When Is A General Contractor Liable For The Injuries Of An Employee Of A Subcontractor
June, 2007
A common question in construction litigation arises when an employee of a subcontractor is injured on a jobsite and seeks to recover monetary damages from the general contractor (hereinafter “GC”). A recent Illinois case from the First District Appellate Court provides some insight into the question, and, importantly, suggests specific steps a GC can and should take to minimize its exposure.
Facts
In Joyce v. Mastri, 861 N.E.2d 1102 (Ill.App. 1st Dist., 2007) the plaintiff, an employee of a subcontractor on a worksite, suffered injuries when he fell off a ladder while in the course of his employment. The plaintiff filed suit against the GC of the site alleging common law negligence. Specifically, the plaintiff alleged the GC had a duty to prevent the injuries based on the following factors: 1) the contract with the plaintiff’s employer; 2) the GC’s retention and control over certain aspects of the subcontractor’s work;
3) the GC’s contract with the Federal government and OSHA requirements, and 4) as the possessor of the land where the plaintiff was injured.
Analysis
The court addressed each of the plaintiff’s arguments. The first issue was whether the GC owed a duty of care to the plaintiff because the GC retained “contractual and actual control” over plaintiff and his work. The theory is based upon the Restatement (Second) of Torts §414 (1965), which states:
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”
The court found that the most significant factor in such analysis is the contract between the parties. The agreement in question made the subcontractor responsible for jobsite safety, and the GC took no active role in ensuring the safety of other individuals. The court also noted the GC reserved a general right of supervision over the worksite but did not retain control over the incidental aspects of the independent contractor’s work.
The court held the GC did not direct the “operative details” of the independent contractor, and the contractor was free to perform the work “in its own way,” without direction of the GC. As such, the GC was not liable to plaintiff on the “control” theory.
The court’s analysis did not end with this inquiry. The plaintiff also alleged that the contract between the GC and the government “imposed nondelegable safety standards under OSHA and its regulations” and therefore created a duty of care.
The Occupational Safety and Health Act of 1970 (OSHA) created a government program to enforce compliance with Federal occupational safety and health standards by employees in the private sector. 29 U.S.C. §651, 654 (2000). However, the court noted that OSHA explicitly states that it does not enlarge, diminish, or in any way affect any common law or statutory rights regarding injuries to employees arising out of or in the course of their employment. 29 U.S.C. §653(b)(4) (2000). In other words, OSHA merely created a government program to enforce safety matters, and did not create a separate duty of care amongst private parties.
The plaintiff, cognizant of this general rule, attempted to circumvent this hurdle by arguing the contract between the GC and Federal government prohibited the GC from delegating its responsibilities for safety and control on the worksite. The court was unconvinced. The plaintiff did not cite any authority that would suggest a GC is prohibited from delegating its safety duties because a project is federally funded and/or on federal property. The focus remained on the actual contract between the GC and subcontractor, and the court concluded the GC had delegated the actual control over the incidental aspects of the plaintiff’s work performed by the subcontractor. As such, OSHA did not create a separate duty on the defendant, and the injured employee could not recover on the basis of alleged violations of the OSHA code.
The final argument considered was the GC’s duties to the plaintiff as the owner or possessor of the land upon which the injury occurred. The court concluded that the danger posed to the plaintiff -- falling off of a ladder -- was open and obvious. Furthermore, the plaintiff failed to present evidence that the GC knew or should have known of any dangerous conditions in the area where plaintiff was working. As the plaintiff did not produce sufficient evidence to the contrary, the defendant was entitled to summary judgment on all issues.
Learning Point
A GC should take two simple, albeit important, steps to insulate itself from potential liability to an employee of a subcontractor on a jobsite.
First, the contract language should state that the GC is not responsible for the safety of individuals on the job site who are employees of a subcontractor. Equally important, the contract should state the GC is not responsible for the methods the subcontractor utilizes to complete its’ work. Secondly, the GC should ensure that these contract provisions are actually followed. The safety meetings conducted on site should concern general working conditions as opposed to the work delegated to other contractors. Specifically, the GC should not advise the subcontractor on how to perform its job; the focus should be on the ultimate result, not the methodology used by the subcontractor to reach the desired end.
