Contract provisions can override the general rule.
General contractors are not usually held responsible for the well-being of the employees of subcontractors. There are, however, exceptions, as Kent Holland explains in an article in ConstructionRisk.com about the decision in a recent Indiana Supreme Court case, Michael Ryan v. TCI Architects/Engineers/ Contractors Inc. et.al.
Courts have usually found that subcontractors are primarily responsible for the safety of their employees because they control the jobsite activities of their crews more directly than general contractors.
What makes the Ryan case unusual is that the general contractor, TCI, was held responsible because of contract language in its contract, not with the subcontractor, but with the Owner.
“The fact that it [TCI] included language in its subcontract purporting to shift that responsibility to the subcontractor for safety of the subcontractor’s employees did not eliminate the design-builder’s own responsibility that it undertook pursuant to its prime contract- DBIA [Design –Build Institute of America]Form 530.”
The trial court and the Court of Appeal ruled in favor of TCI. The Indiana Supreme Court reversed in favor of Ryan. Its decision was based upon “an exception to the general rule that a general contractor owes no duty to employees of subcontractors on a construction project.”
This exception states that if the general contractor has assumed “a duty of care/safety” for the employees of a subcontractor the general rule does not apply.
In this case, the contract language in the DBIA Form 530 agreement between the general contractor and the owner explicitly and in great length stated that TCI was responsible for safety on the project.
Mr. Holland concludes his article with the following cautionary note:
“Contractors wishing to avoid liability for jobsite safety on projects must look at both the upstream contracts and downstream contracts to make sure the language in each of those contracts does not create legal liability.”
This is sound advice.
Source—
Who has Responsibility for Jobsite Safety is Determined by Contract Language, Kent Holland, ConstructionRisk.com, June 2017.
