The Indiana Court of Appeals recently resolved a dispute between an apartment complex property manager, Buckingham Management, L.L.C. d/b/a Bradford Place Apartments (Bradford), and a snow-and-ice removal contractor, Tri-Esco, Inc. (Tri-Esco), arising out of a slip and fall injury that Deborah Perez (Perez) suffered when she slipped and fell on ice at the Bradford Place Apartments in Lafayette, Indiana on February 23, 2015. According to a services agreement for snow removal, Tri-Esco was to remove snow and ice from the parking lot where Perez fell. If it snowed two inches or more, Tri-Esco was to clear ice and snow without an explicit request by Bradford to do so. While the agreement stated that Tri-Esco would otherwise perform salting without a request as warranted by ice and snow conditions, the agreement also had conflicting provisions providing that Tri-Esco would salt the parking lot only upon Bradford’s specific request and salting would be authorized by the maintenance supervisor or the property manager of the apartment complex.
Tri-Esco performed snow removal at the apartment complex on February 21, 2015, two days prior to Perez’s fall. Bradford, which had an on-site maintenance crew and snow and ice removal equipment, applied nine bags of ice melt. Neither Tri-Esco nor Bradford performed any additional snow and ice removal services in the two days prior to Perez’s fall. Bradford did not request that Tri-Esco perform any additional snow and ice removal services. It was undisputed that Tri-Esco never performed any discretionary salting at the apartment complex, was not required to make periodic inspections of the property, had no contractual obligation to be on site after the snow or ice removal services it performed on February 21, 2015 because the two-inch snowfall provision was not thereafter triggered, and Bradford had no expectation that Tri-Esco would provide any snow or ice removal services after February 21, 2015 on February 22 or February 23, 2015.
Perez filed a lawsuit for the personal injuries she suffered as a result of her fall on ice, which necessitated various surgeries. Tri-Esco moved for summary judgment. Tri-Esco argued that it had no duty to apply salt to the parking lot during the two days prior to Perez’s fall; there had been no additional snowfall and no explicit request by Bradford to provide additional services and it was not obligated to preemptively inspect the property or provide services. The trial court granted Tri-Esco’s motion for summary judgment, and Bradford appealed.
Discussing Peters v. Forster, 804 N.E.2d 736 (Ind. 2004), wherein the Indiana Supreme Court addressed a contractor’s liability to third parties, the Indiana Court of Appeals noted that Indiana does not follow the “acceptance rule,” which provides that a contractor owes no duty of care to third parties after an owner has “accepted” the work. Rather, a contractor may be liable for injury or damage to a third person due to the condition of the work where it is reasonably foreseeable that a third party would be injured as a result of negligence in the performance of such work.
Here, the Court found that it was not reasonably foreseeable that Perez would be injured two days after Tri-Esco completed its work because Tri-Esco had not completed and had not been asked to complete any additional work thereafter. The Court reasoned that had Tri-Esco created a dangerous condition on February 21, 2015, Bradford had two days to remedy any such condition and was in a better position to do so. As the Court noted, a defendant’s duty to a plaintiff is often conditioned on his control of the premises at the time of the accident, with the party in control being in the best position to prevent injury on the premises. The Court reasoned that absent any presence, control, or express request from Bradford that Tri-Esco be on the property or perform further snow and ice removal services on the property, there was no basis to find that Tri-Esco owed a duty to Perez.
As to the provision in the services agreement that provided that Tri-Esco would perform salting without a request as warranted by existing ice and snow conditions, the Court declined to find that such provision created a genuine issue of material fact as to whether Tri-Esco should have applied snow or ice removal services after February 21, 2015 on either February 22 or February 23, 2015 without Bradford’s specific request. The Court noted that the services agreement had two provisions providing that, absent two or more inches of snow, salting was to be performed by Tri-Esco only after a specific request, and the parties’ standard and past performance was for Tri-Esco to salt only upon request. The Court affirmed the trial court’s grant of summary judgment.
You can read the full opinion here.