December 7, 2010
Yesterday, the Indiana Court of Appeals issued its decision in
Rider v. McCamment, 938 N.E.2d 262 (Ind. Ct. App. 2010), Case No. 16A01-1004-CT-180, which dealt with premises liability claims against both a home builder and subcontractor for injuries the purchaser of the home suffered while visiting the worksite. In a split decision, the Court held that the home builder was not liable, but that the subcontractor could be.
less..
McCamment was a home builder and the Riders purchased a home from McCamment. The house was still under construction at the time of the purchase, so the Riders wouldn't take possession of the home until construction was completed. The agreement stated that the Riders would not visit the worksite without first obtaining permission to do so. McCamment then subcontracted with another party, Lee, to do most of the actual construction.
Mrs. Rider obtained permission once to visit the home to discuss placement of electrical receptacles, installation of a handicap toilet, and other changes to the standard house plan. At this visit, she met McCamment at another similar house in the subdivision. Mrs. Rider also visited the house thirty to thirty-five other times without anyone's permission.
One day, Lee was working on the deck at the back of the house. At approximately 11:00 a.m., rain started. Lee and his men decided to interrupt their work and leave for lunch early. It was obvious that the deck was not finished yet. Sometime after Lee left, Mrs. Rider arrived unannounced to check the construction, where she went out onto the deck and leaned over the railing to look at the drop off. The railing gave way and Mrs. Rider fell to the ground sustaining multiple and severe injuries.
The Riders filed a complaint sounding in negligence against both McCamment and Lee. Each of these defendants filed a motion for summary judgment and the trial court granted both of those motions. The Riders appealed.
On appeal, the Court treated McCamment as the landowner, noting that there was no difference whether he was a general contractor or landowner. However, it held that McCamment was not negligent because he was neither present at the construction site when Mrs. Rider inspected the deck nor performed any work on the premises on the day of the accident or any other day over the course of construction.
Accordingly, McCamment did not control the premises for purposes of establishing a duty of care to Rider because he did not exercise actual possession or control over the deck, was not present at the site on the accident day, and had a contractor do the immediate work. Absent the control element, McCamment prevails on his summary judgment motion because Rider's negligence claim against McCamment fails as matter of law.
The same did not hold true for the subcontractor, Lee. As the subcontractor performing the work, Lee was in actual possession and control of the deck for the purposes of establishing a duty of care to Mrs. Rider. Moreover, the fact that Mrs. Rider did not follow protocol before visiting the worksite was not dispositive.
Rider visited the construction site thirty to thirty-five times between April and August of 2006 without getting anyone's permission. Rider followed the protocol only once prior to meeting with McCamment and Lee at another house in the subdivision to discuss certain changes to the standard house plan. Both McCamment and Lee argue that this prearranged meeting was the only time when they met Rider. Rider disagrees. She claims that she saw Lee four to five times at the building site during the course of the construction. Rider also contends that she typically met with the real estate agent to discuss the problems with the construction, yet the real estate agent claims that he was unaware of Rider’s thirty to thirty-five visits.
As such, based on these conflicting facts, we are unable to draw reasonable inferences as to whether Lee saw Rider or knew that she frequented the construction site. Although Lee exercised control over the premises, the facts designated to us by the parties are not sufficient to conclude whether Rider was rightfully on the premises and whether she was a foreseeable visitor.
The opinion does not address any other defenses that the subcontractor could have raised, presumably because the subcontractor did not raise those issues in his motion for summary judgment. Thus, the holding of this case is limited -- a contractor owes a duty of care to any foreseeable visitor to a premises controlled by that contractor, even if the contractor is not at the premises at the time of the visit.
Lessons:
- A landowner does not owe a duty to an invitee if the landowner does not exercise possession or control over the property.
- A contractor owes a duty to any foreseeable visitor to a premises over which the contractor exercises possession or control, even in the contractor's absence.
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