Furthermore, the absolute "cannots" are also relatively simple. The general contractor cannot approach a subcontractor's employee and instruct the employee as to the specific way that he should perform his job. A general contractor cannot tell the low-slope roofers that they must have two men mop tar, while another worker screws in insulation tiles, all the while using a safety monitoring system as fall protection for the crew. Additionally, the general contractor's project superintendent cannot dictate specific control details to the subcontractor's employees, e.g. "Everyone must answer to me on all issues. I don't want a pipe laid, a brick mortared, a sheet of drywall hung without my specific knowledge and approval. You will use my tools, follow my safety plans, and answer to me in all things." The micro-managing dictator approach to project management will always create liability for the general contractor in the event of an injured subcontractor's employee.
The appellate courts have also answered some questions as to what facts will create liability, in the gray areas. The Texas Supreme Court has made clear that if a general contractor mandates a specific type of safety device is to be employed and learns through inspections that the safety device has not been put in place, the general contractor can become liable if it fails to intervene and a subcontractor's employee is subsequently injured due to the lack of that safety device.2 The Texas Supreme Court has also clarified that when a general contractor on a multi-story building project mandates that its own employees use specific fall protection and knows through regular inspections that the subcontractor's employees are using inferior (and non-OSHA compliant) fall protection but fails to intervene, the general contractor can become liable when a subcontractor's employee falls from the inferior rigging.3
Law in Application Does this mean that the prudent general contractor should take the ostrich approach to project management, simply to avoid potential future liability in the event that someone gets hurt? Ethical considerations aside, the answer is still "no." A general contractor cannot effectively supervise a project if it ignores what is going on at a project simply to protect itself from future liability. Moreover, the Texas Supreme Court has specifically commented on the question, clarifying that,"(a) general contractor is not 'required to stand idly by while another is injured or killed in order to avoid liability.' Nor do we believe that the liability rules contemplate putting those who employ independent contractors in that position."4
The best practice, then, in order to effectively manage a project and keep fully apprised of the happenings on the project, would require three things:
- If at all possible, avoid mandating specific types of safety plans or construction activities, such that the general contractor will not be seen to have usurped control over the means, methods and details of a subcontractor's work.
- Keep apprised of general OSHA (or other state/federal) safety regulations for the types of trades operating on site, such that when a blatant violation is committed, the general contractor recognizes it as such.
- When the general contractor recognizes a problem on site, rather than correcting and instructing specific subcontractor's employees, the general contractor should address the issue with the worker's foreman, and demand that the foreman either correct his employees or stop work until such correction can be made.
Following these guidelines may not stop subcontractor's employees' lawsuits. However, these practices will likely lead to more defensible and manageable claims, when they do arise. Moreover, by following these principles, and having a plan in place to address safety concerns as they arise, injuries may also be less likely to occur. And that is a win-win situation for everyone.
Elizabeth Weathers is a trial attorney with Sedgwick, Detert, Moran & Arnold LLP whose practice focuses on environmental liability litigation, construction accident and defect litigation, and product liability litigation. She can be reached at 469.227.8200 or by e-mail at firstname.lastname@example.org.
1Dow Chemical Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); see also Restatement (Second) of Torts 414 cmt. c (1965). 2Tovar v. Amarillo Oil Co., 962 S.W.2d 469 (Tex. 1985). 3Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001). 4Id. at 801 (quoting Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998)).