FILED Mar 20 2024, 9:31 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Ashley Jackson, as Personal Representative of the Estate of Michael L. Jackson, Deceased, Appellant-Plaintiff
v.
E&B Paving, LLC, Hanson Professional Services, Inc., Fox Contractors Corp., Crawford Murphy & Tilly, Inc., Indiana Sign & Barricade, Inc., City of Indianapolis, Marion County Board of Commissioners, and Marion County Board of Public Works, Appellees-Defendants
March 20, 2024 Court of Appeals Case No. 23A-CT-950 Appeal from the Marion Superior Court The Honorable Patrick J. Dietrick, Judge Trial Court Cause No. 49D12-2004-CT-13459
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 1 of 20 Opinion by Judge Riley Judges Foley and Felix concur.
Riley, Judge.
STATEMENT OF THE CASE 1 [1] Appellant-Plaintiff, Ashley Jackson, as personal representative of the Estate of
Michael L. Jackson (the Estate), appeals the trial court’s summary judgment in
favor of Appellees-Defendants, E&B Paving, LLC (E&B), Fox Contractors,
Corp. (Fox), and Hanson Professional Services, Inc. (Hanson) (collectively, the
Defendants).2
[2] We affirm.
ISSUE [3] The Estate presents this court with one issue, which we restate as: Whether
genuine issues of material fact exist precluding summary judgment for the
1 On February 27, 2024, we held oral argument. Our thanks to Wabash College for its hospitality and to Prof. Jeffrey Drury, Chair of the Rhetoric Department, for his continued support of the Court’s traveling oral arguments. We also thank counsel for the parties for their professional presentations. 2 Litigation is ongoing against co-defendants Crawford, Murphy & Tilly, Inc., and the City of Indianapolis, who did not move for summary judgment and do not participate in this appeal. Co-defendants Marion County Board of Commissioners and Marion County Board of Public Works do not participate in this appeal. After the Estate filed its appellate brief, it settled with Indiana Sign & Barricade, Inc., the subcontractor/provider of traffic control signage and markers for the Project. On September 27, 2023, the motions panel of this court granted the joint motion of the Estate and Indiana Sign & Barricade, Inc., to dismiss with prejudice the Estate’s appeal against Indiana State & Barricade, Inc., only. Therefore, we disregard the Estate’s appellate arguments pertaining to that co-defendant.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 2 of 20 Defendants on the issue of whether they owed Michael L. Jackson (Jackson)
any duty of care sufficient to support its negligence claims.
FACTS AND PROCEDURAL HISTORY [4] In the summer of 2018, the City of Indianapolis (the City) was in the midst of a
project to repave, add sidewalks, and add pedestrian traffic control devices to
sections of Mitthoeffer 3 Road on the east side of Indianapolis between 30th and
38th Streets (the Project). The portions of Mitthoeffer Road involved in the
Project did not have any pre-existing accommodations for pedestrians in the
form of sidewalks, dedicated pedestrian travel paths, or dedicated pedestrian
footpaths. Prior to the commencement of the Project, the west side of
Mitthoeffer Road had no sidewalk, and the east side of Mitthoeffer Road had a
paved shoulder.
[5] The firm of Crawford, Murphy & Tilly (CMT) designed the Project, which did
not provide for any pedestrian traffic management in the form of crosswalks,
alternate pedestrian walkways, or in any other manner during the Project. The
City contracted with E&B to be its general contractor on the Project (the
Agreement). The City also hired Hanson through the Professional Services
Agreement (PSA) to be its resident project representative (RPR) on the Project,
meaning that it was to observe the Project for compliance with CMT’s plans
and report to the City, among other duties. E&B subcontracted with Fox to
3 “Mitthoeffer” is at times spelled “Mitthoefer” in the record.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 3 of 20 provide certain services, including excavation of the paved shoulder on the east
side of Mitthoeffer, for the Project. E&B, Fox, and Hanson did not design any
plans or specifications for the Project.
