BROWN, Judge.
In this consolidated, interlocutory appeal, Capitol Construction Services, Inc. ("Capitol") appeals the trial court's grant of partial summary judgment in favor of Amy Gray, as personal representative of the estate of Clinton Gray ("The Estate"). Additionally, Capitol appeals the court's denial of its cross-motion for summary judgment. Capitol raises three issues, which we consolidate and restate as:
We affirm.
The relevant facts as designated by the parties follow. On February 26, 2007, Capitol entered into a contract with Kroger Limited Partnership ("Kroger"), in which Capitol was to serve as the general contractor on a construction project and was to be paid a sum of $660,000. Capitol hired All One, Inc. ("All One") to serve as a subcontractor on the project performing electrical installation.
On April 17, 2008, The Estate filed a complaint against Capitol alleging negligence. On July 31, 2008, Capitol filed its answer as well as a third party complaint against All One alleging breach of contract and indemnification. On August 17, 2009, The Estate filed a motion for partial summary judgment, brief in support, and designation of evidence, arguing that "[t]here are no genuine issues of material fact that CAPITOL, as the general contractor, owed CLINTON a non-delegable, contractual duty of safety on the jobsite." Id. at 44. On September 14, 2009, Capitol filed its response to plaintiff's motion for partial summary judgment and cross-motion for
On February 1, 2010, the court granted The Estate's motion for partial summary judgment. On June 21, 2010, the court denied Capitol's cross-motion for summary judgment. This court subsequently accepted appeals from both orders pursuant to Ind. Appellate Rule 14(B) and ordered the appeals consolidated.
The first issue is whether the court erred in granting The Estate's motion for partial summary judgment. Our standard of review for a trial court's grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002).
A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.2005). If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-movant designates facts and evidence in response to the movant's motion. Id. Also, "[t]he fact that the parties made cross-motions for summary judgment does not alter our standard of review. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law." Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 875 (Ind.Ct.App.2007) (quoting Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind.Ct.App. 1997), trans. denied), trans. denied.
Capitol challenges the court's grant of partial summary judgment in which the court found that:
Appellant's Appendix at 13-14. Thus, this action sounds in negligence and specifically concerns the existence and possible delegation of a duty owed by Capitol to Clinton.
Capitol argues that: (A) it did not owe a contractual duty of care to Clinton; and (B) even if a contractual duty of care existed by virtue of its contract with Kroger, Capitol delegated its duty of care to subcontractor All One. We address each of Capitol's arguments separately.
First, Capitol argues that it did not owe a duty of care to Clinton pursuant to its contract with Kroger. Under Indiana common law, it is well established that an employer does not have a duty to supervise the work of an independent contractor to assure a safe workplace and consequently is not liable for the negligence of the independent contractor. Stumpf, 863 N.E.2d at 876. "The rationale behind this rule is that `a general contractor typically exercises little, if any, control over the means or manner of the work of its subcontractors, and requires only that the completed work meet the specifications of the owner in its contract with the general contractor.'" Id. (quoting Harris v. Kettelhut Constr., Inc., 468 N.E.2d 1069, 1072 (Ind.Ct.App.1984). reh'g denied, trans. denied).
However, Indiana case law recognizes five clearly-delineated exceptions to this general rule: (1) where the contract requires the performance of intrinsically dangerous work; (2) where one party is by law or contract charged with performing the specific duty; (3) where the performance of the contracted act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. Id. (citing Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1267 (Ind.Ct.App. 2002) (citing Hale v. R.R. Donnelley & Sons, 729 N.E.2d 1025, 1027 (Ind.Ct.App. 2000), reh'g denied, trans. denied), trans. denied).
The court based its grant of partial summary judgment on the second exception, finding that the contract between Kroger and Capitol charged Capitol with a duty of safety for all employees of the project, including the employees of subcontractors.
In The Estate's brief in support of its partial summary judgment motion, it designated to the trial court the relevant provisions of the contract and made argument as follows:
Appellant's Appendix at 48-50.
