And I quote: “Lee could have protected himself from liability only by stationing a guard upon the premises to insure that neither Rider, nor anyone else entered upon the inherently dangerous worksite.” A guard? Complete with a shack and taser? Is that the rule? Let me explain.
On December 6, 2010, in , the Indiana Court of Appeals addressed the duties owed by both a general contractor and an independent subcontractor to the purchaser of a home when she visited the construction site, without permission, and suffered serious injuries.
The purchaser, Rider, entered into a contract to buy a house from a general contractor. The general was also the landowner, as possession would be transferred at closing. The general hired Lee, a sub, to perform most of the labor. Importantly, the contract required that any visitor needed permission from the general or the real estate agent to enter the premises.
Although Rider obtained permission once, she visited 30-35 other times without anyone’s permission. On the ill-fated visit in question, Lee and his crew were working on the deck. When rain set in, they split from the site for an early lunch, leaving an unfinished deck. Rider subsequently arrived, leaned on the unattached railing, fell, and suffered severe injuries. Lee and his crew returned, discovered the incident, and nonetheless, finished the deck.
The majority’s view…
Rider filed a complaint for negligence against the general and sub. The court first addressed the liability of the general. As a threshold issue, the court noted that since the general still owned the property and was in possession, its duties are judged based on its status as the landowner. The court ultimately relied on the fact that the general/landowner was neither in actual possession or control of the deck when the accident occurred nor was in control of the premises because he did not perform any actual work. Since the sub did all of the immediate work, Rider’s negligence claim against the general failed.
The court next addressed the sub’s liability. Since the independent contractor had worked on the deck right before the incident and a short time after, the court first held that it was in control for purposes of establishing a duty to Rider. The court then held that the sub’s liability was dependant on whether Rider was rightfully on the premises or whether it was foreseeable that she would visit and be harmed. Although there were unanswered questions of fact, foreseeability was the key issue.
One judge disagreed with the majority’s analysis of the sub’s liability. The judge noted that the construction process is fraught with peril and involves many inherent dangers. To him, the key fact was that the contract required permission to enter. End of story. She didn’t follow the protocol and the sub was not present when the injury occurred. Therefore, it was not foreseeable that she would be there. The dissent felt the issue is more properly the risk incurred by Rider in entering a dangerous site, rather than the duty owed. The dissent stated that the majority’s view “places an impossible burden on contractors” and added the statement I initially quoted.
- Don’t wander around dangerous construction sites. Everyone loves watching their dream house as it’s built. However, I think everyone also loves actually moving into that dream home. Take the time to follow the procedure specified in the contract when you want to visit.
- Despite the dissent’s strong rhetoric, the majority is the law. Thus, if you are in control of the construction, and it is foreseeable that a homeowner (or similar party) will come on the site, take the necessary precautions. (consult a qualified attorney for such precautions).
- Kudos to the sub for finishing the deck.