Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Dec 18 2013, 7:18 am
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
RANDY K. FLEMING TERENCE M. AUSTGEN
Sarkisian & Fleming, P.C. ELIZABETH M. BEZAK
Portage, Indiana Burke Costanza & Carberry, LLP
Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LYNDA ROLLINS, )
)
Appellant-Plaintiff, )
)
vs. ) No. 64A03-1307-CT-273
)
GRAYCOR CONSTRUCTION COMPANY, INC., )
GRAYCOR INDUSTRIAL CONSTRUCTORS, )
INC., GRAYCOR INDUSTRIAL )
CONSTRUCTORS, LLC, GRAYCOR )
CONSTRUCTION COMPANY, LLC, and )
GRAYCOR, INC., )
)
Appellees-Defendants. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Judge
Cause No. 64D02-0905-CT-4642
December 18, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Lynda Rollins appeals the trial court’s grant of summary judgment in favor of
Graycor Construction Company Inc. (“Graycor”) in a personal injury negligence action
brought by Rollins.1 We affirm.
Issue
The sole restated issue before us is whether the trial court properly concluded that
Graycor owed no duty to Rollins.
Facts
The undisputed evidence in this case is that Graycor was the general contractor for
the construction of a Bass Pro Shops store in Portage. Graycor hired several independent
contractors to perform the construction work. One of those contractors was Security
Industries, Inc. (“Security”), which specializes in constructing fences and related
structures. Graycor did not control the means or manner of how Security performed its
work, nor did it supply any equipment, tools, or other instrumentalities for Security’s work.
As part of the construction project, Security erected a fence around an outdoor employee
break and smoking area behind the Bass Pro Shops store. Near the fence posts were anchor
bolts that protruded a couple of inches from the ground and which were intended to anchor
a canopy over the smoking area at some time in the future.
1
Rollins originally also sued four other companies related to Graycor: Graycor Industrial Contractors Inc.,
Graycor Industrial Contractors LLC, Graycor Construction Company LLC, and Graycor Inc. Rollins
subsequently conceded that none of these other entities was involved in the construction project that
allegedly led to her injury. The trial court granted summary judgment in favor of these entities, and Rollins
makes no argument that it was erroneous to do so.
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Rollins began working for Bass Pro Shops in January 2007, while the building was
still under construction. Construction was completed in February 2007, and the store was
opened to the public; at that time, Bass Pro Shops accepted Graycor’s work and its
responsibility for the store ended. On May 11, 2007, Rollins went outside to the employee
break area, as she had been doing approximately three times every work day since
beginning her employment. On that day, Rollins tripped over one of the protruding anchor
bolts, which was not visible to her because its rusty color blended in with mulch
surrounding the bolt. Graycor had not placed the mulch. Rollins fell to the ground and
sustained bodily injuries.
Rollins sued Graycor, alleging that it had negligently installed the anchor bolts and
caused her fall and resulting injuries. Graycor subsequently moved for summary judgment,
designating evidence in part that Security, not Graycor, had actually installed the anchor
bolts. The trial court granted summary judgment to Graycor, specifically finding that
Graycor owed no duty to Rollins. Rollins now appeals.
Analysis
We review a trial court’s summary judgment ruling de novo. Miller v. Dobbs, 991
N.E.2d 562, 564 (Ind. 2013). We will affirm a grant of summary judgment “‘only if there
is no genuine issue as to any material fact and the moving party is entitled to a judgment
as a matter of law.’” Id. (quoting Overton v. Grillo, 896 N.E.2d 499, 502 (Ind. 2008)); see
also Ind. Trial Rule 56(C). We must construe all evidence and resolve all doubts in favor
of the non-moving party, so as to avoid improperly denying that party’s day in court. Id.Under Indiana Trial Rule 56(C), a summary judgment movant must make a prima facie
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showing that there are no genuine issues of material fact that it is entitled to judgment as a
matter of law. Wabash County Young Men’s Christian Ass’n, Inc. v. Thompson, 975
N.E.2d 362, 365 (Ind. Ct. App. 2012), trans. denied. If this occurs, the burden shifts to the
nonmoving party to designate evidence establishing the existence of a genuine issue of
material fact. Id.To prevail on a negligence claim, a plaintiff must prove: (1) a duty owed by the
defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to
the plaintiff proximately caused by the breach. Id. Summary judgment is rarely
appropriate in negligence cases. Id. “Nevertheless, a defendant is entitled to judgment as
a matter of law when the undisputed material facts negate at least one element of the
plaintiff’s claim.” Id.Absent a duty, a defendant can have no liability in negligence to an injured party.
Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011). Whether a defendant owed a duty
to a particular plaintiff ordinarily is a question of law for courts to decide. Id. In most
cases, determining whether a duty exists requires a balancing of: (1) the relationship
between the parties; (2) the reasonable foreseeability of harm to the injured party; and (3)
public policy concerns. Id. (citing Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991)). However,
use of the three-part Webb balancing test to determine whether a duty exists is uncalled-
for when the scope and nature of a defendant’s duty has already been declared or otherwise
articulated. Northern Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003).
Rollins asserts in part that Graycor owed a duty to her under a premises liability
theory. “The question of whether a duty is owed in premises liability cases depends
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primarily upon whether the defendant was in control of the premises when the accident
occurred.” Yates v. Johnson County Bd. Of Comm’rs, 888 N.E.2d 842, 847 (Ind. Ct. App.
2008). Here, Graycor had relinquished control over the Bass Pro Shops upon completion
of construction and opening of the store in February 2007, three months before Rollins’s
accident occurred.
Rollins also argues that Graycor owed a duty to her as a contractor under our
supreme court’s holding in Peters v. Forster, 804 N.E.2d 736 (Ind. 2004). In that case, the
court overruled Indiana’s “acceptance rule,” under which contractors owed no duty of care
to third parties injured on a property after the property owner accepted the work. Peters,
804 N.E.2d at 742. Instead, the rule now is that “a contractor is liable for injuries or death
of third persons after acceptance by the owner where the work is reasonably certain to
endanger third parties if negligently completed.” Id. Peters, however, concerned a lawsuit
filed directly against a contractor who installed an allegedly faulty handicapped ramp. See
also Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1192 (Ind. Ct. App. 2011) (applying Peters
in lawsuit filed directly against contractor who performed safety work on hotel tub in which
plaintiff slipped and fell).
Graycor, however, did not install the fencing and associated anchor bolts that
allegedly caused Rollins’s injuries. Instead, Graycor was a general contractor who hired
Security to do that work. As such, Graycor’s duty was well-defined by a legal doctrine
specifically applicable to general contractors; that duty is not governed by Webb, or
premises liability principles, or Peters. Specifically, a principal or general contractor of a
construction project is not liable for the negligence of an independent subcontractor and
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does not owe a duty to a party injured by that negligence unless one of five exceptions
applies. Helms v. Carmel High School Vocational Bldg. Trades Corp., 854 N.E.2d 345,
346 (Ind. 2006). Those 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.
Id. (quoting Bagley v. Insight Commc’ns Co., 658 N.E.2d 584, 586 (Ind. 1995)). The
reason for this rule is the little, if any, control that a general contractor exercises over the
work of its subcontractors, and because a general contractor only requires that the
subcontractor’s completed work meet the specifications of the property owner. England v.
Fairfield Contracting, Inc., 908 N.E.2d 238, 241-42 (Ind. Ct. App. 2008). The rule
regarding general contractor liability for subcontractor negligence, and the exceptions to
that rule, apply to lawsuits by both employees of the subcontractor and third parties.
Bagley, 587-88. As indicated by the decision date in Helms and its reaffirmance of Bagley,
Peters did not affect longstanding law regarding the scope of a general contractor’s duty
with respect to its liability for the negligent work of an independent subcontractor.