Capitol argues that the contract provisions "are insufficient to create a duty of care for the safety of" Clinton. Appellant's Brief at 10. Capitol argues that contract provisions requiring it "to follow State and Federal laws and safety regulations have been held insufficient to create a duty of safety," and that the contract's "reference to OSHA in no way alters this conclusion." Id. at 10-11. Capitol argues that the "provision requiring Capitol to be fully responsible for the acts and omissions of its subcontractors does not create a specific duty of safety," noting that it does not "use the word `safety,'" and it "merely ensures that the work is completed according to Kroger's specifications." Id. at 12. Capitol asserts that "the provision is for Kroger's benefit, and has nothing to do with the safety of strangers to the" contract, such as Clinton. Id. at 13. Capitol argues that the "provision requiring [it] to provide effective supervision does not create a duty of safety" and cites to Indiana case law stating that "the mere fact that the contractor retains certain powers of inspection and supervision does not, in and of itself, establish a duty of care for the subcontractor's employees." Id. at 14 (quoting England v. Fairfield Contracting, Inc., 908 N.E.2d 238, 243 (Ind.Ct.App. 2008)).
Capitol argues that the contract's "fall protection provision does not create a duty of safety" because Clinton "was not performing `construction work' at the time of the accident," and "[n]o `conventional fall protection' is required when working on a portable ladder." Id. at 14-15. Capitol also asserts that "because [Clinton] was not performing construction work and no conventional fall protection was required," even if the fall protection provision imposed a duty on Capitol, this court could find that, as a matter of law, Capitol did not breach its duty. Id. at 17 n. 12. Finally, Capitol argues that "[l]ooking at a contract as a whole means not only looking at what the contract says, but also looking at what the contract does not say," and that the contract here "does not say that Capitol was responsible for the safety of the subcontractors." Id. at 18. Capitol submits that "[w]hen such provisions appear, and only when such provisions appear, has this Court found that a duty of safety is created." Id.
The Estate argues that "the contractual provisions are very similar to those in Stumpf," and it suggests that therefore we should similarly find a contractual duty of care owed by Capitol. Appellee's Brief at 14. The Estate argues that this court in Stumpf also makes clear that "the contractual term `employees' includes employees of subcontractors...." Id. (citing Stumpf,
The Estate also argues that Capitol expressly agreed to a heightened standard of care when it agreed to provide fall protection for any employee performing construction work at a height of six feet or above. The Estate argues that "[s]imply put, the contract requires that any time work is being performed over six feet, that the worker be protected from falling from [sic] by means of OSHA approved fall protection," and that as a consequence "18-foot ladders should not be used." Id. at 20. The Estate argues that "[s]imply using a scissor lift with guardrails would meet this requirement," and that it is not "asserting that [Clinton] should have fall protection on a ladder; [it is] asserting that he never should be working on an 18-foot ladder in the first place," and that "[t]his is the same factual pattern as Stumpf, which also involved a fall off a ladder at a construction site." Id. at 20-21.
Capitol argues in its reply brief that "[a] thorough analysis of the contractual language at issue in Stumpf demonstrates that the language in that case was so fundamentally different from the contractual language at issue here as to render the decision ... inapplicable to the case at bar." Reply Brief at 4.
In arguing that it did not agree to a duty of care in its contract with Kroger, Capitol cites to England v. Fairfield Contracting. In England, the principal and Fairfield Contracting, Inc. ("Fairfield"), who was the general contractor, signed a contract containing three provisions relevant to the general contractor's obligations: "All work to be completed in a workmanlike manner according to standard practices;" "Contractor to provide competent on-site and in-house supervision to insure that the job progresses smoothly and meets or exceeds design criteria;" and "Contractor will provide all mobilization, field and main office supervision, all construction equipment, small tools and supplies." 908 N.E.2d at 240. England, who was an employee of a subcontractor hired by Fairfield, was severely and permanently injured on the jobsite when he fell from a scaffolding that "did not have any safety rails...." Id. At a hearing, England moved for partial summary judgment on the issue of whether Fairfield owed him a duty of safety by virtue of the contract which the trial court denied. Id. at 241. We affirmed, holding that the contract did not affirmatively evince the intent on the part of the contractor to assume a duty of care. Id. at 242-243.