[6] On July 22, 2018, while walking within the Project zone on the east side of
Mitthoeffer Road near John Jay Drive, Jackson was struck and killed by a
vehicle driven by Karl R. Satter, II (Satter). 4 On April 8, 2020, the Estate filed a
Complaint, which it amended for the final time on June 25, 2020, alleging
wrongful death due to negligence and naming, among others, CMT, the City,
E&B, Fox, and Hanson.
[7] Each of the Defendants appeared and answered the Complaint. On September
3, 2020, July 21, 2022, and August 2, 2022, Fox, Hanson, and E&B,
respectively, filed its motion, memorandum, and designation of evidence in
support of summary judgment. Copious summary judgment briefing ensued.
The Defendants argued in relevant part that they owed no duty to Jackson to
provide an alternate pedestrian route during construction and that they
followed CMT’s plans which contained no provisions for an alternate
pedestrian route. The Estate argued in relevant part that E&B, Fox, and
4 The Estate named Satter as a co-defendant in the Complaint. Satter subsequently settled with the Estate. On May 12, 2021, Satter was dismissed from the instant lawsuit by stipulation of the parties. The trial court took judicial notice of the fact that Satter was convicted of Level 5 felony failure to remain at the scene of an accident that resulted in death relating to the July 22, 2018, fatal collision.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 4 of 20 Hanson had assumed a duty to Jackson through the contractual terms of the
Agreement and the PSA.
[8] On August 3, 2022, and on January 30, 2023, the trial court held hearings on
the Defendants’ motions. On March 30, 2023, the trial court issued three
separate orders granting summary judgment to E&B, Fox, and Hanson based
on its conclusion that, as a matter of law, none of the Defendants owed a duty
of care to Jackson. As to E&B, the trial court entered the following relevant
findings and conclusions:
7. There was nothing in the design plans regarding temporary walkways or sidewalks on the east side of the roadway. While a [City] project specification provided that “pedestrian traffic shall be maintained and disruption kept to a minimum”, the designer of the project did not consider plans or designs which redirected pedestrian traffic because there was no existing sidewalk or other pedestrian pathway which was being closed. The designer testified that the design complied with the [Indiana Department of Transportation’s (INDOT)] specifications and the Indiana Manual on Uniform Traffic Control Devices [(IMUTCD)].
****
1. E&B did not have a duty to provide [Jackson] with a pedestrian pathway at the time of the subject accident;
2. The plans and specifications relative to the subject contract, which did not provide for the construction of a pedestrian pathway, were not so obviously dangerous that no reasonable contractor would follow them;
3. That E&B did not breach any duty to [Jackson] to perform its work in conformance with the applicable plans and specifications;
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 5 of 20 4. To the extent Fox . . . performed [its] respective work in a negligent manner and/or in violation of the applicable plans and specifications, and the same was a responsible cause of [Jackson’s] death, E&B is without liability for any such acts or omissions.
(Appellant’s App. Vol. II, pp. 39, 42). The trial court entered the following
relevant findings and conclusions regarding Fox:
26. CMT testified that the designs complied with the INDOT specifications and the [IMUTCD].
**** 36. [] Fox was contracted by E&B to perform specific work as part of the Mitthoeffer Project. No employees of Fox were present on the Mitthoeffer Project on the date of Jackson’s incident, July 22, 2018. The last time any Fox employee performed work on the Mitthoeffer Project was July 18, 2020, four (4) days prior to the incident. Additionally, the area of Fox’s work on July 18, 2020 was approximately 1400 feet south of the location of this accident.
37. Furthermore, the undisputed evidence establishes Fox’s work on the project was performed in compliance with the [P]roject plans and specifications, including the IMUTCD. The [P]roject plans and design drawings did not have any alternative pedestrian paths called for related to the shoulder removal. There is no support in either the contract documents or deposition testimony of the parties that there was any requirement for an alternative pedestrian pathway to be provided related to the shoulder removal.
