Duty to Protect a Subcontractor’s Employee

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who says “my son was delivering concrete blocks to a construction site, and was near an excavating machine, when a hydraulic line gets caught on a metal rod and bursts and caused the excavating machine to spill a load of soil on my son’s leg, causing a compound fracture, he’ll be off work for 6 months, what are his options?”

One of the most difficult things to sort out when there is a construction site injury is who bears fault for the injury, and secondarily, what company has insurance to cover the damages flowing from worksite negligence.

As we have noted in other podcasts, if the worker is injured on a construction site they have a claim for workers compensation against their employer. But, the recovery under workers compensation is limited and allows no opportunity to recover for pain and suffering.

An experienced attorney will help the worksite injury victim find other sources of recovery beyond workers compensation.

If a person works for a subcontractor on a construction site the work of the attorney will center on finding out if the general contractor on the site assumed a contractual duty to provide for worker safety.

The attorney will also focus on other subcontractors who may have contributed to cause the injury, to see if that sub also assumed a duty regarding worksite safety.

Here is a typical scenario, a factory owner hires a general contractor to remodel the factory, who in turn hires several subcontractors, to help with the job. Thus, where a person delivering materials to a worksite gets injured, several contractors may have played a role in the injury.

Typically, that owner will require in the project contract, that the general contractor assume responsibility for site safety. But the general contractor will want to make sure that everybody working onsite is safe, so they typically will make sure that the contracts signed by the subs has a provision requiring the subs’ employees to follow safety rules and to watch out for other employees of other subs that might get in the way and be exposed to a worksite danger.

This makes great sense because safety overall should be the highest responsibility of all of the parties working at a construction site.

The experienced attorney will want to obtain and review every contract and every addendum to every contract. The language has to be examined with a fine-tooth comb. This can be a lengthy time-consuming process.

Sometimes contract language is ambiguous. Here are the factors the attorney should be looking for:

(1) Does the contract that was entered into contain language by which a contractor assumed a non-delegable duty to protect all individuals working on the construction site? And

(2) Does the contract contain language by which a party assumed a non-delegable duty to protect the employees of third-party suppliers of materials at the construction site?

Generally, one contractor is not under the law liable for the negligence of an independent contractor. So unless a duty is assumed by contract, a general contractor will ordinarily owe no outright duty of care to a subcontractor’s employees, much less to someone making a delivery to a worksite.

However, exceptions to the general rule exist. One exception allows for the existence of a duty of care where a contractual obligation imposes a “specific duty” on the general contractor.

The attorney will hope to find contract language that says something like, “the safety and health of Contractor or Contractor’s employees, subcontractors, and agents brought onto the project Owner’s premises are and will be the responsibility of the Contractor.”

What is the key phrase? Safety and health. What is another key phrase? Will be the responsibility.

Once the attorney finds such language, then the attorney needs to examine the facts.

Did the parties with safety and health responsibility:

(1) take precautions for the safety of those on the worksite?

(2) comply with applicable law and regulation? and

(3) Designate a person or persons to prevent accidents?

The bottom-line, in answer to the caller’s situation, is that there are numerous options of recovery available that justify careful investigation. Always consult an experienced attorney in such situations.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at www.DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.