In so holding, we noted that England conceded that the contract provisions were "ambiguous as to whether Fairfield assumed a duty of care to ensure that its subcontractors followed all safety rules," and insisted "that we should look to extrinsic evidence to interpret the Contract, including the testimony of two safety experts regarding the accepted meaning of this contractual language." Id. at 242. Based on this concession, we concluded that England implicitly conceded "that the document does not `affirmatively evince' an intent that Fairfield assume a duty of care." Id. Also, we reasoned that even if England did not make such a concession, "it is evident that the document does not affirmatively, explicitly, or implicitly indicate that Fairfield assumed such a duty," because the contract did not "discuss safety,
In Stumpf, we concluded that a contract between the principal and Hagerman Construction Corporation ("Hagerman"), who was the general contractor, imposed a duty of care on Hagerman, and we held that the trial court erred in granting summary judgment in favor of Hagerman. 863 N.E.2d at 880. The contract, in paragraph twenty-four of the General Conditions, provided:
Id. at 877.
In interpreting this contract provision, we examined earlier cases from this court which similarly found the existence of a duty of care by virtue of contract. First, we turned to Perryman v. Huber, Hunt & Nichols, Inc., 628 N.E.2d 1240 (Ind.Ct. App.1994), trans. denied, and we noted:
Stumpf, 863 N.E.2d at 877 (quoting Perryman, 628 N.E.2d at 1244) (internal citation omitted).
Next, we examined Harris v. Kettelhut Constr., and stated that the contract between the premises owner and the general contractor provided:
Id. at 877-878 (quoting Harris, 468 N.E.2d at 1072-1073). Additionally, the relevant contract provisions included the following:
Harris, 468 N.E.2d at 1073. As noted in Stumpf, this court in Harris held that contractor Kettelhut, "by virtue of its contract with [the premises owner], assumed a duty to maintain safety on the construction site for all employees," and also the Harris court found that the contract provisions extended that duty "to the installation of guardrails on roofing areas where the employees of [the subcontractor], including Harris, were working ...." Id.; see also Stumpf, 863 N.E.2d at 878.
We concluded in Stumpf that, similar to the contracts in Perryman and Harris, Paragraph twenty-four of the contract's General Conditions evinced "intent by the parties to charge Hagerman with a duty of care for the safety of all the employees on the project, including the employees of its subcontractors." 863 N.E.2d at 878. In so holding, we noted that all three contracts contain "similar language requiring the contractor to take precautions for the safety of employees on the work site." Id. We distinguished such contracts from the contract at issue in Helms v. Carmel High Sch. Vocational Bldg., 844 N.E.2d 562 (Ind.Ct.App.2006), aff'd in part by 854 N.E.2d 345 (Ind.2006), in which we held that a contract "requiring the general contractor to ensure that its construction `conform to all applicable laws of the State of Indiana' did not evince an intent that the general contractor had contracted to provide a safe worksite for its subcontractors." Id. (quoting Helms, 844 N.E.2d at 564). After distinguishing Helms, we concluded that:
Id.
Here, we find that the relevant contractual terms go beyond requiring that Capitol merely supervise the work of its employees and subcontractors, and instead they contain language requiring the contractor to take precautions for the safety of employees on the work site, thereby affirmatively evincing the intent on Capitol's part to assume a duty of care. Although Capitol insists that the contract does not explicitly state that Capitol is responsible for the safety of its employees and subcontractors, we find that the contract contained language similar to the contracts in Harris, Perryman, and Stumpf. Indeed, we note that the contract identifies as a part of the Contract Documents a set of "Jobsite Safety Rules" in which Capitol agreed to the following provisions:
Appellant's Appendix at 113. Capitol also agreed, in Article 5 of the contract's General Conditions, that it would "comply with all laws, ordinances, rules and regulations bearing on the project" and that it would "maintain physical conditions and employee performance on the jobsite during the course of construction to conform with all local and federal laws, rules and regulations including those covered by the Occupational Safety and Health Act of 1970." Id. at 99 (emphasis added). Thus, much like the general contractor in Stumpf, we find that Capitol agreed to comply with and administer the proper OSHA standards and that Capitol specifically agreed to be responsible for the safety of the jobsite employees.