38. “There is no breach of duty and consequently no negligence where a contractor merely follows the plans or specifications given him by the owner so long as they are not so obviously dangerous or defective that no reasonable contractor would follow them.” Peters v. Forester, 804 N.E.2d 736, 742 (Ind. 2004); see also Raytheon Engineers Y Constructors, Inc. V. Sargent Elec. Co., 932 N.E.2d 691 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 6 of 20 39. The [c]ourt finds there is no evidence the [P]roject plans prepared by CMT and followed by Fox as it relates to the shoulder removal were obviously dangerous or defective.
(Appellant’s App. Vol. II, pp. 47-49). Lastly, as to Hanson, the trial court
entered the following relevant findings and conclusions:
64. [The Estate] argues Hanson purportedly had a duty to ensure compliance by others on the Project with all aspects of the IMUTCD and other applicable laws, regardless of the information set forth in the design documents.
65. [The Estate’s] argument relies on provisions set forth in the [“Policy and Procedures Manual for Inspection of Locally Funded Construction Projects” (City Manual)] (incorporated by reference into the [PSA]) and the IMUTCD (referenced in the [City] Manual). However, the preamble to the [City] Manual states as follows: “Nothing in this manual shall operate as or be construed as modifying, supplementing, or otherwise changing or altering the provisions of the Contract Documents between the Contractor and the [City], including, without limitation Article 8 of the General Conditions or the provisions of the [PSA] between [Hanson] and [the City].” Based on the plain, unambiguous terms of these documents, the [c]ourt finds that neither the [City] Manual nor the IMUTCD can be interpreted in a manner that would “modify, supplement, or otherwise change or alter” the terms of the [PSA]. As such, no provisions or terms in the [City] Manual or IMUTCD can serve as a basis for imposing a contractual duty on Hanson.
(Appellant’s App. Vol. II, pp. 62-63) (record citations and emphasis omitted).
Pursuant to Indiana Trial Rule 54(B), the trial court entered its summary
judgments as final, appealable judgments.
[9] The Estate now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 7 of 20 DISCUSSION AND DECISION I. Standard of Review
[10] The Estate appeals following the trial court’s grant of summary judgment to
E&B, Fox, and Hanson. Our supreme court recently reiterated our standard of
review of a trial court’s summary judgment as follows:
We review the trial court’s summary judgment decision de novo. [The moving party] is entitled to summary judgment if the designated evidence shows there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. A genuine issue of material fact exists when there is contrary evidence showing differing accounts of the truth, or when conflicting reasonable inferences may be drawn from the parties’ consistent accounts and resolution of that conflict will affect the outcome of a claim. To the extent we have any doubts concerning the existence of a genuine issue of material fact, we must resolve those doubts in favor of the nonmoving party.
Z.D. v. Com. Health Net., Inc., 217 N.E.3d 527, 531 (Ind. 2023) (citations and
internal quotes omitted). The party moving for summary judgment bears the
initial burden of making a prima facie showing that there are no genuine issues
of material fact and that it is entitled to judgment as a matter of law. Sargent v.
State, 27 N.E.3d 729, 731 (Ind. 2015). “Summary judgment is improper if the
movant fails to carry its burden, but if it succeeds, then the nonmoving party
must come forward with evidence establishing the existence of a genuine issue
of material fact.” Id. at 731-32. The nonmoving party against whom summary
judgment was entered has the burden on appeal to persuade us that the trial
court’s grant of summary judgment was in error, but we will scrutinize the trial
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 8 of 20 court’s decision to ensure that the nonmovant is not improperly denied his day
in court. Gochenour v. CSX Transp., Inc., 44 N.E.3d 794, 799 (Ind. Ct. App.
2015), trans. denied. When reviewing the grant of summary judgment, we may
affirm the trial court’s ruling on any basis apparent in the record. Markey v.
Estate of Markey, 38 N.E.3d 1003, 1006-07 (Ind. 2015). Inasmuch as the Estate’s
claims require us to construe contractual provisions, those are matters of law
particularly suitable for summary judgment which we review de novo.
