Craig Martin, Construction Attorney, Lamson Dugan & Murray LLP,

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General contractors that exercise control over the worksite can be sued by a subcontractor’s injured employee. The Nebraska Supreme Court’s recent opinion, Gaytan v. Wal-Mart, should serve as a reminder that general contractors may be responsible for the safety of all workers on a job site.

In this case, a roofing subcontractor’s employee died after falling through the roof of the under-construction Wal-Mart. The deceased employee’s estate sued Wal-Mart and Gram Construction, the general contractor, alleging that they were negligent in maintaining a safe worksite.

The court initially acknowledged that an owner, the employer of an independent contractor, does not typically owe a subcontractor’s employee a duty because the owner typically has no control over the manner in which the work is to be done by the contractor. This general rule, however, has exceptions, such as where the owner retains control over the contractor’s work. But, for the exception to apply, the owner must have (1) supervised the work that caused the injury, (2) actual or constructive knowledge of the danger that caused the injury, and (3) the opportunity to prevent the injury.

Here the deceased employee’s estate argued that Wal-Mart controlled the general contractor’s work. The court found otherwise, relying on the contract which stated that Wal-Mart had no right to exercise control over the general contractor, its employee, or agents, and the lack of evidence that Wal-Mart actually exercised any control over the construction site.

The court also analyzed whether the general contractor exercised control over the roofing subcontractor. The contract between the general contractor and roofing subcontractor revealed that the general contractor had the general right to (1) supervise the subcontractor’s work, (2) require compliance with applicable law and the general contractor’s safety program, and (3) resolve safety issues. The court also found it significant that OSHA had penalized the general contractor, noting that even though the general contractor’s employees were not exposed to the roofing hazard, the general contractor had explicit control for the overall safety and health of the work site. Finally, the evidence revealed that the general contractor had monitored whether the roofing contractor’s employees were wearing personal protection equipment and had developed a fall protection plan for the subcontractor. The general contractor countered this last point by noting that none of its employees were allowed to access the roof.

Based on this evidence, the court found that the general contractor had a duty to monitor and control the safety of the worksite and had actually done so, even though its employees did not access the roof. Thus, the general contractor could be found liable for the injuries suffered by the roofing subcontractor’s employee.

Why You Should Care: This case is an excellent example of how both the general contractor’s contract and practices can create a duty to maintain a safe work place for all workers on the job site, even in those areas that the general contractor does not allow its own employees to access.