Owner's Liability for Workers' Injuries in Construction Accidents

Industry Overviews

Like the architect, the owner of the property on which construction takes place is rarely protected by worker's compensation statutes from an injured worker's negligence suit for a construction accident. Most courts have refused to impose liability upon property owners without a finding of fault. Accordingly, a determination of liability generally rests on resolution of the following issues: (1) the legal relationship between the owner and the injured worker's employer; (2) whether the owner had a duty to the worker as to the event which caused the injury; and (3) whether the owner breached that duty by falling below the standard of care, and, if so, whether the owner has any defenses which may reduce or eliminate liability. These issues are resolved in light of governing statutes, the common law, and the particular contractual relationship between the owner and the contractor or architect.

The property owner's liability to an injured construction worker depends upon his contractual relationship to the worker's employer. If the owner is deemed to have a master/servant relationship with the contractor, the doctrine of respondeat superior applies and the owner will be liable for injury caused by the contractor's negligence, although the owner may have a claim for indemnity against the contractor.

On the other hand, if the contractor is deemed an independent contractor of the owner rather than a servant, the owner will not be liable for the construction worker's injury unless it was caused by the owner's breach of one of the duties to construction workers imposed on owners by law. In the independent contractor situation, the owner is protected by the general rule of nonliability for injuries to the contractor's workers. This rule derives from the legal proposition that the owner generally owes no duty to the construction worker to prevent accidents and injuries.

Several factors determine whether a contractor will be deemed an independent contractor of the owner. These include:

(1) whether the owner controls only the result of the work and not the manner in which it is performed; (2) whether the parties characterize their arrangement as an independent contractor relationship; (3) the nature of the work being performed; (4) the skill required to complete the work; (5) whether the contractor supplies its own tools; (6) whether the owner pays by the job as opposed to by time; (7) the relation of the work to the owner's line of business; and (8) the owner's power to terminate employment.

There are several significant exceptions to the general rule that an owner will not be found liable for work injuries and accidents where his employer was an independent contractor of the owner. These exceptions apply in three different situations where duties are otherwise imposed on the owner. When these duties are found to exist and are breached, they may render the owner accountable for workplace injuries and accidents.

If an owner carefully selects a general contractor who, as an independent contractor, is delegated the task of construction, ordinarily the owner will not be liable for injuries sustained by workers. Ownership alone is usually not a basis for liability because in contrast with a general contractor, the owner typically is not a professional builder ... and not knowledgeable concerning safety measures.

However, if an owner retains the right to control some aspect of the work, he will be held responsible for a failure to exercise that control reasonably to prevent injury. By retaining some control over the construction, the owner has retained the power to see that safe procedures avoiding accidents are observed in the areas in which he has retained control. The law requires the owner to exercise that power with reasonable care. In contrast, if the owner retains only the right to observe the contractor's performance of the construction and to insist on its fulfillment in accordance with their contract, he has not retained enough control to be under a legal duty to ensure safe execution of the construction without accidents.

If the owner has retained the right to control the manner or means of his independent contractor's operation, his duty of care to use his power to prevent the use of unsafe methods that could result in construction accidents is nondelegable. The owner, by agreement, may assign nondelegable obligations to his independent contractor, but by doing so he cannot affect his own duty to the injured worker. He may be entitled to indemnification from the independent contractor, however.

Another duty typically imposed upon the property owner is the duty to provide the independent contractor with a safe place to work free from any occurrences of construction accidents. Often this duty is codified in a state statute and, in most states, the duty is nondelegable. The owner is required to exercise reasonable care in making his premises reasonably safe for the employees of the independent contractor. If the duty is breached and an injury results to a worker, the owner may be found liable. An exception to this proposition occurs when the government is the owner of the property. Tort actions are limited by the guidelines established in the Federal Tort Claims Act.

The owner satisfies this ''safe place'' duty in one of two ways: he may use reasonable care to provide a workplace free from unreasonable risks of harm, or he may warn the independent contractor of danger on the property that could lead to a construction accident and injuries to workers. The owner is generally not responsible for injuries caused by latent or unforeseeable defects which in the exercise of reasonable care he could not have discovered. Alternatively, the owner may warn the independent contractor of the dangers on the property of which the owner either has actual knowledge or should be aware through the exercise of reasonable care. He need not warn individual employees of the contractor and will not be responsible if the contractor is remiss in conveying the warnings to the workers. If the owner fails to give the contractor warning but the contractor has actual knowledge of the danger, the owner has fulfilled his duty.

Whether the owner has used reasonable care is a question of fact. The presence of high voltage wires which the owner should be aware of and about which the contractor has not been warned is frequently found to be an unreasonable risk of harm. One court found that an owner failed to exercise reasonable care when it simply provided the contractor with a list of safety regulations and made no further effort to make plain when it was necessary for an employee to wear protective eyeglasses.

