Mark Gleaves v. Messer Construction Company and PERI Formwork Systems, Inc. ( 2017 )

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