Don't Take the Fall for Inadequate Job Site Protection
By Jan A. Gruen, Esq.
On a weekend in spring, the employee of a stucco subcontractor builds makeshift scaffolding to assist in applying a three-coat stucco system to a two-story single-family residence. He has been on the job for three days. He is asked by his employer to work on a Saturday so the project stays on track. Neither the builder nor the architect know anything about the fact that he is working on a weekend, or that he has built this makeshift scaffolding. His foreman turns the corner, sees the scaffolding and insists that the worker immediately remove it because it is unsafe. The worker falls during the removal process and sustains head trauma and permanent head injuries. He remains in a coma. Will you be liable for the injuries he sustained?
Builders and architects, acting as owner/ builder representatives, typically contract with subcontractor trades to perform specific scopes of work in a good and workmanship like manner. These contracts often include provisions designed to shift responsibility for the method of job performance and jobsite safety from the builder/ architect to the subcontractor hired as an independent contractor.
An example of such contract language is as follows:
Contractor hereby accepts full responsibility and liability for the training of its employees as to all precautionary measures necessary to protect such employees during both routine and emergency situations on the job site. Contractor shall take precautions to provide a safe workplace and comply with all applicable rules and regulations of the Occupational Safety and Health Administration (OSHA), and all applicable local, state and/or federal laws, rules or regulations pertaining to the work, including all required safety equipment and supplies.
Absent exceptional circumstances, when a worker injury occurs on the job site in California, an employee's sole remedy against his or her employer is that which is recoverable through the workers' compensation system. This is known as the Workers' Compensation Exclusivity Rule. Labor Code section 3600.
Given his inability to recover more than workers' compensation benefits, employees often try to obtain additional monetary damages by suing the builder/architect for unsafe job site conditions. Those of you who think the contract language quoted above will unquestionably shield them from liability should probably read on.
California law holds that the employee of a subcontractor injured on the job due to his employer's own negligence cannot also recover damages from the hiring builder or architect. Privette v. Superior Court (1993) 5 Cal. 4th 689; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 254. In contrast, regardless of ironclad contracts, California cases have imposed liability on a hiring builder or architect if they take affirmative action or engage in affirmative conduct that causes injury to the subcontractor's employee. See Hooker v. Department of Transportation (2002) 27 Cal.4th 198; McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219. Merely retaining control over safety conditions at a worksite is not enough to impose liability against a builder or architect. However, liability will be imposed if a builder/architect's retention of control affirmatively causes the employee's injuries. (Id.) Situations where liability has been imposed include: (1) concealing a known hidden danger from the independent contractor; (2) insisting on performance of the work using unsafe methods; (3) interfering with the established means and methods of performing the work in such a way as to affirmatively cause injury or accident; and (4) supplying defective equipment to the independent contractor so as to cause the accident.
This discussion translates into simple words of caution: While a builder/architect should not turn a blind eye to unsafe practices or conditions noted in the field, make sure your contracts are adequate to address responsibility for job site safety, and once responsibility is established, steer clear of conduct that interferes with and causes injury.
May 2007 Builder Architect Edition Issue