of a defendant manufacturer on the affirmative defense of
               incurred risk where the evidence is without conflict and the sole
               inference to be drawn is that the plaintiff knew and appreciated
               the risk, but nevertheless accepted it voluntarily.


       Cole v. Lantis Corp., 714 N.E.2d 194, 198 (Ind. Ct. App. 1999). The question of

       whether a particular plaintiff’s claim is barred under the open and obvious rule

       cannot always be resolved by the court as a matter of law. Id. at 199. When the

       facts or the reasonable inferences to be drawn therefrom are in conflict, the

       open and obvious nature of the danger is a question of fact for the jury. Id.


[17]   In addition, our Court has adopted the following standard from the Seventh

       Circuit Court of Appeals:


               [w]hether a danger is open and obvious depends not just on what
               people can see with their eyes but also on what they know and
               believe about what they see. In particular, if people generally
               believe that there is a danger associated with the use of a product,
               but that there is a safe way to use it, any danger there may be in
               using the product in the way generally believed to be safe is not
               open and obvious.


       Id. (citing Corbin v. Coleco Indus., Inc., 748 F.2d 411, 417 (7th Cir. 1984)).


       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017    Page 10 of 18
[18]   Gleaves goes to great lengths to argue that the lumber infills were part of

       PERI’s product design because the infills were a necessary component of the

       formwork system and because PERI provided instructions for the use of lumber

       infills in its assembly instructions and referenced them in its parts catalog.

       Gleaves relies on Progressive Insurance Co. v. General Motors Corp., 749 N.E.2d 484

       (Ind. 2001), in which a vehicle owner sued a manufacturer for damage to the

       vehicle sustained when the vehicle caught fire. In discussing the production of

       vehicles, our Supreme Court noted that “it stretches ordinary usage to describe

       each component as a separate ‘product’ of the manufacturer who often

       assembles parts from various sources to produce its ‘product.’” Id. at 490.


[19]   We find the present case easily distinguishable from Progressive Insurance,

       however, because unlike a car manufacturer that has contact with various parts

       of the vehicle during the production of the vehicle, even when the parts came

       from other sources, here, PERI had no connection to the lumber infills that

       were used at the construction site. Whittenberg supplied the lumber and

       materials for the infills, and Whittenberg employees made the infills. The mere

       fact that the lumber infill was used in conjunction with PERI’s formwork does

       not mean that the infill was part of PERI’s product or that PERI should be

       liable for any use or misuse of it.


[20]   Moreover, Gleaves, by his own admission, acknowledged that the danger and

       risk of being hit by a form during wrecking was open and obvious. During his

       deposition, Gleaves testified that he was aware that:



       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 11 of 18
            PERI forms are dangerous if they fall because they could potentially fall
             on him;
            all wall forms must be lifted by a crane, which presents an overhead
             danger to people on the ground;
            all concrete forms are heavy and could fall on a person, whether the
             forms are on the ground or being lifted by a crane;
            if the lumber infill is going to be pushed off the wall, he should be out of
             the way;
            a lumber infill is something that can fall and be an overhead hazard;
            an unsecured wood form can fall;
            depending on the size and height of the wood form, the safe area would
             be far enough away that, no matter the size, if the form fell, it would not
             hit a person;
            the forms being wrecked at the time of the accident were approximately
             between 20-25 feet, and a safe zone would be more than 20-25 feet away;
             and
            he did not need anyone to tell him to get out of harm’s way when
             wrecking work occurred, as he would leave the area when he knew such
             work was to occur.

       PERI App. Vol. II p. 26-27, 29-30, 34-35, 38, 40. This testimony shows that

       Gleaves knew and understood the danger associated with the work he was

       doing, the potential for injury from any hazard formed during the wrecking

       process, and the need to move to a safe area when wrecking work was being

       performed. Accordingly, the trial court did not err in finding that the danger

       was open and obvious or in granting summary judgment for PERI.


                                                 III. Messer
[21]   Gleaves argues that the trial court erred in granting Messer’s motion for

       summary judgment because Messer assumed a duty when it went beyond the



       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 12 of 18
       scope of its contract2 and took specific controlling safety actions over the

       hazards that led to the accident.


[22]   According to Gleaves, Messer assumed a duty when it required Whittenberg to

       sound an audible warning when lifting loads over or near other workers on the

       construction site; talked directly to Whittenberg’s crane operators about flying

       loads over other workers; pulled Whittenberg’s safety representative from an

       unsafe trench and sent him and other Whittenberg employees home for the day;

       sent workers home for three days after they were discovered working near an

       unsafe trench; and allowed Whittenberg to operate without the required full-

       time safety representative on the construction site.


[23]   We find Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind. 2012),

       controlling in the present case. In Hunt, Hunt Construction Group, Inc., had

       entered into a contract with the Stadium Authority to act as the construction

       manager for the construction of a football stadium; Hunt did not have a

       contractual relationship with any other contractor on the project. Id. at 224.

       After an employee of another contractor was injured on the job and filed suit

       against Hunt, our Supreme Court found that Hunt did not owe the employee a

       legal duty of care either through its contractual obligations or through its




       2
         We note that our Supreme Court recently decided a case in which the Court found that the general
       contractor of a construction project assumed a non-delegable duty of care related to worksite safety for the
       subcontractor’s employees. See Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908 (Ind. 2017).
       We find Ryan easily distinguishable. In Ryan, the general contractor assumed a duty of care through its
       contractual obligations to the business entity that hired it; here, Gleaves does not argue that Messer’s contract
       created a duty, but rather that Messer went beyond the scope of its contract to assume a duty.

