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DOES A GENERAL CONTRACTOR OWE A DUTY OF CARE TO AN INDEPENDENT CONTRACTOR AND/OR ITS EMPLOYEES?
December 7, 2017
by Georgianne Walker

 

Generally speaking, Indiana law provides that a general contractor does not owe an outright duty of care to an independent contractor, a subcontractor, or a subcontractor’s employees. The rationale behind this rule is that a general contractor has very little control over the way a subcontractor completes its work.

However, there are five exceptions to this general rule.  Those five exceptions are:

  1. Where the contract requires the performance of intrinsically dangerous work;
  2. Where the principal is by law or contract charged with performing the specific duty;
  3. Where the act will create a nuisance;
  4. Where the act to be performed will probably cause injury to others unless due precaution is taken; and
  5. Where the act to be performed is illegal.

The Indiana Supreme Court unanimously decided a case regarding one of the above exceptions.  In Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3rd 908 (Ind. 2017), the Indiana Supreme Court addressed the exception imposing a duty on a general contractor when a contractual obligation affirmatively shows the general contractor intended to assume a duty of care for the safety of others.  As the Court noted, this “duty imposed by contract, once formed, is non-delegable and is thought to encourage the general contractor to minimize the risk of resulting injuries.”  In the Ryan case, the contractual language included terms as follows:

  • “[General contractor] 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 …”
  • General contractor “assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the work.”
  • General contractor is 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.”
  • The safety representative was to “make routine daily inspections of the site and … hold weekly safety meetings with personnel, subcontractors and others as applicable.”
  • General contractor and subcontractors “shall comply with all legal requirements relating to safety.”
  • General contractor “shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction.”
  • General contractor assumes responsibility for “proper performance of the work of subcontractors and any acts and omissions in connection with such performance.”
  • General contractor will “provide all material, equipment, tools and labor, necessary to complete the work.”

The Indiana Supreme Court found, in the above referenced case, that the above contractual language established that the general contractor had “assumed a duty of care related to work-site safety for all employees”.  The Court included subcontractors, sub-subcontractors, and their employees.

In Ryan, the Indiana Supreme Court decided that the question of whether a general contractor owes a duty to an independent contractor, subcontractor, or the subcontractor’s employees should be determined on a case by case contract interpretation analysis.  It is important for general contractors to carefully negotiate the terms of the contracts they enter into with their subcontractors, sub-subcontractors, and independent contractors.  Including certain language could result in a general contractor assuming a duty of care to individuals upon whom the general contractor had no intent to assume responsibility for. 

The content of this article is for information purposes only, and neither contains nor should be considered legal advice.

 

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