Alexander v. Linkmeyer Dev. II, LLC, 119 N.E.3d 603, 612 (Ind. Ct. App. 2019).
[11] Before proceeding to the merits of the Estate’s claims, we observe that the trial
court entered findings of fact and conclusions thereon. Special findings are not
required in summary judgment proceedings and are not binding on appeal.
AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale for its review and facilitate appellate review. Id.
II. Assumption of Duty Through Contract
[12] The Estate brought wrongful death claims sounding in negligence against E&B,
Fox, and Hanson. In order to prevail in a negligence suit, a plaintiff must prove
“three elements: (1) a duty on the part of the defendant in relation to the
plaintiff; (2) a failure by the defendant to conform its conduct to the requisite
standard of care; and (3) an injury to the plaintiff proximately caused by the
failure.” Coleman v. Charles Court, LLC, 797 N.E.2d 775, 788 (Ind. Ct. App.
2003). To prevail on a motion for summary judgment in a negligence suit, a
defendant must show that the undisputed facts negate at least one of these
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 9 of 20 elements. Id. In the absence of a duty, “there can be no negligence or liability
based upon the breach.” Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d
384, 386 (Ind. 2016). The existence of a duty is a question of law for the court
to decide. Id. at 387.
[13] “A duty of care may arise where one party assumes a duty.” Estate of Staggs v.
ADS Logistics Co., LLC, 102 N.E.3d 319, 323 (Ind. Ct. App. 2018), trans. denied.
A party may assume a duty through contractual provisions if those provisions
affirmatively evince an intent to assume the duty. Id. In determining whether a
contracting party assumed a duty of care, we are guided by well-established
principles of contract interpretation. Ryan v. TCI, 72 N.E.3d 908, 914 (Ind.
2017). We will determine the intent of the parties at the time they entered into
the contract by examining the language used to express the parties’ rights and
duties. Id. We look at the contract as a whole, and we interpret the contract in
a manner which harmonizes all its provisions, giving the contract’s clear and
unambiguous terms their ordinary meaning. Id. The Estate contends that
E&B, Fox, and Hanson each assumed a contractual duty to the public using
Mitthoeffer Road during the Project, including Jackson, to safeguard pedestrian
traffic. We examine this claim as to each Defendant in turn.
A. E&B
[14] The Agreement between E&B and the City listed a number of “Contract
Documents”, which included the Agreement itself, the Project plans, the City’s
Standards and Specifications, and INDOT’s Standard and Supplemental Series,
Sections 200 through 900, listed in that order. The Agreement provided that
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 10 of 20 the Contract Documents “accurately and fully describe the terms and
conditions upon which [E&B] is willing to furnish the labor, tools, material,
equipment, services and perform the [w]ork called for by the Contract
Documents . . . .” (Appellant’s App. Vol. VII, p. 22). The City and E&B
agreed that the Contract Documents were “as fully a part of this Agreement as
if set out verbatim herein or attached hereto and the same do in all particulars
become the Agreement between the parties hereto in all matters and things set
forth herein and described[.]” (Appellant’s App. Vol. VII, p. 23). Another
provision of the Agreement provided that “[a] requirement occurring in one
Contract Document is binding as though occurring in all Contract
Documents[.]” (Appellant’s App. Vol. VII, p. 23).
[15] One of the City’s Standards and Specifications provided that
[p]edestrian traffic also shall be maintained and disruption thereof kept to a minimum. . . . If adequate sidewalk area is not available, the CONTRACTOR shall divert pedestrian traffic across the street and shall provide all materials necessary to provide for the crossover.
(Appellant’s App. Vol. VII, p. 37). Another Contract Document, INDOT’s
Standard Specification Section 801.03, referenced the IMUTCD, sections 6A
and 6D of which provide that the “needs and control of all road users
[including pedestrians] . . . shall be an essential part of highway construction”
and that if a temporary traffic control zone “affects the movement of
pedestrians, adequate pedestrian access and walkways shall be provided.”
