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
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.
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
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
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
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.
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.
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
• 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 ...