Is a G C liable for job site injuries suffered by the employee of one of the subcontractors?

 In Mechanic’s Lien Law Updates and News

In most states, no. There is a major distinction between hiring an employee and an independent contractor. With the former situation, under respondent superior, the employer is liable for the employee’s injuries because of the extent of control exercised by that employer. But when you hire an independent contractor, such as a specialty subcontractor, you have no right to control the course of work and therefore that sub himself or herself is liable for damages caused to their labors and employees.

This was borne out in the recent California Supreme Court decision of SeaBright Ins. Co. v. U.S. Airways, Inc. (2011). The court laid out the familiar California Privette– Toland doctrine stating:

“Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work…. By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.”

One of the reasons for this ruling is the availability of workers’ compensation to the injured employee:

“[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor….”

Because the workers’ compensation law exempts an independent contractor from negligent tort liability to its employees, “[a]pplying the peculiar risk doctrine [allowing suit against the hirer] to the independent contractor’s employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury.”

In that case, when a masonry subcontractor employee was injured slipping on a plastering subcontractor’s wet scaffolding, the laborer sued the GC claiming it was caused by the GC’s negligence in sequencing and coordinating construction work at the site. The court disagreed.

But to be safe, it is recommended that you include language in your subcontracts, to the effect: “ Subcontractor shall be solely responsible for injuries sustained to its employees, including as a result of any job site conditions, and subcontractor is cautioned to take all measures and actions to insure its employees are free of any unreasonable risk of harm. As a consequence, General Contractor’s employees or job site foreman shall not be responsible thereof.”

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