In Indiana, construction firms engaged as construction managers must navigate many pitfalls and take precautions to avoid liability for workplace injuries outside their control. A construction management contractor may be liable to the employee of a subcontractor for workplace injuries where the construction management contract imposes a duty for safety or the construction manager assumes such a duty through its actions.
In Indiana, the rights and remedies of an employee against their employer for workplace injuries are governed by the worker’s compensation system. However, the injured person is free to pursue other legal remedies, including litigation, against individuals or entities other than their employer who may be liable for their injuries, including general contractors, other subcontractors and construction management firms.
The Indiana Supreme Court recently addressed the issue of when, and under what circumstances, a construction management firm may be liable for jobsite injuries sustained by an employee of a subcontractor. In Hunt Construction Group, Inc. et al v. Garrett, Cause No. 49S02-1106-CT-365, March 22, 2012, the Supreme Court held that a construction management firm was not liable for the injuries suffered by an employee of a subcontractor where the construction management firm did not contract to provide jobsite safety services nor assumed such a duty through its actions related to jobsite safety. In the Hunt Construction Group case, Hunt Construction Group was contracted by the local Stadium Authority to serve as the “construction manager” for the construction of Lucas Oil Stadium in Indianapolis. Hunt was contracted to provide comprehensive construction management services, including management of certain safety-related tasks. However, Hunt’s contract, to which only Hunt and the Stadium Authority were parties, specifically stated that Hunt’s services were to be rendered only for the benefit of the Stadium Authority, and not for the benefit of any other entities or individuals working at the site. The contract also provided that Hunt was not assuming control over the safety programs of the individual subcontractors nor assuming responsibility to monitor those safety programs. In light of these specific contractual limitations, the Supreme Court held that Hunt did not, by contract, undertake a duty to ensure the safety of all employees of subcontractors working on the project.
The Supreme Court also addressed the issue of whether Hunt had assumed a duty to ensure the safety of the subcontractor’s employees through its actions or conduct. Referencing the long-standing precedent of Plan-Tec v. Wiggins, 443 N.E.2d 1212 (Ind. Ct. App. 1983), the Court held that where a construction manager is not obligated by contract to provide jobsite safety, the construction manager must undertake specific supervisor responsibilities beyond those set forth in the original construction documents in order to “assume” such a legal duty for jobsite safety. Hunt’s contract with the Stadium Authority required Hunt to schedule and conduct weekly meetings with contractors to discuss “such matters as safety” and to routinely inspect the project to determine if contractors were implementing appropriate safety procedures. Having already determined that the contract itself did not impose any legal duty upon Hunt for the safety of a subcontractor’s employee, the Supreme Court concluded that Hunt’s compliance with those contractual obligations did not lead to an “assumption” of a duty to that employee. The undertaking of additional safety responsibilities beyond those required by the contract is necessary before a construction manager can be found to have “assumed” a legal duty for the safety of a subcontractor’s employee.
As a result of the Hunt Construction Group opinion, contractors serving in a construction management role should ensure that their contracts with the owner of the project clearly specify the construction manager’s duties with respect to safety planning, implementation and/or oversight. Further, a construction manager should ensure that the contract for their services specifies that the other contractors and subcontractors are responsible for the implementation and continued operation and maintenance of their own safety programs. Finally, a construction manager should limit its safety-related actions to those duties imposed by its contract.
On the opposite side of the spectrum, while a subcontractor generally will not have the authority to request that certain provisions related to safety be included in the contract between the project owner and construction manager, the subcontractor should be aware of the construction manager’s obligations with respect to safety, in order to understand its own obligations and potential liability for jobsite injuries.
Please contact us at www.hwelaw.com if you have questions regarding this article or if we can be of assistance.