The “Retained Control” Exception — Construction Accident Cases

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The “Retained Control” Exception — Construction Accident Cases

Nebraska recognizes the “retained control” exception, which exposes participants who retain control in the construction process to liability for accidents that occur on a construction site:

One who employs an independent contractor may be liable if the employer retains control over the contractor’s work. Parrish v. Omaha Public Power Dist., 242Neb. 783 (1993).

This exception is based on § 414 of the Restatement (Second) of Torts, which is often cited in Nebraska cases:

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.

Under this theory, if the defendant retains control over the work, the defendant will be responsible for all harmful consequences of its negligent exercise of that control. The rationale for imposing vicarious liability in such circumstances is to encourage the controlling contractor to impose safe work practices on those whom he controls, thereby resulting in accident avoidance.

The essential question raised by the “retained control” exception is: What degree of control must a construction company exercise to be subject to liability under this theory?

The scope of duty is not determined by a definition of the individual’s title or role, but instead by the control undertaken or exercised.  In
general, the Court looks for a duty to oversee conditions in the work of each contractor so far as they affect the safety of the employees of others, and a duty to care for such parts of the structures as are not within the control of any other contractor.

For example, a general contractor is not liable to the employees of a subcontractor for a failure to examine appliances supplied to the subcontractor by his own employer or for a dangerous method of operation adopted by the subcontractor’s own employer, the danger of which is not caused by some condition of the premises for which the general contractor is responsible.

A review of case law provides some direction as to the necessary degree of control a defendant must exercise to be subject to liability under this exception:

  • A defendant who retains control over all phases of the work and is or has a supervisor at the construction site will be subject to liability.

In Simon v. Omaha P. P. Dist., 189 Neb. 183 (1972), a subcontractor’s employee sustained injuries from falling through an opening in the floor of a construction site supervised by the general contractor. The court held that the owner of the premises, OPPD, was liable for injuries to the injured worker because, in its contract with the general contractor, OPPD reserved the right to control all phases of the work.  Further, OPPD had a supervisor on site who was the acknowledged “over-all head of everything there.” OPPD retained control over the contractor’s work, and therefore had a duty to use reasonable care in taking measures to prevent injury to employees who were working on the premises.

  • A general contractor’s liability does not extend to injuries that occur when an employee is performing work outside of the scope of the contractor’s responsibilities.

In McKinstry v. Cass County, 228 Neb. 733 (1988), the court held that the general contractor was not liable for the death of a subcontractor’s employee, where the work performed by the subcontractor was outside of the contractual obligations imposed on the contractor. In this case, the employee died as a result of falling off a bridge. The general contractor’s contract for the construction project did not require that the contractor provide any trenching, excavating or earthwork for the bridge, and the contractor never actively or directly participated in erecting the bridge. The negligence of the subcontractor happened when the subcontractor was acting outside of his subcontractor capacity, and the general contractor, therefore, was not liable for the subcontractor’s death.

  • A general contractor’s liability pertains only to providing a reasonably safe place to work, and does not extend to apparatus, tools, or machinery furnished by a subcontractor for use by his own employees.

In Eastlick v. Lueder Constr. Co., 274 Neb. 467 (2007), a bricklayer was employed by a subcontractor at a church construction site. The bricklayer was working on scaffolding when it collapsed, and he sustained serious injuries. The bricklayer sued the general contractor of the site, and several others, for damages. The subcontractor owned the scaffolding, and the scaffolding had been erected by the subcontractor’s employees. The court found that the general contractor was entitled to summary judgment because the injury the bricklayer sustained was not the result of merely working on the scaffolding, but was the result of a failure to follow proper procedures. The general contractor did not owe any nondelegable duty to the bricklayer beyond providing a safe place to work, and the contractor had not breached that duty. The bricklayer’s injuries were not the result of unsafe premises, but rather, the result of work completed in a negligent manner.

October 27th, 2011|Uncategorized|