By: William E. Kelley, Jr., LEED AP
Construction site safety is a critical part of every contractor’s role on a construction project, especially as it relates to the safety of a contractor’s own employees. However, when an employee of another contractor on the construction site is injured, legal questions arise as to which contractors and subcontractors, if any, may have a legal duty to that individual worker, such that the worker can sue the contractor directly for causing or contributing to the injuries. A recent decision by the Indiana Court of Appeals analyzed two sets of contract provisions on construction safety, coming to opposite conclusions.
In Shiel Sexton Company Inc. v. Towe (Ind. Ct. App. August 24, 2020), the Indiana Court of Appeals addressed a negligence claim brought by a temporary employee of a material supplier against the project’s General Contractor and one of the Subcontractors. The worker was injured when a boom crane experienced a leak in the hydraulic line, causing the boom to tip and resulting in a bundle of metal studs falling on the worker. In terms of the “chain of contracts” on the project, the parties were situated as follows:
The worker’s claim against the Supplier was legally barred because of Indiana’s worker’s compensation statutes and the immunity provided to employers for claims of general negligence. Thus, the worker sought to hold the General Contractor and Subcontractor liable for causing the accident and resulting injuries. The worker’s legal theory was not that the General Contractor or Subcontractor directly caused the accident, but rather—based on prior Indiana case law—that the contractors had assumed a non-delegable legal duty for jobsite safety on the construction project by virtue of their respective contracts. Therefore—the injured worker argued—the contractors could be held vicariously liable for any acts or omissions by others on the jobsite, including the Supplier and the injured worker’s co-workers.
In analyzing the two contracts at issue (one between the Owner/General Contractor, and the second between the General Contractor/Subcontractor), the Indiana Court of Appeals reached two different results.
First, as to the General Contractor, the court of appeals noted that the contract language included the following statement: “The safety and health of Contractor or Contractor’s employees, subcontractors and agents brought on Owner premises are and will be the sole responsibility of Contractor.” However, the court noted that there were no other provisions in the contract related to project-wide safety obligations, any responsibility by the General Contractor to oversee all site safety measures by other entities, or any language that suggested that the General Contractor intended to assume a legal duty to the employees of a downstream material supplier who was working on the construction site. Reading the contract language as a whole, the court concluded that the General Contractor did not assume a non-delegable duty for construction safety that would allow the injured worker to sue the General Contractor for alleged negligence. Therefore, the injured worker’s claim could not proceed against the General Contractor.
Second, as to the Subcontractor, the court of appeals noted that—unlike the Owner/General Contractor contract—the General Contractor/Subcontractor agreement contained multiple contractual provisions that specifically addressed the Subcontractor’s responsibilities for site safety. The court noted that the “common thread” amongst the court cases in Indiana finding that a contractor assumed a duty of care, were contracts containing requirements for the contractor to: (1) take precautions for safety of employees; (2) comply with applicable law and regulation; and (3) designate a member of its organizations to prevent accidents. Applying those factors to the Subcontractor’s contract, the court concluded that the contract contained all three elements of those “common thread” requirements. As a result, the court of appeals ruled that the Subcontractor assumed a non-delegable duty for safety, including a duty for safety of the employees of “other persons” on the jobsite. Therefore, the injured worker’s claim could proceed against the Subcontractor.
The lesson for all entities involved in construction projects is to carefully review and understand contractual provisions related to jobsite safety, especially as it may relate to potential liability to the employees of other entities, contractors, or suppliers on the jobsite. Prudent contractors will also incorporate comprehensive risk management provisions into their agreements to address proper insurance coverage, additional insurance requirements, indemnity provisions, and other potential risk-shifting clauses to help mitigate the legal risk on these types of claims.
If you have questions about construction site safety liability, contact your DSV attorney or William E. Kelley, Jr at wkelley@dsvlaw.com.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***