       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017                            Page 13 of 18
       actions or conduct. Id. at 229, 231. Our Supreme Court held “that for a

       construction manager not otherwise obligated by contract to provide jobsite

       safety to assume a legal duty of care for jobsite-employee safety, the

       construction manager must undertake specific supervisory responsibilities

       beyond those set forth in the original construction documents.” Id. at 230.


[24]   Similar to Hunt, Messer’s actions regarding safety at the construction site fell

       within the scope of its contract with IU. Gleaves contends that Messer assumed

       a duty when it required Whittenberg to sound an audible warning when lifting

       loads at the construction site and when Messer employees talked directly to

       Whittenberg crane operators about not flying loads over other workers.

       Whittenberg’s contract with IU stated that “[p]ersonnel shall be kept out from

       under any load being lifted.” Messer’s App. Vol. III p. 31. Gleaves testified

       that Whittenberg’s rules required the crane operator to blow a horn before

       lifting heavy objects in order to warn others to move into a safe area out of the

       way. Id. at 67. Under Messer’s contract with IU, Messer was responsible for

       the oversight of the safety programs of each contractor, allowed to make safety

       inspections and issue violations if work was being peformed in an unsafe

       manner, and enabled to take immediate action to fix unsafe situations.

       Therefore, any actions Messer took regarding the use or failure to use an

       audible warning to workers or to stop the crane operators from flying loads over

       other workers in order to maintain a safe construction site fell within its

       contractual obligations to IU.




       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 14 of 18
[25]   Next, Gleaves contends that Messer assumed a duty when on one occasion it

       pulled Whittenberg’s safety representative from an unsafe trench and sent him

       and other workers home for the day and on another occasion sent workers

       home for three days when they were discovered working near an unsafe trench.

       Safety4Site provided that Messer could remove workers who were working in

       unsafe conditions from the construction site for the rest of the working day and

       the next working day if the violation occurred in the second half of the worker’s

       shift. Messer’s contract permitted it to modify its rules regarding personnel

       safety. Accordingly, Messer’s actions were within the scope of its contractual

       obligations to IU.


[26]   Gleaves further contends that Messer assumed a duty when it allowed

       Whittenberg to operate without the required full-time safety representative on

       the construction site. Whittenberg employed a full-time safety manager; its

       project manager served as the safety person in the safety manager’s absence.

       Prior to Gleaves’s accident, Whittenberg had indicated to Messer in an email

       that Whittenberg wanted to stop providing a full-time safety person at the

       construction site. Messer had agreed that, based on Whittenberg’s

       performance, October 9, 2012, could be the last day that Whittenberg would

       need a full-time safety person at the construction site if Whittenberg resolved

       issues that Messer had observed, complied with its contracts, and corrected its

       safety concerns. Whittenberg’s safety manager was present on October 9, 2012,

       the day of Gleaves’s accident.




       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 15 of 18
[27]   Moreover, Safety4Site provided that when a contractor had been issued two

       safety violations, the contractor was “required to provide a dedicated,

       competent safety person to the project to supervise” the daily meetings and

       work of the contractor and that the safety person must be at the construction

       site whenever the contractor was working until the contractor “has

       demonstrated to Messer’s satisfaction that a significant improvement with [its]

       safety performance has occurred.” Messer’s App. Vol. II p. 156. Because

       Whittenberg had already received two safety violations, under Safety4Site,

       Messer’s contract allowed it to require Whittenberg to provide a safety person

       at the construction site whenever Whittenberg was performing work until

       Messer determined that Whittenberg’s safety performance had significantly

       improved. Therefore, Messer was acting within the scope of its contract when

       it considered allowing Whittenberg to stop providing a safety representative at

       the construction site.


[28]   Lastly, Gleaves contends that Messer assumed a duty through its general

       actions, including when Messer’s project manager and safety manager walked

       through the construction site and observed safety conditions, and when Messer

       coordinated a safety orientation presentation for all workers. As for Messer’s

       project and safety manager making observations through the construction site,

       Messer’s contract required it to use its best efforts to obtain satisfactory

       performance from each contractor, to determine that the work of each

       contractor was being performed according to the requirements of the

       construction contract, and to notify a contract of defects and deficiencies.


       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 16 of 18
       Messer was to use its best efforts to obtain satisfactory performance from each

       contractor, to recommend courses of action to IU when requirements of the

       construction contract were not being fulfilled, to determine that the work of

       each contractor was being performed according to the requirements of the

       construction contract, and to notify IU and the contractor of defects and

       deficiencies in the work. Further, Safety4Site provided that Messer had the

       ability to make periodic inspections of the project site and would issue

       violations to contractors if warranted. Messer’s actions fell within the scope of

       its contract and it did not assume a duty by undertaking them. As for the safety

       orientation presentation, Messer’s contract stated that “each and every worker

       must attend a mandatory 1hr safety orientation session prior to starting work on

       site.” Id. at 17. Messer was contractually obligated to perform this service and

       did not assume a duty by doing so.


[29]   We acknowledge the tragic circumstances of this case, but to hold Messer liable

       for Gleaves’s injury would create a perverse incentive for construction

       managers to refrain from taking a role in ensuring safe working conditions at

       construction sites. Messer’s actions and conduct constituted its fulfillment of its

       contractual obligations to IU; Messer did not undertake supervisory

       responsibilities beyond those obligations, and it did not assume a duty to

       Gleaves through its actions or conduct. Therefore, the trial court did not err by

       granting summary judgment in Messer’s favor.




       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 17 of 18
[30]   The judgment of the trial court is affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1609-CT-2140 | June 13, 2017   Page 18 of 18
