Construction Manager as Advisor/Agent—liability for site safety, by Hugh Anderson

Issue:  Construction  Manager  as  Advisor/Agent—liability  for  site  safety.  Hunt Construction Group, Inc., v. Garrett. Indiana Supreme Court (2012).

Summary: Construction managers often provide services related to project safety. This case, arising from the construction of Lucas Oil Stadium in Indianapolis, examines whether a substantial set of contractual safety duties exposed the CM to liability to the project workforce for injuries.

During construction of the stadium, an employee of the concrete contractor was injured after removal of a form. She sued Hunt, the CM, claiming that Hunt was partly responsible for the safety of the workforce at the site.

Hunt was a CM whose obligations were advisory; it was not a CM at risk, in that Hunt did not itself perform construction or enter into construction contracts with lower tier parties. Its safety duties were fairly extensive, however. According to its contract with the public owner, among other safety duties Hunt was required to develop a project-­‐wide safety program; review safety plans of the various construction contractors; observe the construction in progress and report any safety violations; and remove unsafe employees or equipment from the site. On the basis of these duties, the Court of Appeals of Indiana held that the injured employee could proceed with a negligence case against Hunt. The appeals court acknowledged that the owner–CM contract contained clauses that emphasized that the various construction contractors were not relieved of their obligations for site safety by the CM’s involvement, that the CM did not control the construction contractors or their means and methods of construction, and that the owner-­‐CM contract was solely for the benefit of the owner. Nonetheless, the Court of Appeals concluded that the CM’s contractual safety duties were such that it had assumed a duty to workers at the site. Hunt appealed this decision to the state supreme court.

Decision: The Indiana Supreme Court overturned the lower court’s decision, ruling that the CM did not owe a duty to the project workforce. The court relied on the “disclaimer” clauses in the owner-­‐CM contract to conclude that the CM’s duties were strictly for the benefit of the owner. The court also saw the need to establish a policy that promoted safety by allowing CMs to enhance and promote safety without becoming the “insurer of safety for workers of other contractors.”

Comment: The decision places a premium on the carefully crafted contract clauses that sought to clarify that the CM’s involvement in safety was limited, and always secondary to the construction contractors’ safety duties. The court perceived that making a limited contribution to safety, without exposure to liability, was better for the workforce than if CMs declined to undertake any safety tasks at all. The same reasoning might be beneficial to design professionals that are encouraged to take safety concerns into consideration during design—perhaps contract clauses could shield them from punishment for a good deed, at least in jurisdictions taking the Indiana Supreme Court’s position.