In the second lawsuit, the Defendants moved to have Davidson’s case dismissed based upon, among other things, the legal doctrine of issue preclusion, which prevents a party who has previously litigated an issue and lost from relitigating the same issue in a second lawsuit when that issue was necessarily decided in the prior lawsuit by a court of competent jurisdiction. In applying issue preclusion against a party, courts must consider whether the party had a full and fair opportunity to litigate the issue in the first lawsuit and whether it would be unfair under the circumstances for issue preclusion to be used against the party in the second lawsuit. Here, the trial court dismissed Davidson’s second lawsuit with prejudice, the Indiana Court of Appeals reversed finding issue preclusion did not apply, and the Indiana Supreme Court granted transfer.

Ultimately, the Indiana Supreme Court held Davidson’s claims in her second lawsuit were barred by issue preclusion based on its interpretation of Indiana’s Comparative Fault Act. Under the Comparative Fault Act, a trier of fact must consider the fault of all persons who caused or contributed to cause an injury or death and apportion 100% of the damages in the case between parties and nonparties. Nonparties are persons who caused or contributed to cause an alleged injury or death but who have not been joined in a lawsuit as defendants. A defendant may raise a nonparty defense to have fault attributed to a nonparty, thereby lessening any fault attributable to the defendant, and in turn, any judgment that must be paid. However, for fault to be attributed to a nonparty, the Comparative Fault Act requires the nonparty be named in the lawsuit.

Here, the Defendants were neither parties nor named as nonparties in Davidson’s first lawsuit against J Trucking, LLC, and therefore, no fault was attributed to them. As such, although not explicit in the trial court’s judgment in the first lawsuit, the Indiana Supreme Court reasoned the trial court’s judgment necessarily included finding J Trucking, LLC 100% at fault for Davidson’s injuries. The Indiana Supreme Court noted that while the Comparative Fault Act does not apply to tort claims against governmental entities, like the State of Indiana, it nonetheless governs all current actions based on fault brought to recover damages for injury or death to a person (except for cases brought under Indiana’s Medical Malpractice Act). Thus, in mixed-theory cases against non-government and government defendants, the Comparative Fault Act applies to require the trier of fact to apportion fault against all parties and nonparties for full apportionment of fault. Consequently, since 100% of the fault was necessarily attributed to J Trucking, LLC in the first lawsuit, issue preclusion thereby prevented any attribution of fault to Defendants in Davidson’s second lawsuit.

In finding issue preclusion applied to bar Davidson’s claims in her second lawsuit, the Court found that Davidson “really did lose” in her first case because by failing to name the Defendants she lost the ability to obtain an allocation of fault as to the Defendants. Importantly, the Court noted that, in lawsuits brought under the Comparative Fault Act, plaintiffs must name all alleged joint tortfeasors as defendants in one lawsuit or risk being precluded from obtaining a remedy against any unnamed tortfeasors in a subsequent lawsuit. In addition, the Court found Davidson had a full and fair opportunity to litigate against the Defendants in the first lawsuit and it was not unfair to apply issue preclusion to her claims in the second lawsuit. Lastly, the Court found no error in the trial court refusing to treat Defendants’ motions as motions for summary judgment and in dismissing her lawsuit with prejudice against refiling, with no due-process violation.

You can read the full opinion here.

Under Indiana law, ordinarily, a general contractor owes no duty to its subcontractors’ employees. See Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995). Therefore, “when a subcontractor fails to provide a reasonably safe workspace, the general contractor will not incur liability for employee injury . . . The rationale behind this rule is that a general contractor has little to no control over the means and manner a subcontractor employs to complete the work.” Ryan v. TCI Architects / Engineers / Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). This general rule, however, is subject to five exceptions, Bagley, 658 N.E.2d at 586, one of which is probably the most litigated in these situations: whether a contractual obligation imposes a ‘specific duty’ on the general contractor. Ryan, 72 N.E.3d at 913.

The assumption of contractual duty exception applies when a general contractor’s contract with the project owner “affirmatively evinces an intent to assume a duty of care.” Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind.Ct.App. 2007). A general contractor’s contractually assumed duty “exposes the general contractor to potential liability for a negligence claim where no such liability would have otherwise existed.” Ryan, 72 N.E.3d at 914. In other words, the general contractor is charged with providing an additional layer of responsibility that would not exist without a contractual promise. See Harris v. Kettlehut Constr., Inc., 468 N.E.2d 1069, 1076 (Ind.Ct.App. 1984) (general contractor and subcontractor jointly liable for duty assumed by each party).

In Ryan v. TCI Architects/Engineers/Contractors, Inc., the Indiana Supreme Court found that a general contractor assumed a non-delegable duty of care finding the contractor (1) assumed “responsibility for implementing and monitoring all safety precautions and programs related to work performance”; (2) “demonstrate[d] an intent to control” the worksite; and (3) “charg[ed] [the general contractor] with the duty of designating a safety representative to perform inspections and hold safety meetings with contractors.” Ryan, 72 N.E.3d 908, at 915. The Court held that “by entering into a contract containing language that required [the general contractor] to assume responsibility for implementing and monitoring safety precautions and programs for all individuals working on the site, and by agreeing to designate a safety representative to supervise such implementation and monitoring, the [general contractor] affirmatively demonstrated an intent to assume a non-delegable duty of care.” Ryan, 72 N.E.3d 908 at 917. As to Indiana Court of Appeals precedent, the Indiana Supreme Court noted a common thread in cases finding a non-delegable duty where “the contract includes requirements to 1) take precautions for safety of employees, 2) comply with applicable law and regulation, and 3) designate a member of its organizations to prevent accidents.” Ryan, 72 N.E.3d at 916.

In conclusion, like the answer to many legal questions, the answer to the question posed above is, “it depends.” Whether a general contractor is responsible for a subcontractor worker’s injuries that could have been prevented by proper safety measures on the construction site could depend on the general’s contract with the owner. However, even if the contract at issue does not evidence an intent to assume a duty for the safety of workers on the site, the general contractor could still be found negligent for its own acts or omissions causing injury. See Vaughn v. Daniels Company (West Virginia), Inc., 841 N.E.2d 1133, 1145-1146 (Ind. 2006) (noting that although Daniels did not have any responsibility over safety on the site “[i]t was reasonably foreseeable that if Daniels did not use reasonable care to design a safe unassembled and uninstalled facility, those who handled it in the process of assembly and installation, including Vaughn, might be at risk of injury. There is no policy reason to immunize Daniels from liability to those who are injured as a result of negligent design.”)