(Appellant’s App. Vol. VII, p. 66) (additional emphasis in original omitted).
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 11 of 20 Citing these provisions, the Estate argues that E&B assumed a duty to provide
pedestrian crossovers or walkways during the Project or to safeguard pedestrian
safety in some other manner, such as alerting the City of the need for additional
pedestrian safety measures at the Project.
[16] We cannot agree. In addition to the Agreement provisions and the selected
portions of the Contract Documents which were incorporated into the
Agreement by reference, the Agreement contained the following provisions:
In resolving conflicts, errors, discrepancies[,] and disputes concerning the nature, character, scope or extent of [work] to be performed or furnished by [E&B], or other rights and obligations of the [City and E&B], arising from or prescribed by one or more of the Contract Documents, the following rules shall govern:
.3 The Contract Documents shall be given precedence in the order listed in Paragraph 1.1. above; and
.4 In documents of equal priority, if any such conflict, error, discrepancy or dispute cannot be resolved or reconciled by application of the rules in Subparagraphs 1.2.1 through 1.2.3, then the provision expressing the greater quantity, quality, or scope of work, or imposing the greater obligation upon the CONTRACTOR or affording the greater right or remedy to the [City] shall govern, without regard to the party who drafted such provisions.
(Appellant’s App. Vol. VII, pp. 23-24). The City and INDOT specifications
relied upon by the Estate only specifically refer to the provision of pedestrian
crossovers and/or pedestrian walkways. Those specifications do not refer to
any larger or expanded duty to report issues or to safeguard pedestrian safety
through other means. It is a well-settled principle of contract interpretation that Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 12 of 20 we do not add terms to a contract. See Care Group Heart Hosp., LLC v. Sawyer, 93
N.E.3d 745, 756 (Ind. 2018) (“[W]e will not add tacit terms into the parties’
express, agreed-upon ones.”). Therefore, we reject the Estate’s proposition to
read into the Agreement additional pedestrian safeguarding measures beyond
the provision of crossovers and sidewalks.
[17] It is undisputed that the Project plans did not provide for pedestrian crossovers
or walkways. The incorporation of the City and INDOT specifications into the
Agreement created a conflict or a discrepancy between the Project plans and the
City and INDOT specifications. Pursuant to subparagraph .3 of the
Agreement’s conflict resolution provision, the Project plans, which were listed
before the City and INDOT specifications, took precedence over the cited
specifications. Subparagraph .4 does not apply here, as the Project plans, City
Standards and Specifications, and the INDOT Standard Specifications were not
Contract Documents of equal priority. Therefore, according to the plain and
unambiguous terms of the Agreement, E&B’s scope of work did not extend to
the provision of pedestrian crossovers and walkways, and E&B did not assume
any duty to provide the same.
[18] Contrary to the Estate’s assertions, Smith v. Walsh Construction Company II, LLC,
95 N.E.3d 78 (Ind. Ct. App. 2018), trans. denied, does not support the existence
of a duty of care on the part of E&B. In that case, a motorist was killed when
his vehicle allegedly encountered a substantial amount of mud that had
accumulated on the surface of the roadway near an INDOT bridge construction
project. Id. at 83. The motorist’s estate sued the general contractor, Walsh, and
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 13 of 20 several subcontractors, among others, for wrongful death. Id. at 83-84. In
affirming the denial of summary judgment for Walsh, another panel of this
court found that Walsh owed a non-delegable duty of care to the killed motorist
and to the public who used the roadway due to specific, express provisions in
Walsh’s contract with INDOT in which Walsh agreed to “take all reasonably
necessary actions to protect . . . the safety of the public . . .”, to provide a stable
construction entrance to be built of twelve inches of stone where construction
traffic would enter the roadway, to address any and all degradation and erosion
control issues occurring at the site, to ensure that “the roadway, structures,
barricades, and construction [be] kept in satisfactory condition at all times”, and
to provide for the prompt removal of all dirt and other materials deposited on
the roadways by construction operations if the accumulation was enough to
form mud or create a traffic hazard. Id. at 85-86. The Smith court further
concluded that, even if these duties had been delegable, there was no genuine
issue of material fact that Walsh had not, indeed, delegated those duties to any
of its subcontractors. Id. at 86. Therefore, the court held that “[b]y deciding to
perform this work, Walsh elected to assume a duty of care with respect to the
work.” Id.
