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CONSTRUCTION AND DEATH ACTIONS IN INDIANA
Overview of Negligence Actions in Construction Accidents Under Indiana Law
Indiana plaintiffs must prove three elements to succeed in a claim for negligence: (1) a duty of care owed to the plaintiff; (2) breach of that duty of care; and (3) an injury to the plaintiff. Horine v. Homes by Dave Thompson, LLC, 834 N.E.2d 680 (Ind.App. 2005).
In the context of construction, a general contractor is generally not liable for the negligence of a subcontractor unless the subcontractor is performing a non-delegable duty. Smith v. Walsh Constr. Co. II, LLC, N.E.3d 78, 84 (Ind. App. 2018). There are five categories of non-delegable duties:
1. where the contract requires the performance of intrinsically dangerous work;
2. where the principal is by law or contract charged with performing a 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.
Hunt Const. Group v. Garrett, 938 N.E.2d 794, 798 (Ind.App. 2010) affirmed 964 N.E.2d 222 (Ind. 2012). Vicarious & Contractor Liability
Of particular note in terms of vicarious liability, Indiana recognizes a distinction between general contractors and construction managers. The former have been held vicariously liable for the negligence of subcontractors performing non-delegable duties. The latter, assuming the subcontractor contracted directly with the owner, have been found not liable for a subcontractor’s negligence. Id. As a caution, the absence of a special relationship that gives rise to vicarious liability of a general contractor for the negligence of a subcontractor does not end the inquiry. A construction manager can still be held liable for a breach of duty, imposed by contract, resulting in the injury claimed. Id. As such, a careful review of the written agreement between the construction manager and owner is necessary to assess potential liability.
Aside from vicarious liability, contractors in Indiana can be held liable for injuries to third-parties for their own acts of negligence. Historically, contractors were relieved of liability for negligent workmanship causing injuries to third-parties where the owner accepted the work before the injury occurred. In 2004, however, the Indiana Supreme Court recognized an exception where the contractor’s work is reasonably certain to result in injury if performed in a negligent manner. Peters v. Forster, 804 N.E.2d 736 (Ind. 2004).
Jurors in Indiana are permitted to consider unexcused violations of statutes and ordinances in determining whether a contractor was negligent. Indiana Model Civil Jury Instructions, No. 1139.
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