Apply Common Sense To Indemnity Claim

A mechanical sub’s employee is severely injured during a coffee break when an improperly-fastened section of limestone façade comes loose near where he is sitting. Should the mechanical sub owe a duty of indemnity to the prime contractor? The Massachusetts Appeals Court does not think so, either. It is hard to imagine a set of facts where the mechanical sub’s indemnity obligation would arise for this sort of accident. The Appeals Court was thorough, examining and reciting various terms of the prime contract, in addition to the sub’s indemnity obligation. That indemnity, both in the subcontract itself and via the Massachusetts anti-indemnity law, was limited to claims caused by the sub. The GC’s argument was that the injured worker’s claim arose out of the mechanical sub’s work, because otherwise the worker would not have been on the site. Please. The appellate court politely declined to adopt that interpretation. The GC had “overall responsibility” to protect the health and safety of workers on the project, and was also responsible for coordinating the work of the various subs. If an area was unsafe, it had a duty to warn workers in that area. In short, the Appeals Court found that GC had a duty to prevent the façade sub from performing work in a manner unreasonably dangerous to others. The appellate decision includes some statements that many prime contractors may find troublesome, as to the scope of their duty to protect workers of the various trades when means and methods have been delegated to those trades. But that is to be expected when the GC seeks to invoke an indemnity obligation of a sub who had nothing to do with the injury or the conditions that caused it. Common sense prevailed. The case is Leahy v. Daniel O’Connell’s Sons, Inc., 2015 Mass. App. Unpub. LEXIS 777 (July 20, 2015).