A contractor who does not retain control can still be subject to liability in construction accident litigation if the contractor agrees to perform a safety role in connection with the work of the injured party and fails to properly exercise that safety function.
The focal point of the direct liability exception is the overall safety supervisory responsibilities of the defendant. In Nebraska, the direct liability exception applies to contractors who assume a contractual duty for the safety of workers at a construction site:
When a general contractor assumes a contractual duty for the safety of workers at a construction site, the contractor’s duty cannot be delegated to a subcontractor. Parrish v. Omaha Public Power Dist., 242Neb. 783 (1993).
Two factors are typically considered in analyzing liability under the direct liability exception: (1) Did the contract require the defendant to exercise a safety role on the job or, alternatively, did the defendant perform an overall safety role on the job? and (2) Did the defendant have pre-injury notice – actual or constructive – of the unsafe work practice or hazardous condition on the job site that caused injury?
1. Establishing the Safety Role
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. § 414 Restatement (Second) of Torts (1965). Further, if a contractor assumes a contractual duty for the safety of others, the contractor is liable for physical harm to others for whose safety he owes a duty to exercise reasonable care, which is caused by his failure to exercise his duty with reasonable care.
2. Establishing Notice
Courts recognize that contractors with overall supervisory responsibilities at construction sites cannot be everywhere at all times. For this reason, the plaintiff must establish that the contractor knew or should have known that the particular unsafe work practice or hazardous condition existed on the job site as a prerequisite for finding liability under this exception. The following should be taken into consideration:
- Did a defendant representative actually see the hazardous condition or unsafe work practice on the job prior to the accident?
- Did a defendant representative receive a complaint about the hazardous condition or unsafe work practice on the job prior to the accident?
- Did a defendant representative actively participate in creating the hazardous condition or recommend the unsafe work practice?
- Was the defendant present at a safety meeting before the accident in which the topic of the hazardous condition or unsafe work practice was discussed?
- How long did the hazardous condition exist on the job site before the accident?
- Over what period of time were workers engaging in the unsafe work practice on the job before the accident?
- Did the hazardous condition or unsafe work practice exist in a confined space that was not readily or easily accessible by anyone other than plaintiff’s employer?
- Was the appearance of the hazardous condition or the performance of the unsafe work practice visible to the naked eye at a reasonable distance?
- Did prior accidents occur on the job involving the same hazardous condition or unsafe work practice?