In Indiana, a contractor may be liable for injuries caused by its work even if the contractor performed the work in accordance with plans and specifications and the owner has accepted it, if a court determines that the work is reasonably certain to endanger third parties. In Bond v. Walsh & Kelly (Ind. App. 2007), 869 N.E.2d 1264, the Court of Appeals followed this rule in determining that a paving contractor could be liable for the injuries sustained by third parties in an accident one week after the owner accepted a project.

The accident occurred when the plaintiff was a passenger in a jeep traveling on a newly repaved section of Randolph Street in Merrillville, Indiana. At one point, the jeep dropped off the edge of the pavement and onto the shoulder, a drop off left by the paving contractor, Walsh & Kelly, who had just completed the repaving a week earlier. The accident caused the passenger side of the jeep’s windshield to hit a utility pole, seriously injuring the passenger.

He sued the driver, the Town of Merrillville, and Walsh & Kelly. When the trial court directed an entry of summary judgment for Walsh & Kelly, the passenger appealed.

The Indiana Supreme Court changed the law regarding negligence actions and the work of contractors in 2004. Before 2004, the rule was simple—a contractor did not owe a duty of care to third parties after the owner has accepted the work. However, in Peters v. Forster (Ind. 2004), 804 N.E.2d 736, the Indiana Supreme Court changed the rule to what is called the “foreseeability doctrine.” This doctrine dictates that “a contractor is liable for injuries or death of third persons after acceptance by the owner where the work is reasonably certain to endanger third parties if negligently completed.”

The Indiana Supreme Court had described this new doctrine in terms of negligence. Therefore, plaintiff must still establish the elements of negligence: a duty owed to the plaintiff; a breach of that duty by the defendant; and a causal link (referred to in legalese as “proximate cause”) between that breach and the plaintiff’s injury.

However, the Indiana Supreme Court limited the liability of contractors by stating that performing a contract is not in itself negligence if the contractor merely follows the plans or specifications given to him by the owner. In order to establish a breach of a duty, the plans must be so obviously dangerous or defective that no reasonable contractor would follow them.

Applying this new rule to the evidence presented, the appeals court affirmed the trial court’s summary judgment in the contractor’s favor.

According to the court, the plaintiff made no assertion that the plans for the repaving performed by Walsh & Kelly were, on their face, obviously dangerous or defective, or that any work performed by Walsh & Kelly was performed in a negligent manner.

The court also focused on the testimony of the plaintiff’s expert witness, who described how the work should have been performed. In his affidavit, the expert opined that a center line and an edge line should have been in place to demarcate the roadway lanes, and that barrels or other traffic control devices should have been placed in the shoulder until the shoulder was permanently filled. But all the work described by this expert was outside the scope of Walsh & Kelly’s contract.

In fact, the evidence showed that the Town of Merrillville was responsible for striping the road and placement of the shoulder stone. Witnesses for the Town of Merrillville had testified that Walsh & Kelly’s work was complete when it finished the repaving portion of the work. So, even applying the “foreseeability doctrine,” the Court of Appeals upheld the judgment in the contractor’s favor.