Also, much like the contractor in Harris, Capitol agreed, in Paragraph 7 of the Agreement section of the contract, to provide and require a specific safety precaution at the jobsite in "the use of conventional fall protection," which includes "personal fall arrest systems, safety net systems or guardrail systems," for any "employees or subcontractors [] performing construction work that is in excess of six feet above a lower level." Id. at 96, 288. The specifications, as incorporated by Paragraph 7, are defined by 29 C.F.R. § 1926.502; § 1926.502(b) provides specifications for guardrail systems, § 1926.502(c) provides specifications for safety net systems, and § 1926.502(d) provides specifications for personal fall arrest systems. The significance to Kroger of Paragraph 7 was underscored in Part C of the Jobsite Safety Rules, in which this requirement was repeated almost verbatim. Clinton died when he fell from a portable ladder at a height of eighteen feet, and the designated evidence does not indicate that, at the time of this fall, he was utilizing a guardrail, safety net, or personal fall arrest system.
Having determined that Capitol owed Clinton a duty of care, we next must determine whether Capitol delegated its duty to subcontractor All One.
Appellant's Appendix at 79.
Opinions of both the Indiana Supreme Court and this court have repeatedly stated that "[t]he duties associated with Indiana's five exceptions are considered non-delegable, and an employer will be liable for the negligence of the contractor, because the responsibilities are deemed `so important to the community' that the employer should not be permitted to transfer these duties to another." Bagley v. Insight Commc'ns Co., L.P., 658 N.E.2d 584, 587 (Ind.1995); see also Stumpf, 863 N.E.2d at 876-877; Ryobi Die Casting v. Montgomery, 705 N.E.2d 227, 229 (Ind.Ct.App.1999), trans. denied; Harris, 468 N.E.2d at 1076-1077 (noting that even if the contract did not contain a nondelegation clause, any possible delegation by the defendant would not "relieve it of potential liability for failing to provide guardrails at the staging area") (citing City of Anderson v. Fleming, 160 Ind. 597, 67 N.E. 443 (1903) (holding that city remained jointly liable with a contractor for the injuries caused the plaintiff by the contractor's failure to fulfill its contractual duty to keep the sidewalks safe)); see also England, 908 N.E.2d at 243 ("[T]o the extent that the instruction implies that a duty of care is delegable, we note that the jury was explicitly instructed that if Fairfield retained control over the safety practices of its subcontractor or evinced an affirmative intent in a contract to do so, then Fairfield may be solely liable for a failure to adequately perform that duty."). The trial court similarly found that Capitol's duty was non-delegable.
Capitol argues, however, that the Indiana Supreme Court abrogated the nondelegability aspect of the five exceptions to the general common law rule in Vaughn v. Daniels Co., 841 N.E.2d 1133 (Ind.2006), reh'g denied. Capitol, who at one point in its brief cites to this court's vacated Vaughn opinion, argues that Capitol "clearly assigned [All One] the duty of care for the safety of its employees" via the subcontract. Appellant's Brief at 24. Capitol also cites to numerous out-of-state cases and claims that each of these opinions "have interpreted the same or similar provisions and have uniformly held that
The crux of Capitol's argument, though, centers upon the following statement from the Indiana Supreme Court's decision in Vaughn:
841 N.E.2d at 1145.
In Vaughn, however, as indicated in the quotation above, "[n]o formal contract was ever executed between Daniels and Solar," and "[t]he arrangement was documented" by a proposal prepared by Daniels entitled "Design, Procurement, and Construction of the Cannelburg Preparation Plant for Solar Sources, Inc." Id. at 1137. Additionally, the Vaughns relied upon another document entitled "Defendant Daniels Health and Safety Policy," which was referenced in an affidavit they designated. Id. To this end, the Court in Vaughn concluded that the five exceptions to the general rule that a contractor is not liable for the negligence of its subcontractors did not apply. Indeed, the Court's discussion of this issue was limited to a single paragraph in which it acknowledged that "[t]he parties agree that there was no written contract between Solar and Daniels," and states that, based upon Daniels's proposal, the Vaughns argued "that the terms and conditions of the arrangement between Solar and Daniels as they relate to the construction site and to Daniels's responsibilities are questions of fact for the jury to decide." Id. at 1145. After disagreeing with the Vaughns' contention and noting that any supposed duty of safety from the implied contract was delegated to subcontractor Trimble, the court concluded: "The Vaughns have designated nothing to raise an issue of fact to establish a contractual duty on the part of Daniels."
