Scott Halberstadt | TALG
General Contractors and Owner’s Representatives May Be Liable
Generally, a subcontractor is solely responsible for the injury to one of its workers on the job site. However, as a recent California Court of Appeal reminded us, that is not absolute. The case involved an apartment construction project in San Francisco’s Hunters Point neighborhood. While the general contractor had installed a perimeter fence around the entire project, due to complaints from community members, the fence was modified to allow access to a bus stop via an unfenced walkway through the project.
Originally, the unfenced walkway was patrolled by uniformed security guards (provided by the general contractor) but, despite complaints of safety problems associated with neighborhood locals, the security guards were replaced with security cameras – which were not monitored during working hours.
A subcontractor’s foreman was assaulted by three individuals during working hours in the unfenced walkway and sued the general contractor and owner’s project manager. The general contractor and project manager sought the dismissal of the foreman’s claims based upon the long-standing legal theory that only subcontractors can be responsible for the injury to their workers. The trial court agreed, finding that the foreman could not sue the general contractor or project manager.
The foreman appealed and the California Court of Appeal overturned the dismissal; finding that because the general contractor and owner’s project manager’s actions (i.e., removing the perimeter fence and replacing security guards with unmonitored security cameras), an exception to the general rule applied and it was an error to dismiss of the foreman’s claims against the general contractor and project manager.
The exception to the general rule that a hirer of an independent contractor is not liable to an independent contractor employee is generally known as the “Hooker exception”. Under the Hooker exception, a general contractor or owner’s representative may be liable insofar as they exercise retained control which affirmatively contributed to the employee’s injuries. Under the Hooker exception, it is not enough that a general contractor or owner exercised control over the safety at the job site if they retain sufficient control over the subcontractor’s work so as to be able to prevent or eliminate the dangerous condition which caused the injury they may be liable for that injury.
The Court of Appeal’s decision reinforces that, while general contractors and owners need to be diligent in not only compelling safe job site procedures, they must also be even more cautious about their affirmative actions (like removing a fence from a portion of the job site) or omissions (utilizing security cameras instead of security guards) in providing safety measures to the job site. Those affirmative actions or omissions may result in their liability should a subcontractor’s worker get injured on the job site.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.