Indiana Contractor Duty of Care for the Safety of Employees and Subcontract Employees and Liability Resulting from Employee and Subcontract Employee NegligenceBy: Jeremy L. Fetty

A recent Indiana Court of Appeals decision held that both a contract between a landowner and a general contractor evinced an intent on the part of the general contractor to assume a duty of care for the safety of its employees and subcontractors on the work site and that such duty was non-delegable. In Capitol Const. Services, Inc., after a subcontract employee fell approximately fifteen feet from a ladder while on the jobsite and died, the general contractor (Capitol) appealed the trial court’s grant of summary judgment to Gray, arguing that it did not assume a duty of care for the safety of subcontract employees and that such a duty was delegable. Capitol Const. Services, Inc. v. Gray, 959 N.E.2d 294, 296-97 (Ind. Ct. App. 2011). Relying on Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871 (Ind. Ct. App. 2007) and Harris v. Kettelhut Constr., 468 N.E. 2d. 1069 (Ind. Ct. App. 1984), the court found that a contract which provides and requires the contractor to have specific safety precautions at the jobsite, including personal fall arrest systems, safety net systems, or guardrail systems, for employees or subcontractors performing construction work in excess of six feet above a lower level accords the contractor a duty of care for the safety of subcontract employees.

Further, the court reiterated that the duties associated with Indiana’s five exceptions to the general rule that an employer does not have a duty to assure a safe workplace and will not be held liable for the negligence of an independent contractor were non-delegable, and a general contractor will be held liable for the negligence of a subcontractor, because the responsibilities are deemed so important to the community that the general contractor should not be permitted to transfer the duties to another. In rejecting Capitol’s reliance on Vaughn v. Daniels Co., where the Vaughn court found there was no contractual duty on the general contractor for the negligence of its subcontractors, the court stated this case did not apply, as Vaughn did not involve a contractual relationship between the parties. Id. at 307-08. Moreover, the court asserted that the Vaughn Court did not mean to abrogate the duties pursuant to the five exceptions because that case did not involve a contract.

Therefore, when a contract contains language pertaining to the safety of employees and subcontractors, OSHA requirements, and jobsite safety, the general contractor has a duty of care for the safety of its employees and subcontractors and will not be permitted to delegate such safety duties to a subcontractor.

Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.