General contractors not automatic targets for hazardous injury claims
August, 2008
By
Ronald L. Richman
The California Court of Appeal in Madden v. Summit View, Inc., 2008 WL 3274100 (8/11/08) held that a general contractor cannot be held liable for a worksite injury to a subcontractor's employee where the general contractor's conduct did not affirmatively contribute, in any way, to the hazard that caused the injury.
Background
Summit View, the general contractor, entered into a subcontract with Busch Electric for electrical work on a home construction project. Madden, an electrician and employee of Busch Electric, fell from an elevated patio while pulling some electrical wire for installation in the home. There was no railing on the patio. Madden sued Summit View for his injuries, claiming that the general contractor was negligent in maintaining, managing and operating the building site.
The general contractor did not contribute to the hazard that caused the injury.
The Court of Appeal held that a general contractor who is not actively involved in, or asserts control over the manner in which a subcontractor performs the work, will not be held liable for the injury because the general contractor did not affirmatively contribute to the hazard that caused the injury.
The Court found that based on the following, Summit View did not affirmatively contribute to the injury: the injured subcontractor sequenced and directed his own work at the project; the general contractor had no control over the methods and supplied none of the materials used by the subcontractor; the general contractor did not direct anyone not to install a guardrail or other protection on the raised patio; the general contractor did not prevent anyone from installing a guardrail; the subcontractor was aware that there was no guardrail, i.e., the absence of the railing was open and obvious; the subcontractor worked in the patio area numerous times prior to the accident; the subcontractor had every opportunity to raise a safety concern about the lack of a guardrail; and the general contractor was unaware of any safety concerns regarding the absence of a guardrail.
Cal-OSHA Regulations
Cal-OSHA regulations require railings to be placed on elevated platforms "7½ feet or more above the ground, floor, or level underneath" (Cal. Code of Regulations, Title 8, section 1621). However, the Court held that the Cal-OSHA regulations do not expand the liability of a general contractor for an injury to a subcontractor as long as the general contractor did not affirmatively contribute to the hazard that caused the injury.
Safety First!
It is still important for a general contractor to take all reasonable steps to ensure that the working conditions at a construction site are safe. If you become aware of a potentially dangerous situation, you should take corrective action because the failure to correct a known safety hazard may be considered conduct affirmatively contributing to the injury, subjecting you to liability for the injury suffered by an employee of a subcontractor.
Ron Richman is the Shareholder-In-Charge of the San Francisco Office of Bullivant Houser Bailey PC. Ron's practice covers construction, real estate, general business and commercial litigation. Please e-mail him at ron.richman@bullivant.com or visit www.bullivant.com for more information.