Imagine a situation where a general contractor enters into a contract with a property owner to build a new manufacturing facility. The general contractor hires various subcontractors to perform different tasks on the project. During the performance of one of those tasks, a subcontractor’s employee is seriously injured through no fault of his own by an act a simple safety measure could have prevented. Although the worker’s injury would be covered by worker’s compensation through his employer, he may also have a remedy against the general contractor. Who is ultimately responsible for the worker’s injury and how might this scenario be decided by an Indiana court?
Under Indiana law, ordinarily, a general contractor owes no duty to its subcontractors’ employees. See Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995). Therefore, “when a subcontractor fails to provide a reasonably safe workspace, the general contractor will not incur liability for employee injury . . . 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.” Ryan v. TCI Architects / Engineers / Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). This general rule, however, is subject to five exceptions, Bagley, 658 N.E.2d at 586, one of which is probably the most litigated in these situations: whether a contractual obligation imposes a ‘specific duty’ on the general contractor. Ryan, 72 N.E.3d at 913.
The assumption of contractual duty exception applies when a general contractor’s contract with the project owner “affirmatively evinces an intent to assume a duty of care.” Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind.Ct.App. 2007). A general contractor’s contractually assumed duty “exposes the general contractor to potential liability for a negligence claim where no such liability would have otherwise existed.” Ryan, 72 N.E.3d at 914. In other words, the general contractor is charged with providing an additional layer of responsibility that would not exist without a contractual promise. See Harris v. Kettlehut Constr., Inc., 468 N.E.2d 1069, 1076 (Ind.Ct.App. 1984) (general contractor and subcontractor jointly liable for duty assumed by each party).
In Ryan v. TCI Architects/Engineers/Contractors, Inc., the Indiana Supreme Court found that a general contractor assumed a non-delegable duty of care finding the contractor (1) assumed “responsibility for implementing and monitoring all safety precautions and programs related to work performance”; (2) “demonstrate[d] an intent to control” the worksite; and (3) “charg[ed] [the general contractor] with the duty of designating a safety representative to perform inspections and hold safety meetings with contractors.” Ryan, 72 N.E.3d 908, at 915. The Court held that “by entering into a contract containing language that required [the general contractor] to assume responsibility for implementing and monitoring safety precautions and programs for all individuals working on the site, and by agreeing to designate a safety representative to supervise such implementation and monitoring, the [general contractor] affirmatively demonstrated an intent to assume a non-delegable duty of care.” Ryan, 72 N.E.3d 908 at 917. As to Indiana Court of Appeals precedent, the Indiana Supreme Court noted a common thread in cases finding a non-delegable duty where “the contract includes requirements 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.” Ryan, 72 N.E.3d at 916.
In conclusion, like the answer to many legal questions, the answer to the question posed above is, “it depends.” Whether a general contractor is responsible for a subcontractor worker’s injuries that could have been prevented by proper safety measures on the construction site could depend on the general’s contract with the owner. However, even if the contract at issue does not evidence an intent to assume a duty for the safety of workers on the site, the general contractor could still be found negligent for its own acts or omissions causing injury. See Vaughn v. Daniels Company (West Virginia), Inc., 841 N.E.2d 1133, 1145-1146 (Ind. 2006) (noting that although Daniels did not have any responsibility over safety on the site “[i]t was reasonably foreseeable that if Daniels did not use reasonable care to design a safe unassembled and uninstalled facility, those who handled it in the process of assembly and installation, including Vaughn, might be at risk of injury. There is no policy reason to immunize Daniels from liability to those who are injured as a result of negligent design.”)