The general contractor is held liable despite transfer of responsibility to subcontractors.
An Indiana appellate court has ruled that a general contractor that contractually agrees to actively oversee job safety cannot escape liability for on-site injuries by contractually transferring its safety obligations to a subcontractor.
The court’s reasoning in Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E. 3d 908 (Indiana 2017) is discussed in detail in an article in constructionrisk.com by J. Kent Holland, Jr.
The architect/general contractor, TCI, contractually agreed with the project owner to accept liability “for overall job safety…including that which it had by subcontract expressly delegated to its construction subcontractor.”
During the suit brought by a subcontractor’s employee, TCI was awarded a summary judgment in its favor based on the delegation of safety related duties in the subcontract.
“The decision was reversed and remanded on appeal, with the appellate court explaining that the prime contractor had expressly agreed by the terms of the prime contract with the project owner to accept site safety responsibility, and this could not subsequently be delegated away. “
The appellate court’s decision noted that the prime contract stipulated that TCI “’designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the work…including routine daily inspections…
Assumption of responsibility also means TCI assumed the risk of liability for damages that might have been incurred if any of those safety precautions and programs were to ever fall short of the reasonable standard of care.’”
Mr. Holland speculates that TCI might have avoided liability if the subcontract had expressly transferred the safety duties to the subcontractor.
This decision is a cautionary tale for general contractors.
Source—
Architect/Design Builder Responsible for Construction Subcontractor’s Site Safety, J. Kent Holland, Jr., construction risk.com, September 2017.