[19] The Smith court reversed the trial court’s grant of summary judgment to the
subcontractor responsible for installing erosion control measures, Roudebush,
also concluding, as it had for Walsh, that Roudebush had assumed a
contractual duty towards the killed motorist and the general public. Id. at 93-
94. As to Roudebush, the estate had argued that the subcontractor should have
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 14 of 20 done more than simply follow the design plans for the bridge contract for
erosion control measures by insisting that silt fencing or other erosion control
measures not called for by the plans be installed. Id. at 93. The subcontract
between Walsh and Roudebush contained specific, express provisions that
Roudebush was assuming toward Walsh all of the obligations Walsh had
assumed in its contract with INDOT. Id. at 93. The subcontract further
provided that Roudebush had a duty to notify Walsh of any defects in its own
work or in the work of any other entity, to notify Walsh of any unsafe site
conditions not expressly within its responsibility, and to keep the public streets
and roadways free of dirt. Id. at 93-94. The Roudebush/Walsh subcontract
also incorporated by reference some INDOT requirements pertaining to the
installation of temporary erosion and sediment control measures that were
contained in the Walsh/INDOT contract. Id. at 94. The Smith court held that
“[i]n light of these contractual provisions as a whole, it is apparent that
Roudebush had a contractual duty to consider whether additional erosion
control measures (in addition to those specific in [the designer’s] plans) were
required[.]” Id.
[20] Contrary to the Estate’s arguments on appeal, Smith does not stand for the
proposition that, simply by entering into contracts pertaining to a public project,
a general contractor or subcontractor always owes a duty of care to the general
public, that a contractor always has a duty to investigate or inquire into
additional ways of accomplishing a project plan’s goals or directives, or that the
incorporation of INDOT specifications into a contract is always binding.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 15 of 20 Rather, Smith turned on the terms of the specific contracts involved between
INDOT, Walsh, and Roudebush which differ from the Agreement in the
instant case in material aspects, in that the Agreement did not contain express
provisions that E&B would guarantee public safety, did not provide for the
installation of pedestrian crossovers and sidewalks, and did contain a conflict
resolution clause that made the Project plans prevail over any conflicting City
and INDOT specifications. See id. at 85-86, 93-94. Therefore, although we do
so on different grounds relied upon by the trial court, we affirm the entry of
summary judgment in favor of E&B. See Markey, 38 N.E.3d at 1006-07
(holding that we may affirm a summary judgment on any basis supported by
the record).
B. Fox
[21] On appeal, the Estate claims, as it did during summary judgment proceedings
below, that subcontractor Fox owed a duty to Jackson and to other pedestrians
because its contract with general contractor E&B incorporated “multiple
components” of E&B’s contract with the City, including “General Conditions
and Provisions, Plans, Specifications, [and] Special Provisions[.]” (Appellant’s
Br. p. 9). Thus, the Estate’s argument for the existence of a duty on Fox’s part
is predicated on the existence of a duty by E&B. Having concluded that E&B
did not assume such a duty in its own contract with the City, we must conclude
that neither did Fox. Accordingly, we do not disturb the trial court’s entry of
summary judgment as to Fox.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 16 of 20 C. Hanson
[22] Hanson entered into the PSA with the City, pursuant to which it agreed to
provide a resident project representative, inspectors, and clerical and secretarial
personnel, to perform administrative and record keeping functions, to serve as a
liaison between the Project contractors and the City, to observe the unfolding
construction work, and to inspect work for compliance with the Project plans.
