Generally, an entity that retains an independent contractor is not liable for injuries caused by the acts or omissions of the independent contractor or the independent contractor’s employees. However, there are exceptions to this general rule when the entity retains control over the independent contractor’s work or has a non-delegable duty to protect others from harm. For example, non-delegable duties can include: (1) the duty of one in possession and control of premises to provide a safe place to work; (2) a duty imposed by statute or rule of law; and (3) the duty of due care when the work involves special risks or dangers. In a recent case, the Nebraska Court of Appeals considered whether a general contractor in possession and control of a worksite has a duty to provide a safe place to work for its subcontractors’ employees.
In Thomas v. Kiewit Building Group, Inc., a general contractor, Kiewit, was sued by one of its subcontractor’s employees when the employee slipped and fell on sand at the TD Ameritrade jobsite. The ironworker was working on the top floor of the TD Ameritrade building in the winter of 2012, which was not yet enclosed, leaving the floor exposed to ice, snow, and other conditions. To prevent the concrete floor from becoming icy, sand was spread on the icy areas of the floor. As the floor became dry, some of the sand remained on the floor, causing the employee to slip and fall while working. The employee was paid workers’ compensation benefits by its employer, Kiewit’s subcontractor. Thereafter, the employee filed suit against Kiewit for negligence.
The employee alleged that as the general contractor in possession and control of the construction site, Kiewit had a duty to provide a safe place to work and to keep the premises reasonably safe for workers on the construction site, and that Kiewit had a further duty to protect and/or warn workers against dangerous conditions on the construction premises. The employee also alleged that Kiewit created and knew of the dangerous condition resulting from slippery, sandy floors and that Kiewit knew or should have known that the dangerous condition involved an unreasonable risk of harm to workers.
The trial court dismissed the case, finding that no reasonable jury could find Kiewit liable for the employee’s injuries. On appeal, the Nebraska Court of Appeals emphasized that a general contractor in possession and control of the premises is only liable when the subcontractor’s employee is injured because the workplace premises were not safe. It is not liable when an employee is injured due to specific actions or inactions involved in the construction process. Similarly, a possessor of property is not liable for injury to an independent contractor’s employee caused by a dangerous condition that arose out of the contractor’s work, as distinguished from a condition of the property or a structure on the property.
The appellate court considered the following evidence offered by the employee:
- Kiewit had responsibility overall for safety on the jobsite
- Kiewit was responsible for initiating, maintaining, and supervising all safety precautions
- Kiewit did walk-throughs of different areas throughout the jobsite each day and took
photographs to document inspections and to show the subcontractors any deficiencies that were found so they could be corrected
- Kiewit took care of the main walking paths, keeping them clear and removing debris left behind
- Kiewit laborers were the only persons known to have spread sand on the jobsite
- Kiewit cleaned up the sand after employee fell
After reviewing the factors above, the court determined that a reasonable jury could find that Kiewit maintained possession and control of the premises and, therefore had a duty to provide a safe place to work for the employees of the subcontractor. Further, based on the evidence presented by the employee, a reasonable jury could determine that although the sand was placed on the floor to improve safety and prevent workers from slipping on icy conditions, once the concrete floor became dry it arguably created a dangerous silk condition for the employee. The court overturned the trial court’s dismissal, and remanded the case to allow a jury to decide whether Kiewit is liable for the employee’s injuries.
As this recent opinion makes clear, if a general contractor is in possession and control of the construction site it has an obligation to provide a safe place to work. Moreover, this duty is non-delegable, which means that a general contractor in possession or control of the premises cannot contractually shift the duty to keep the premises reasonably safe to its subcontractors. Specifically, if a general contractor: (1) created the dangerous condition, knew of the condition, or by exercise of reasonable care would have discovered the condition; (2) should have realized the condition involved an unreasonable risk of harm to the injured party; (3) should have expected that the injured party would not discover or realize the danger or would fail to protect himself or herself against the danger; and (4) failed to use reasonable care to protect against the danger, then the general contractor may be liable for injuries caused by the dangerous condition.
Note that this differs from the concept of vicarious liability, which may be imposed upon a general contractor for injuries arising out of the negligence of its subcontractor when the general contractor has possession and control of the specific area in which the employee is injured or has actual constructive knowledge of the danger.
Accordingly, general contractors should take care to ensure they have an effective overall safety program in place to uncover potentially dangerous conditions on the jobsite, even if their downstream contracts allocate safety responsibility to their subcontractors. Further, subcontractors should strive to proactively watch for and report potentially dangerous conditions to the general contractor to ensure the general has actual knowledge of such conditions. While jobsite injuries cannot be fully eliminated, both upstream and downstream contractors can reduce the number of injuries caused by dangerous conditions by working together to identify and address such conditions on site.
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