Simply put, we do not believe that the Vaughn Court, especially when viewed in the proper context, meant to abrogate well-established, long-standing Indiana precedent that duties assumed pursuant to the five exceptions are non-delegable because the responsibilities are deemed so important to the community that the party assuming such a duty should not be permitted to transfer those duties to another. Accordingly, we conclude that the court did not err in determining that Capitol's duty of safety was non-delegable.
For the foregoing reasons, we affirm the trial court's grant of partial summary judgment in favor of The Estate and denial of summary judgment in favor of Capitol.
Affirmed.
BAILEY, J., concurs.
FRIEDLANDER, J., concurs with separate opinion.
FRIEDLANDER, Judge, concurring.
I fully concur in the decision to affirm partial summary judgment in favor of the Estate of Clinton Gray (the Estate) and deny summary judgment in favor of Capitol Construction Services, Inc. I write separately to explain my view that my vote in this case does not conflict with my vote in Hunt Constr. Grp., Inc. v. Garrett, 938 N.E.2d 794 (Ind.Ct.App.2010), which was vacated and is currently before our Supreme Court upon the grant of Hunt Construction Group's (Hunt's) petition for transfer. See Hunt Constr. Grp. v. Garrett, 950 N.E.2d 1212 (Ind.2011) (petition for transfer granted and opinion at 938 N.E.2d 794 vacated).
In Hunt, Shannon D. Garrett was an employee of Baker Concrete Construction, Inc., working at a jobsite at which Hunt served as construction manager. Garrett was injured when she was struck by a piece of forming material that was being removed by another employee of Baker Concrete. Garrett sued Hunt on grounds that it had assumed a nondelegable duty to her through its contract with the owner of the property on which the jobsite was located, and on grounds that it had assumed a duty to her through its conduct. The trial court granted summary judgment in favor of Garrett on both grounds with regard to the question of duty. I dissented from the panel's decision that the trial court properly ruled against Hunt on the question of its liability via contract.
The majority in that case concluded that Hunt was liable under the contract between Hunt and the owner of the jobsite because the contract contained provisions that gave Hunt "significant duties regarding safety on the jobsite." Hunt Constr. Grp., Inc. v. Garrett, 938 N.E.2d at 804. I dissented upon my view that the majority essentially ignored provisions in the contract that clearly limited Hunt's liability for jobsite safety, thereby negating the element of duty with respect to the claims of the subcontractor's employee. Such limiting language included the following: (1) Various documents stated that Hunt's duties were undertaken "[w]ithout assuming the safety obligations and responsibilities of the individual contractors," one of whom was Baker Concrete, id. at 805; (2) one provision provided that Hunt "shall not have control over or charge of or be responsible for ... safety precautions and programs in connection with the Work of
I continue to adhere to the view that a general contractor or construction manager may shield itself from liability arising from a duty of care to onsite subcontractor employees, even when certain provisions of its contract with the owner charge it with duties pertaining to onsite safety measures, including enforcing OSHA safety requirements and offering safety programs. It does this by inserting language into the relevant contracts explicitly disclaiming duties concerning onsite safety with respect to all parties except the owner, most notably including subcontractors. It remains to be seen whether the Supreme Court will agree with my view as expressed in Hunt.
With respect to the instant case, however, the relevant contracts contained none of the limiting provisions I found dispositive in Hunt. For this reason, I fully concur in the affirmance of partial summary judgment in favor of the Estate and denial of summary judgment in favor of Capitol Construction.
