Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/85919
InCourt by Brian Morrow Down I All Fall Pit fall by indepdendent contractor may be liability for general contractor n a recent California case involving the intersec- tion of construction law, personal injury law and OSHA regulations — Tverberg v. Fillner Construction, Inc. (Jan. 26, 2012) — the court ruled a general contractor could delegate its obliga- tion to comply with government safety regulations to a subcontractor's independent contractor. However, the court also found the general contractor could potentially be held liable for its negligent exercise of affirmative retained control over safety conditions re- lating to the independent contractor's work. The facts of Tverberg are as follows. In 2006, Fillner was the general contractor on a project to ex- pand a commercial fuel facility in Dixon, California. The project required construction of a metal canopy over some fuel pumping units. Fillner contracted with subcontractor Lane Supply, which delegated the work to subcontractor Perry Construction Company (Perry). Perry hired Tverberg — an independent contractor — as foreperson of Perry's two-person crew to construct the canopy. Tverberg had more than 20 years' experience in structural steel con- struction and held a state contractor's license under the name of J.T. Construction, a sole proprietorship consisting exclusively of Tverberg. Fillner also hired 17a June 2012 Better Roads subcontractor Alexander Concrete Company to erect eight "bollards" — concrete posts intended to prevent vehicles from colliding with the fuel dispensers. On May 1, 2006, Tverberg's first day on the job, Alexander Concrete had already dug eight holes for the bollard footings. Each hole was four feet wide and four feet deep. The holes, which were marked with stakes and safety ribbon, were next to the area where Tverberg was to erect the metal canopy. The bollards had no connection to the building of the metal canopy. In fact, Tverberg had never seen bollard holes at a can- opy installation site. Tverberg asked Steve Richardson, Fillner's lead man, to cover the holes with large metal plates that were on site. However, Richardson said he did not have the necessary equipment to install the plates that day. Richardson did have his crew use a tractor to flatten dirt that was piled around the holes. Tverberg removed three or four stakes that marked the edges of some of the bollard holes. The next day, with the bollard holes still uncovered, Tverberg began work on the metal canopy. He again asked Richardson to cover the holes, but Richardson did not cover them. A short while later, as Tverberg walked from his truck to- ward the canopy, he mis-stepped and fell into a bollard hole and was injured. Better Roads February 2012 17