In its “Description of Services” section, the PSA provided that Hanson agreed
to “[a]dminister the contract in accordance with the current edition of [the City
Manual]”. (Appellant’s App. Vol. V, p. 117). The City Manual contained the
following two sections relevant to the Estate’s summary judgment arguments:
2-1. Gather Documents and Review
[Hanson] should become completely familiar with all documents necessary for the inspection and construction of the [P]roject prior to commencement of construction.
2-5. Field Visit
After the Contract Documents 5 have been reviewed, and well in advance of construction, [Hanson] shall visit the [P]roject site and become familiar with existing site conditions. [Hanson] shall perform an onsite field check of the entire [P]roject with the [P]roject plans, note locations of key elements of the [P]roject,
5 “Contract Documents” are defined in the PSA as the “plans, addenda, and the contract information book”, which is the book with the City’s “project requirements including the bid front end documents, technical specifications and special conditions.” (Appellant’s App. Vol. V, pp. 68, 70).
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 17 of 20 and become familiar with possible interferences with existing residences, businesses, pedestrian traffic, or the motoring public prior to the contractor starting work.
(Appellant’s App. Vol. VIII, pp. 70, 72) (emphasis added). In addition, the City
Manual incorporates as reference material the IMUTCD containing the
previously-cited provisions relevant to pedestrian safety. The Estate contends
that these portions of the City Manual, as incorporated into the PSA, created a
duty of care on Hanson’s part to Jackson and to the public.
[23] However, as found by the trial court, the City Manual’s Introduction contains
the following statement:
Nothing in this manual shall operate as or be construed as modifying, supplementing, or otherwise changing or altering the provisions of the Contract Documents between [Hanson] and the [City], including without limitation, Article 8 of the General Conditions or the provisions of the [PSA].
(Appellant’s App. Vol. VIII, p. 66). Therefore, by its plain and unambiguous
terms, the City Manual cannot be construed in a way that modifies or
supplements the PSA, and, therefore, it cannot provide a basis for establishing a
contractual duty for Hanson in the manner the Estate argues. On appeal, the
Estate emphasizes that the PSA incorporates the City Manual’s provisions
within its terms, and it contends that our reading renders the PSA’s provision
incorporating the City Manual a nullity. Yet, the PSA incorporates the entire
City Manual, including the Introduction, and the Estate does not provide us
with any legal authority for its implication that we may ignore the Introduction
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 18 of 20 of the City Manual. Neither does the Estate contend that the Introduction is
ambiguous. When entering into the PSA, the parties could have disavowed or
excluded the cited portion of the Introduction, but they did not. Rather, the
City and Hanson’s inclusion of the Introduction evinces their intent that the
City Manual would not modify or supplement their contract. Accordingly, we
also affirm the trial court’s grant of summary judgment to Hanson. 6
CONCLUSION [24] Based on the foregoing, we hold that there exist no genuine issues of material
fact and that E&B, Fox, and Hanson are entitled to summary judgment as a
matter of law.
[25] Affirmed.
Foley, J. and Felix, J. concur
ATTORNEYS FOR APPELLANT Clayton C. Miller Clayton Miller Law, P.C. Indianapolis, Indiana R.T. Green Letha A. Maier Collin W. Green
6 Given the Estate’s framing of the issues in its Appellant’s Brief, our de novo standard of review, and our conclusions, we do not address the trial court’s other rationales for granting summary judgment to E&B, Fox, and Hanson. In addition, because we have not relied on any challenged or disputed factual matters in reaching our conclusions, we do not address the Estate’s arguments challenging the trial court’s factual findings.
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 19 of 20 Team Green Law Indianapolis, Indiana
ATTORNEYS FOR APPELLEES Bruce P. Clark Bruce P. Clark & Associates St. John, Indiana Richard R. Skiles Carlo T. Girolamo Skiles DeTrude Indianapolis, Indiana William E. Kelley, Jr. Tyler L. Jones Drewry Simmons Vornehm, LLP Carmel, Indiana
Court of Appeals of Indiana | Opinion 23A-CT-950 | March 20, 2024 Page 20 of 20