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Gleaves v. Messer Construction Co.

Court of Appeals of Indiana

June 13, 2017

Mark Gleaves, Appellant-Plaintiff,
v.
Messer Construction Company and PERI Formwork Systems, Inc., Appellees-Defendants

         Appeal from the Marion Superior Court The Honorable James A. Joven, Judge Trial Court Cause No. 49D13-1211-CT-44519

          ATTORNEYS FOR APPELLANT Christopher G. Stevenson William E. Winingham Wilson Kehoe Winingham LLC Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE MESSER CONSTRUCTION COMPANY Mark D. Gerth Michael Wroblewski Louis J. Britton Kightlinger & Gray, LLP Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE PERI FORMWORK SYSTEMS, INC. Scott S. Morrisson Blake P. Holler Krieg DeVault LLP Carmel, Indiana Libby Yin Goodknight Krieg DeVault LLP Indianapolis, Indiana Michael J. Halaiko Jonathan A. Singer Miles & Stockbridge, P.C. Baltimore, Maryland

          Baker, Judge.

         [¶1] On October 9, 2012, Mark Gleaves, a construction worker employed by Whittenberg Construction ("Whittenberg"), was working at the construction site of the Indiana University Neuroscience Building when a sixteen-foot-long 2x4 lumber infill struck him in the head, inflicting serious injury. Whittenberg was a concrete contractor; Messer Construction Company ("Messer") was the construction manager of the construction project; and PERI Formwork Systems, Inc. ("PERI"), was the manufacturer of the formwork Whittenberg was using to form the walls of the building. Gleaves sued Messer, alleging that it had assumed a duty of reasonable care for his safety on the jobsite and that it breached that duty, and PERI, alleging that it failed to provide adequate warnings and instructions to end users and that it was not an open and obvious danger that lumber infills could eject during the removal process and strike a person standing a safe distance away. The trial court granted Messer's motion for summary judgment, finding that Messer did not owe a duty to Gleaves, and PERI's motion for summary judgment, finding that because the hazard of this construction process is open and obvious, PERI did not have a duty to warn users about the dangers in the use of PERI forms. Gleaves now appeals. Finding no error, we affirm.

         Facts[1]

         The Accident

         [¶2] Messer contracted with Indiana University ("IU" or "Owner") for construction management services for the construction of the Neuroscience Building in Indianapolis. Whittenberg also contracted directly with IU to perform concrete work on the building. Whittenberg has performed concrete construction work using concrete formwork at more than one hundred jobsites, and it has used PERI-brand formwork in nearly all of its jobsites over the last fifteen years.

         [¶3] PERI manufactures and supplies formwork systems for concrete contractors' use in forming new concrete structures until the structures harden and become self-supporting. PERI manufactured and supplied the formwork system that Whittenberg used in this construction project. A PERI form is used to pour concrete walls; the system includes the use of infills to bridge gaps in the formwork. To set PERI forms, large panels are used first; progressively smaller sized panels are then used until the gap is small enough to fill with a lumber infill. Whittenberg supplied the lumber and materials for the infills, and Whittenberg's carpenters made the infills on the construction site. PERI does not track the construction sites at which its forms are used; at this construction site, Whittenberg controlled the use of the PERI forms, including their location, installation, and removal.

         [¶4] Gleaves's general duties at the construction site involved cleaning up after the carpenters, cleaning concrete forms, assisting with concrete pours, and retrieving discarded lumber infills used by Whittenberg. Gleaves had prior experience working on forming concrete walls, but he had not worked with PERI concrete forms before this construction project. When Gleaves began working on the construction project, Whittenberg had him watch a video about PERI forms. Whittenberg provided Gleaves with personal protection equipment, including a safety harness and a hard hat; it also held weekly and monthly safety meetings for its employees.

         [¶5] On October 9, 2012, a crane was wrecking a section of formwork away from a concrete wall. "Wrecking" is a term of art in the concrete construction industry that involves the dismantling of the formwork used to form a concrete structure after the concrete has cured. Part of the wrecking process involved Whittenberg employees pushing to the ground unsecured lumber infills before removing the PERI forms with overhead cranes and taking them to another area.

         [¶6] Gleaves was working in a trench at the construction site patching tie holes in the concrete walls and picking up material in the trench. As the formwork was pulled up and away by the crane, a sixteen-foot 2x4 lumber infill was ejected from the form being lifted and struck Gleaves in the head while he was in the trench. No audible warning signal was given before the crane lifted the form that struck Gleaves. Prior to the accident, Gleaves did not see the crew above him wrecking the form that led to the accident.

         The Contracts

         [¶7] Under Messer's contract with IU, Messer's duties were owed to IU and not to any contractors or other third parties. The contract included the following provisions about safety at the construction site:

• Messer was to provide on-site administration of the construction contract.
• Messer was to use its best efforts to obtain satisfactory performance from each contractor, to recommend courses of action to IU when requirements of the construction contract were not being fulfilled, to determine that the work of each contractor was being performed according to the requirements of the construction contract, and to notify IU and the contractor of defects and deficiencies in the work.
• With respect to each contractor's own work, Messer did not have control over or charge of nor was responsible for construction means, methods, techniques, or safety precautions and programs in connection with the work of each contractor because these things were solely the contractor's responsibility under its contract.
• Messer did not have control over or charge of acts or omissions of the contractors or any other person performing work not directly employed by Messer.
• Messer was required to provide and maintain an effective safety program. Each contractor was required to conform to Messer's Safety, Health and Environmental Program and its Safety4Site Program.
• Every worker was required to attend a safety orientation before working on the site. The orientation was to take place in Messer's trailer.
• If a contractor did not re-erect a barricade or safety device after the completion of a work activity, Messer would perform the work.
• Upon notification of a safety deficiency, the contractor responsible was to use any and all means necessary to correct the situation immediately. Messer could remove the contractor's employee or ...

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