Jeff Clade v. Hunt Construction Group, Inc.

• Court: Indiana Court of Appeals
• Decided: January 17, 2013
• Docket: 49A02-1206-CT-509
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Jan 17 2013, 8:43 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

RONALD S. TODD MARK D. GERTH Ronald S. Todd, P.C. STEVEN E. SPRINGER Noblesville, Indiana MICHAEL WROBLEWSKI Kightlinger & Gray, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JEFF CLADE, ) ) Appellant-Plaintiff, ) ) vs. ) No. 49A02-1206-CT-509 ) HUNT CONSTRUCTION GROUP, INC., ) ) Appellee-Defendant. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather A. Welch, Judge Cause No. 49D12-0902-CT-07192

January 17, 2013

MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION

BAILEY, Judge Jeff Clade (“Clade”) was injured on an icy walkway at a construction site where Hunt

Construction Group, Inc. (“Hunt”) was the construction manager. Clade filed a negligence

claim against Hunt and was granted partial summary judgment on the issue of duty, Hunt

filed a motion for reconsideration, and the trial court granted Hunt summary judgment. We

reversed the trial court’s judgment, observing that summary judgment is rarely appropriate in

a negligence action and concluding that Hunt had failed to negate the element of duty in

Clade’s negligence claim, where the summary judgment materials revealed the parties’

contracts but not conduct.

Hunt petitions for rehearing, contending that Clade has “waived the issue” of the

existence of a genuine issue of material fact as to Hunt’s assumption of duty by conduct. We

write to clarify that, while the issue for resolution is the propriety of summary judgment, and

the trial court and this Court have specifically focused upon the element of duty, the concern

with how a duty might arise is hardly novel. Indeed, Hunt asked the trial court’s

reconsideration of its partial summary judgment order on the basis of Hunt Constr. Grp., Inc.

v. Garrett, 964 N.E.2d 222 (Ind. 2012), which thoroughly examined how a duty might arise in

a construction context.

The Court in Garrett derived from Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212 (Ind.

Ct. App. 1983) an appropriate “template” for analyzing a claim of negligence against a

construction manager for jobsite injuries suffered by a subcontractor’s employee. Garrett,

964 N.E.2d at 226. The duty inquiry is two-fold. Whether a construction manager owes an

employee a legal duty of care for jobsite-employee safety requires answering: (1) whether a

2 duty was imposed upon the construction manager by a contract to which it was a party; and

(2) whether the construction manager assumed such a duty, either gratuitously or voluntarily.

Id.

Having asked the trial court to apply the rationale of Garrett, and thereby raising for

the trial court’s consideration the question of assumption of duty by conduct, Hunt may not

now seek to exclude this concept from our examination of the element of duty and ultimately

the propriety of summary judgment. Accordingly, we affirm our prior opinion.

Crone, J., concurs.

Riley, J., would deny.