Subcontractor Liability for Safety Hazards Caused by Others

A subcontractor is rarely the party assigned overall responsibility for job site safety. The subcontract itself usually requires the sub to avoid creating safety hazards while performing its own scope of work. But that is it. Consequently, it was surprising when a subcontractor was sued by injured employees of the prime contractor for a hazard the sub did not create.

The situation arose when an employee of an HVAC subcontractor was mildly shocked by an ungrounded light fixture wired to an unguarded electrical circuit. This was a pre-existing condition in a building under renovation. The electrical system was not within the HVAC sub’s scope of work. The subcontractor was aware of the incident but considered it minor and did not report it to anyone. Two employees of the prime contractor subsequently suffered more serious injuries as a result of the hazard.

A California court grappled to find a source for some duty the subcontractor might have to warn the prime contractor or its employees. It was not to be found in the common law of negligence. It was not to be found in the terms of the subcontract itself. But the state labor law, Cal-OSHA, was a different matter.

Is it fair to hold a subcontractor responsible for a pre-existing hazard outside the sub’s scope of work? Or, when it comes to safety, is every party on a construction site in effect its brother’s keeper? Are there risks and assumptions of liability involved when a party runs around behaving as a self-appointed safety sentinel?

As always, I welcome all comments below.  And, I wish you a healthy and happy new year.

Featured in next week's Construction Claims Advisor:

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• Proposal Downgraded Without Any Mention During Discussions

Bruce Jervis, Editor
Construction Claims Advisor

Comments

[James H. Keil]

This one is pretty interesting. I'm not a lawyer, but I'd be quite interested to hear counsel's arguments on prevailing standards.

[howard i. littman, aia]

I'm not sure why this would be much of a stretch. You don't identify the contract form involved, but if it's a common/standard form the sub is probably required to notify the GC of any 'condition' that would prevent or hinder the sub in the performance of its scope of work. The known non-code and potentially dangerous unprotected electrical circuit, once identified, is such a condition, since it presented a danger to the sub's employees (and thus should have been cured before the sub continued its work). A notification to the GC would have been for protection of the HVAC's own employees, but then would also have been on the record and something the GC would have had to address for the benefit of all other workers on site that could potentially be exposed to the same dangerous condition. Even a minor shock to a worker atop a ladder, for example, could result in serious injury or death. If the sub was aware of a dangerous job site condition and didn't report it, I would tend to agree that the sub has 'bought' at least some liability for a subsequent injury resulting from the same condition. The unaddressed question is: how many other subs or GC personnel on the project knew of this condition and did nothing about it? After all, job-site workers do talk to each other, so the incident was likely known by someone other than the initially-shocked individual and his supervisor.

[Henri Fennell]

This is a tough one. It is not unusual to find a myriad of what are arguably "minor" safety hazards, especially on a large complex project. While an electrical hazard may be easier to put on the "reportable" side, the bigger question may be where is the line between a safety issue and temporary conditions that most would consider unavoidable temporary conditions that only require a common sense response, but not a write up. Additionally, if you write it up, work in that area would have to stop until the condition is improved. Obstructions, sharp edges, slippery surfaces, small changes in surface plane, etc. are common. The subcontractor could spend a significant amount of time writing up "potential" hazards to avoid the type of liability described above. Many of these typical minor conditions only exist for an hour or a day, going away as the construction progresses. Also, being the "safety police," reporting what may be considered by the GC as frivolous reports, may have a real effect on the ability of the subcontractor to get future work with that General if their claims caused a lot of costly delays to improve short-lived conditions that could have been managed by taking normal care under work-site conditions.

[Damon Schneider]

I agree with Howard. I have seen a lot of "little things" turn into bigger things that result in WC claims. If my employee received an injury, even minor in nature, I would report it to the GC and do it in writing. What if the employee comes back and claims a more serious injury later in the day or the next?

The GC's safety officer on site should be apprised of the situation and maybe it could have been resolved before a formal write up would have been necessary. I think the issue is that it was not brought to anyone else's attention in a timely manner.

A daily tool box talk (hopefully there was one) is meant to get everyone on the same page and make sure that everyone is on alert for hazards that could impact the safety and health of on site workers and potentially the "safety and health" of the project itself. Jobsite fatalities tend to dent timelines.

[J. Baker]

As a soils engineer we grapple with this issue regularly...when we see excavations and people within them.

From a liability standpoint it is always safer to report and, had the HVAC done that, he would not have a problem at this time. That also would have been the 'common sense' thing to do if he was working around his house with some friends..he would tell them to watch out for 'this' until it gets fixed.

The issue is contractual. I have a hard time making the HVAC liable for a condition they did not cause. Add in that when they 'experienced' the hazard it was minor. Also, the question of: Did the HVAC employee tell his employer (the site Super) who would be more in a position to have 'reported' this or did he simply go about his work. You cannot hold the HVAC responsible for a hazard that his employee knew of but did not report.

This is a tough issue brought about by a desire to always have 'someone' be responsible for everything that goes wrong..and usually once that 'someone' is determined they try to share the costs with 'someone else'. Who created the hazard to start with?