Also, we note that, regarding Capitol's suggestion that it did not owe a duty to Clinton because he "was not performing `construction work' at the time of the accident," due to our conclusion that Capitol owed Clinton a duty of safety, this argument is more properly examined in deciding whether Capitol breached its duty. However, we also note that Capitol's citations to authority regarding what constitutes "construction work" differentiate between purchasing land versus constructing upon land, rather than discussing whether work performed at a jobsite may be considered construction work. See S. Ind. Ry. Co. v. Indianapolis & L. Ry. Co., 168 Ind. 360, 372, 81 N.E. 65 (1907) ("Construction is building. Building a road-constructing a road. This certainly does not include buying the ground on which to build and construct it. Buying a piece of ground is not a part of constructing a house."); Ogilvie v. Steele by Steele, 452 N.E.2d 167, 170 (Ind.Ct.App.1983) ("Chicago Railroad's lease with Conrail is not a `construction contract' within IC 26-2-5-1. The crux of the lease is to authorize Chicago Railroad's use of Conrail's railroad tracks. It does not require Chicago Railroad to build anything in connection with its use of the tracks. Therefore, the lease is not a `construction contract' pursuant to IC 26-2-5-1"); Montgomery v. Bd. of Zoning Appeals of Lake Cnty., 135 Ind.App. 437, 442, 193 N.E.2d 142, 144 (1963) ("Construction is building") (quoting Lutz v. New Albany City Plan Comm'n, 230 Ind. 74, 81, 101 N.E.2d 187, 190 (1951)).
Finally, to the extent that Capitol asserts that "[n]o `conventional fall protection' is required when working on a portable ladder," we note that the contract specifically requires that Capitol provide workers performing construction work on the jobsite with conventional fall protection whenever they are working at a height in excess of six feet.
However, All One has filed a brief noting that it has "filed a counterclaim for declaratory judgment" regarding whether a written agreement existed on May 21, 2007, between Capitol and All One, and that "[t]hus, Capitol Construction's Statement of Facts regarding application of provisions of an alleged sub-contract are incorrect." All One's Brief at 1. All One also filed an appendix containing its counterclaim. All One argues that "[t]he trial court below has not determined the nature of the contractual relationship between All One and [Capitol], if any," and that "the assumption that there was an agreement is inappropriate at this time and the Court of Appeals should not allow such a determination by implication creating the possibility of applying the doctrine of law of the case." Id. at 2. Specifically, All One takes exception to footnote 13 of Capitol's brief which states: "[The Estate] at one point argued, without support, that the Subcontract post-dated the accident. However, [The Estate] designated the Subcontract as being `entered into ... on April 1, 2007,' before the accident. Therefore, the designated evidence is that the contract was entered into prior to the date of the accident." Appellant's Brief at 23 n.13; see also All One's Brief at 2-3. Capitol filed a separate reply brief in response to All One's brief and argues that "All One has waived all arguments raised in its Brief" because it "did not make these arguments to the Trial Court" and it "relies on documents that were never designated to the Trial Court." Capitol's Reply to All One at 1.
Initially, we note that Capitol is correct that All One's counterclaim for declaratory judgment was not properly designated and thus we may not consider this evidence. See P.R. Mallory & Co., Inc. v. Am. Cas. Co. of Reading, PA., 920 N.E.2d 736, 755 (Ind.Ct.App.2010) ("Because the portion of the deposition relied upon by the Plaintiffs on appeal was not properly designated to the trial court, we cannot consider such evidence."), trans. denied; see also Ind. Trial Rule 56(C) ("At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion."). However, to the extent Capitol argues that the designated evidence does not provide support for All One's position, we note that the designated evidence contains multiple versions of the contract signed by Capitol and All One in which the date of the agreement appears to be the only differing item.
Thus, even were we to find that Capitol could have delegated its duty of care to All One, there is an underlying factual issue of whether a contractual relationship existed between Capitol and All One on May 21, 2007. Rhodes, 805 N.E.2d at 386 (citing Douglass v. Irvin, 549 N.E.2d 368, 369 n. 1 (Ind. 1990) ("While it is clear that the trial court must determine if an existing relationship gives rise to a duty, it must also be noted that a factual question may be interwoven with the determination of the existence of a relationship, thus making the ultimate existence of a duty a mixed question of law and fact.") (quoting Clyde E. Williams & Assocs. v. Boatman, 176 Ind.App. 430, 435, 375 N.E.2d 1138, 1141 (1978))).
