CONSTRUCTION SITE LIABILITY

Residential and commercial construction sites can be dangerous places for workers and visitors. Homeowners, landowners, general contractors, subcontractors, and design professionals all may be liable to workers and visitors injured on construction sites.

A homeowner can avoid liability by giving the general contractor full control of the job site during construction. If a homeowner oversees the construction, frequently visiting the site and making changes to the plans and specifications either by telephone or by direct communication with the contractor, the homeowner may be liable to people injured on the site. Pennsylvania courts have held that "active oversight" by a homeowner, coupled with a "consciousness of some authority to influence decisions," makes a homeowner a person "in control" of the job site and thus liable to others for safety problems. To avoid liability, a homeowner must relinquish full control to the contractor.

The general contractor hired to run a construction job site is not automatically liable for injuries that result from work entrusted to a subcontractor. Normally, the subcontractor whose work led to an injury is responsible to the injured party. However, if the general contractor had a "presence" at the job site and exercised "control" over the subcontractor's work, the general contractor may be liable to injured parties. Pennsylvania courts have observed that "responsibility goes with authority."

In analyzing the liability of general contractors and subcontractors, the courts look carefully at the written contracts and focus on the actual management of the job site. Even if a general contractor is legally responsible under OSHA regulations to maintain a safe work site and fails to do so, injured individuals may only sue the responsible subcontractors. Pennsylvania courts have held that a general contractor's OSHA violations can lead to fines but do not necessarily give rise to general liability to injured persons.

Engineers and architects may be liable to people injured on construction sites. If a written contract places safety, supervision, and inspection responsibilities on the design professional and if the professional is regularly at the job site exercising authority, the professional can be held liable for problems that lead to personal injuries. Design professionals whose contracts give them the right to supervise work cannot be held liable unless they actually exercise that right and maintain a controlling presence at the job site. Courts look for "constant participation" by the professional at the job site and also consider the professional's right to stop work as a critical aspect of the professional's authority. As with general contractors and subcontractors, a professional's authority can lead to a finding of liability to others.

Workers injured on job sites are eligible for workers' compensation and cannot sue their employers. However, where the general contractor's negligence or the negligence of a subcontractor leads to a worker's injuries, the worker may be entitled to workers' compensation benefits and separately sue the responsible general contractor or subcontractor. A general contractor can avoid liability by proving the "statutory employer defense" to a lawsuit by a worker. Where a general contractor controls a job site, the employees of subcontractors may be limited to workers' compensation claims against the general contractor. If the general contractor does not actively control the site, or the injured worker is an independent contractor and is not anyone's employee, the statutory employer defense may not operate to limit the injured employee's rights.

Anyone having liability for a construction job site can take steps to limit their liability. The written contracts that identify the rights and obligations of the owner, general contractor, subcontractor, and design professionals can be drafted to include "indemnity" agreements. All of the responsibility for safety on the site can be delegated to one individual or entity. Indemnity agreements are not a guarantee that a party will not be sued or found liable but they can serve to shift the ultimate financial liability to the individual or entity who agreed to take the responsibility for safety. Where contractors have signed indemnity agreements, it is critical that they observe the terms of the agreements and delegate responsibility for safety to the individual or entity made responsible in the written agreements. A written agreement that has been signed will not necessarily protect against construction site liability if the parties to the contract do not follow their written agreement once construction commences.

Anyone having the responsibility for safety on a construction job site should also review all relevant insurance policies to be sure there is adequate coverage, without exclusions, to cover potential liabilities.

If you are injured on a construction job site, whether as a worker or visitor, you need to review and understand all of the contracts involved and gain an understanding of the actual roles of the various people and companies involved in the project. Someone may be held responsible for any injuries that you incur.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Copyright © 2002 by Davis Bennett & Spiess LLC, Attorneys at Law. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.