Construction law is an orphan, of sorts, among Indiana trial attorneys. The Indiana State Bar Association does not have a special section or committee that focuses on construction law. Workman’s compensation laws prevent many tort actions from moving forward. And the Indiana Supreme Court, until 1995, has rarely addressed issues concerning construction law.

But the times, and the laws, might be changing, according to one Indiana plaintiff’s attorney. Bill Conour, a lawyer at Indianapolis firm Conour Doehrman, said two recent Supreme Court decisions have defined the status of construction law for Indiana plaintiff’s attorneys.

Justice Brent Dickson, authoring the Dec. 7, 1995, decision Max Bagley, et al v. Insight Communications broached the topic of liability for general contractors and owners when employees of sub-contractors are injured while at a work site.

The Indiana Court of Appeals, in Patricia Perryman et al v. Huber Hunt & Nichols, touched a similar topic in 1994. The appellate court ruled that a construction firm, Huber Hunt & Nichols, which entered a construction management agreement to oversee the Bank One Tower project in Indianapolis, maintained a duty to enforce state and federal safety regulations for all workers – even those employed by a sub-contractor.

Conour said the rulings might shed more light on a quickly growing area of law.

"Some lawyers don’t understand the rights of employees to sue owners," Conour said recently from his Indianapolis office. "They are not familiar with the safety standards of OSHA (Occupational Safety and Health Administration) and ANSI (American National Safety Institute). Contractors have a duty to provide safety."

Workman’s compensation laws prevent employees from seeking further damages from their employers. But tort laws – affirmed by Indiana’s appellate courts, according to Conour – allow injured employees, or their families, to seek damages when general contractors fail to enforce all safety standards.

Bagley v. Insight Communications centered on a worker, Max Bagley, who suffered severe brain damage after a ladder holding another worker slipped on ice and fell on Bagley, driving his head into a protruding rod.

Justice Dickson, who authored the unanimous opinion, wrote, in part, "Where a contractor’s employer is responsible for a non-delegable duty, the contractor’s injured worker should not discriminately be deprived of access to full compensatory damages but should have recourse equal to that of an injured bystander.

"Likewise, to the extent that an injured worker’s awareness of a job-related risk may be greater than that of a non-worker, substantial fairness and equal treatment are ensured because in a worker’s action against the contractor’s employer, any incurred risk on the part of a worker will be reflected in a proportionately reduced damages award under our comparative fault statute."

The Bagley decision, according to one Indiana plaintiff’s attorney, has helped crystallize the state’s construction laws.

"The importance of Bagley was that the case law was confusing about when a general contractor or owner may have a non-delegable duty of safety," said Richard Dick, a lawyer at Indianapolis firm Mitchell Hurst Jacobs & Dick. "Bagley has clarified the circumstances under which an injured construction worker may have a claim either against the general or prime contractor."

"Now, because of Bagley, if work is hazardous, a worker may have a claim against a general contractor or owner even though there is no specific statute that creates a duty of safety," Dick said.

Michael Cord, a Kokomo attorney with limited construction law experience, said Bagley will primarily affect major construction sites. Smaller construction projects often are manned by just one contractor, according to Cord, a lawyer at Bayliff Harrigan Cord & Maugans.

In Perryman, meanwhile, the widow of a construction worker who died after a 90-foot fall from the Bank One Tower in Indianapolis, sued the construction firm because safety nets were not provided.

Judge John Baker, authoring a unanimous opinion, said the general contractor, because of a contractual agreement, is responsible for maintaining state and federal safety regulations.

Conour said the decisions clarify some gray areas of construction tort law. Too many general contractors, according to Conour, have tried to "pass the buck" of blame for safety liability to sub-contractors.

The Indianapolis attorney said contractors and sub-contractors often are co-liable.

"A perfect analogy would be an Army general blaming the soldier simply because he did not have a howitzer," Conour said, "Bagley says there is co-liability. I think the decisions clarify what the laws always should have been. The court of appeals was wrong (in early decisions) to try to relieve liability from the general contractors."