By Lonnie D. Johnson and Samantha A. Mitchell Clendening Johnson & Bohrer, P.C.
409 W. Patterson Drive, Suite 205
Bloomington, IN 47403
[email protected]
[email protected]
COMPARATIVE FAULT AND VICAROUS LIABILITY BY ASSUMPTION OF DUTY
Under Indiana law, all tort actions for personal injury, including construction actions, are subject to Indiana’s Comparative Fault Act. I.C. § 34-20-8-1. Under Indiana’s Comparative Fault Act “Comparative Fault Act”, I.C. § 34-51-1, et. seq., the jury apportions fault for Plaintiff’s damages to Plaintiff, each defendant and each non-party identified in the pleadings. If Plaintiff’s fault exceeds 50%, then a defense verdict is entered. Otherwise, each defendant is responsible for—and only for—that portion of the damages awarded in relation to its fault, and Plaintiff’s award of damages is reduced by all fault assessed to Plaintiff as well as any identified non-parties. An injured construction worker cannot bring an action directly against his employer to recover for personal injuries. I.C. §22-3-2-6. However, pursuant to Indiana’s Comparative Fault Act, an employer can be named by the named defendants as a “non-party” whose fault caused or contributed to plaintiff’s injuries. I.C. §34-6-2-88. The Comparative Fault Act does not restrict an injured employee from pursuing a claim against any “other person than the employer.” Ind.Code § 22–3–2–13 (2007). Hunt Const. Grp., Inc. v. Garrett, 964 N.E.2d 222, 224 (Ind. 2012). As a general rule, “a general contractor […] will ordinarily owe no outright duty of care to a subcontractor’s employees, much less so to employees of a sub-subcontractor. This means that when a subcontractor fails to provide a reasonably safe workspace, the general contractor will not incur liability for employee injury, even when such injury is proximately caused by the subcontractor negligence.” Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908,913 (Ind. 2017).