There are two generally accepted exceptions to the owner's duty to provide a safe place to work which can serve to relieve the owner of possible liability to an injured workman for a construction accident. The first involves dangers which are open or obvious. In these instances, the law imputes knowledge of the danger to the independent contractor regardless of whether he has actual knowledge. The second exception involves those dangers implicit in the very work for which the independent contractor was hired.

For example, an owner who hired an independent contractor to replace deteriorated concrete slabs of an old roof was not liable for the injuries sustained by the contractor's employee who fell when one of the concrete slabs he was removing broke. Similarly, the law supposes that the independent contractor and his employees are sufficiently aware of the dangers of the specific construction or repairs which they agree to perform and the possibility that a construction accident may occur. A corollary to these two exceptions is the generally accepted proposition that dangerous conditions created by the independent contractor cannot form the basis for imposing a duty on an owner who relinquishes control.

In a few states, the owner's general duty to provide safe premises may be particularly strict regarding certain types of construction which are notoriously dangerous, such as scaffolding, elevators or shaft openings. Scaffolding is one major area where the owner's duties are onerous. New York has disposed of the negligence standard and imposes absolute liability on an owner when specific scaffolding standards are not met. There, an owner is required to compensate the injured worker involved in a scaffolding construction accident regardless of whether he or the independent contractor behaved negligently. The owner is liable even when the independent contractor supplies and constructs his own scaffolding and the owner has neither control nor knowledge of the work.

Other states retain a negligence standard as to scaffolding areas, but place a duty on the owner to see that statutory provisions regarding scaffolding are met if the independent contractor fails to ensure compliance. Illinois law applied its scaffolding act (Structural Work Act) to owners ''having charge of'' construction or alteration of the structure covered by the Act.

The duties imposed upon an owner to exercise control reasonably, to provide a safe place to work, and to warn of non-obvious dangers are duties which hold the owner accountable only for his own negligence. In some states, however, there are circumstances under which an owner will be held accountable only for the negligence of the independent contractor leading to a construction accident. This vicarious liability is created when the work to be performed is inherently or peculiarly dangerous and special precautions are required.

The general rule followed by most courts is that one who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

Whether the risk of harm involved in a construction project is within this inherently dangerous work doctrine is a decision which varies from state to state. California and other states which have taken an expansive view of the doctrine have ruled that ''[t]he fact that an activity involves an ordinary and customary danger of the particular work to be performed is immaterial to the question of whether it may involve a peculiar risk of harm within the meaning of the peculiar risk doctrine.'' It is necessary only that the risk be one which the owner should recognize as likely to arise in the usual or actual method of performing the work.

Whether the work during which the injury occurred is inherently dangerous or involves a peculiar risk of harm is a question of fact. The risk of being struck by a dump truck backing up, of falling from an elevated structure, or of being crushed in a cave-in while working in a trench have all been held to be within the doctrine. One court went so far as to hold that the risk of recently constructed warehouse walls collapsing onto workers pouring a concrete floor was a peculiar risk of harm of the work. The court ignored the nature of the work and the forseeability of the accident and focused instead on the fact that ''special precautions'' were necessary to prevent the injury.

Two further limitations are commonly placed upon the peculiar risk doctrine. First, the doctrine does not cover ''collateral'' acts of negligence by the independent contractor. Collateral negligence is defined as negligence which is unusual or abnormal to the contemplated risk of doing the work. For example, if an owner hired an independent contractor to transport goods for him, the risk that the independent contractor would exceed the speed limit is a risk of abnormal or collateral negligence. The owner is not responsible for collateral negligence of the independent contractor in the absence of some negligence on his own part that results in an accident or injuries.

The second limitation is closely related to the first. Some courts have held that an owner is not liable for certain categories of risks which are deemed ''unforeseeable.'' For example, the risk that the independent contractor will supply defective equipment which will cause injury to a worker has been held unforeseeable as a risk peculiar to the work. The owner was justified in assuming that the independent contractor would supply his employees with safe equipment that would not cause a construction accident. The unforeseeability limitation tends to ameliorate the harshness of a rule which imposes liability on an owner who may not be in a position to institute adequate precautions.

The liability of an owner for worker's injuries may be affected by a state worker's compensation statute. Although the owner may not be the direct employer of a contractor's employee, he may nevertheless be classified as a ''statutory employer'' for purposes of worker's compensation. In a few states, there is no statutory employer provision and the owner's liability will not be affected by the worker's compensation act. Classification as a statutory employer usually makes the owner liable under the worker's compensation statute to the independent contractor's worker injured in the scope of his employment from an accident. Since the owner is treated as the employer, he, like the employer, is given immunity from a common law negligence suit. In a few states, however, the owner who hires an independent contractor is simply an insurer of the contractor's worker's compensation obligation and is not protected from a tort action by the injured worker for any accidents.

Injury HelpLine Newsletter

Products and Services