Rollins contends that Graycor owed a duty to her with respect to Security’s work
through the fourth exception to general contractor non-liability: “where the act to be
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performed will probably cause injury to others unless due precaution is taken . . . .” Helms,
854 N.E.2d at 346. She asserts that Graycor should have foreseen that, if Security
negligently permitted anchor bolts to protrude above the ground in the Bass Pro Shops
employee break area, someone was at risk of tripping over one of the bolts and sustaining
injury. We believe that Rollins’s argument improperly blurs the line between ordinary
negligence foreseeability and the fourth Helms/Bagley exception, which has been very
narrowly construed.
“For this exception to apply, it must be established that the principal, at the time of
the contract, should have foreseen that the performance of the work or the conditions under
which it was to be performed would, absent precautionary measures, probably cause
injury.” Walker v. Martin, 887 N.E.2d 125, 136 (Ind. Ct. App. 2008), trans. denied. The
foreseeable danger must be substantially similar to the accident producing the injury. Id.Also, “[m]ore than a mere possibility of harm is required; the defendant should have
foreseen the probability of such harm.” Id. (emphasis added). The risk or danger required
to satisfy this exception “must be created by the nature of the work itself, that is, inherent
in the project, rather than collateral to that work.” Red Roof Inns, Inc. v. Purvis, 691
N.E.2d 1341, 1345 (Ind. Ct. App. 1998), trans. denied.
In Walker, we held this exception did not apply to create a duty toward an injured
party on the part of a principal who had hired an independent contractor to haul logs, and
who in turn caused a fatal accident. Observing that there was no evidence the principal
had any knowledge of the contractor having a poor driving record, or of his vehicle having
mechanical problems, or that there was any reason to think the contractor would drive
7
negligently, we ultimately held, “While it may be possible that the act of hauling logs may
cause injury unless certain precautions are taken, we cannot say that the act in and of itself
establishes that injury will probably occur.” Id. at 136-37. In Bagley, the court held the
exception did not apply to an incident in which an employee of an independent contractor
was injured when another person working on a ladder on ice and snow slipped and fell on
top of the employee. The court held, “[a]t the time the contracts were made, the delegated
work did not present the peculiar probability that an injury such as Bagley’s would result
unless precautionary measures were taken . . . .” Bagley, 658 N.E.2d at 588. As a final
example, in Red Roof Inns, we observed that “an employer of an independent contractor
may always anticipate that, if the contractor is negligent toward third persons, some harm
to those persons may result,” but this is insufficient to invoke the “due precaution”
exception. Red Roof Inns, 691 N.E.2d at 1346. In that case, we held the “due precaution”
exception did not apply and the general contractor was not liable with respect to injury to
an employee of an independent contractor-roofing company, where the roofing company
permitted roofing work to be done without any protective equipment, netting, or harnesses
and the employee fell off the roof. Id.Here, Rollins’s argument essentially is that Grayson should have foreseen that if
Security was negligent in its work, a third person might be harmed at some point in the
future. This clearly is not enough to invoke the fourth Helms/Bagley “due precaution”
exception. In fact, it would make an exception to the general rule of non-liability for
general contractors for the work of subcontractors that would swallow the rule. There is
no evidence that Graycor exercised any control over how or where Security installed the
8
anchor bolts. There is no evidence Security had previously been negligent in installing
fences and anchor bolts. There also is nothing inherently dangerous in the installation of
fences or persons walking by or near fences. In fact, the employee break area was used by
Rollins and others on a regular basis for several months before she tripped over the anchor
bolt, when it was partially obscured by mulch that Grayson did not put down. We simply
cannot conclude that there was anything inherently dangerous in the nature of the work that
Grayson asked Security to perform, such that injury would probably result if due
precautions were not taken. As such, the standard rule of non-liability for general
contractors with respect to alleged negligent acts of independent subcontractors applies
here. Graycor did not owe a duty to Rollins.
Conclusion
Because the trial court correctly concluded that Graycor owed no duty to Rollins
with respect to her negligence claim, it properly entered summary judgment in favor of
Graycor. We affirm.
Affirmed.
ROBB, C.J., and BROWN, J., concur.
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