GC Liability for Sub’s Employee? Determining Factor is Foreseeability
A New Jersey appellate court, analyzing the claim of an injured sub employee against the general contractor, notes that the pertinent factor is “foreseeability of the risk of injury, both its nature and severity.” In that instance, the court found that the GC was not liable to the sub’s employee for his injury.
The project was construction of a home, and the injured worker was employed by the framing sub. While installing a box beam on the second floor, the worker lost his balance and fell to the ground. He sued the GC for his resulting injuries.
The framing sub was responsible for its own safety program and for providing safety equipment to its workers, including safety harnesses. (The injured employee was not wearing any harness.) The sub’s owner testified that the sub provided its own safety equipment and tools to its employees, and did not expect the GC to assume responsibility for their safety.
The GC moved for summary judgment on the injured worker’s lawsuit, and the trial court allowed that motion. The Appellate Division upheld dismissal of the GC. It noted that prior cases analyzed the situation based on the extent of the GC’s control over the manner and means of the sub’s work, but the current analysis focuses on the foreseeability standard noted in the first paragraph above. Here, the GC had hired an experienced framing sub, and did not actively supervise the sub’s work or the manner in which the work was being carried out. The GC was not involved in creating the condition giving rise to the accident, nor was it aware that the worker was not wearing a safety harness. In short, the circumstances of the accident were not foreseeable to the GC.
The appellate court held that there was no basis to impose a duty on the GC to conduct regular inspections of the sub’s work or to ensure that the sub’s employees were wearing proper safety equipment. Even if the risk of falling from a beam was foreseeable to the GC, “the relationship of the parties, the nature of the attendant risk, and the opportunity and ability to exercise care were not such that a duty of care on the part of the general contractor could, as a matter of law, be found to exist.”
Further, even if the GC were cited by OSHA, any violation of OSHA regulations would not, by itself, create the basis for the injured worker’s tort claim against the GC. The case is Lata v. Loughlin, 2018 N.J. Super. Unpub. LEXIS 2572 (Nov. 26, 2018).