Liability of a Property Owner or General Contractor for the Injuries of a Subcontractor’s Employee

We are often asked whether an owner or a general contractor can be held liable for injuries sustained by an employee of a subcontractor, when the subcontractor coordinated all of the means and methods of its own work.

Under Ohio law, when an employee of a subcontractor is injured while performing work for his or her employer that is “inherently dangerous,” the owner of the property and/or the general contractor owes no duty of care to that subcontractor’s employee. Working on a construction site has been classified as an “inherently dangerous” activity.

However, a property owner or general contractor can be liable for the subcontractor’s employee’s injuries if they “actively participate” in the job operation performed by the subcontractor, and they fail to eliminate a hazard which could be eliminated with the exercise of ordinary care. “Active participation” means more than supervising or coordinating —rather the property owner or general contractor must actually direct the activity that resulted in the injury and/or give permission for the critical acts that led to the employee’s injury. Even if the property owner or general contractor does not “actively participate” in the subcontractor’s employees work activities does not mean that there can never be any liability for the injury. If they retain control over the work area, and could have reasonably eliminated the hazard that caused there injury in that area, there may still be liability.

A good example of this can be found in the recent case, Barnett v. Beazer Homes Investments, LLC, 2008 Ohio 6756 (12th Dist. App. 2008). In Barnett, an employee of Oehler Custom Gutters, Inc. was injured when he came into contact with a high-voltage electrical line while installing gutters on a house. Oehler had been hired as a subcontractor by Beazer. Beazer did not direct the manner or method in which Oehler was to complete the gutter installation job. Beazer also did not instruct where the subcontractor was to place its ladders. While Beazer had general supervisory responsibilities for the job, this does not rise to level of “active participation” in Oehlers’ work.

Beazer, however, did have control over a critical workplace variable—the coordination of the de-energization of the electrical line. Beazer had been told by Duke Energy that the electrical line needed to be de-energized if workers were to be scheduled to perform work on the eastern side of the house. Although Beazer argued that the injured employee or Oehlers could have contacted Duke to have the line de-energized, the evidence was that only Beazer knew of the actual hazard posed by the line and the need to coordinate the de-engerization in advance of scheduling the subcontractor’s work. Beazer’s advance knowledge of the hazard and ability to control the work area created an issue of fact for the jury to determine if Beazer was liable for the subcontractor’s injury. The bottom line is that a property owner or general contractor can have liability for the injury to a subcontractor’s employee, if they “actively participate” in either the work activities or controlled the critical work area variable that led to the injury.

Posted by: Scott R. Brown

Categories: Labor and Employment, Risk Management / Insurance