Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/85919
In July 2006, Tverberg filed a personal injury action against Fillner and Perry. Tverberg alleged causes of action for negligence and premises liability, and sought recovery for alleged physical and mental injuries and lost income. The court evaluated two potential bases for liability of the general contractor, Fillner. First, the court ex- amined the potential liability of Fillner under a theory of breach of a non-delegable duty. Tverberg argued Fillner was responsible for complying with Cal-OSHA safety requirements that all pits be barricaded or se- curely covered. However, in California, when a hirer delegates contracted work to an independent contrac- tor, it also impliedly delegates its duty to provide a safe workplace to that contractor. In these circumstances, the hirer has no duty and the independent contractor may not recover from the hirer for his or her injuries. Here, Fillner del- egated its obligation to comply with Cal–OSHA workplace regu- lations to Tverberg, and there- fore, could not be held liable for Tverberg's injuries. Second, if a hirer entrusts work to an independent contractor, but retains control over safety conditions and then negligently exercises that control in a manner that affirmatively contributes to an employee's injuries, the hirer is liable for those in- juries based on its negligent exercise of that retained control. Because the hirer actively retains control, it has not properly delegated that authority to the inde- pendent contractor. However, a hirer is not liable to an independent contractor or their employee merely be- cause it retains control over safety conditions. Liability depends on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injuries. Here, the court found that by ordering the holes to be created and requiring Tverberg to conduct un- related work near them, Fillner's conduct may have constituted a negligent exercise of its retained control that could have affirmatively contributed to Tverberg's injuries. In addition, Fillner determined there was no need to cover or barricade the bollard holes. Fillner's employee in charge of the jobsite testified he con- cluded the stakes and safety ribbon provided sufficient worker protection. As a result, the court found that Fillner might have affirmatively assumed the respon- sibility for the safety of the workers near the bollard holes, and discharged that responsibility in a negligent manner, resulting in Tverberg's injuries. Finally, Fillner failed to cover the holes after Tverberg twice asked Fillner to do so. When Tverberg made his first request to cover the holes, Fillner's representative stated the equipment required to cover the holes was not avail- able. The court determined that a jury could conclude that Fillner agreed to cover the holes and then failed to meet this responsibility. Since the court concluded Fillner might be liable to Tverberg on a theory of af- firmative retained control, the case was allowed to pro- ceed toward trial against Fillner. General contractors need to act with deliberate caution to avoid a "mis-step" and assuming liability that might otherwise not be their responsibility. Although rules vary by jurisdiction, for general contractors and independent contractors, this case shows the importance of who retains and exercises af- firmative control over compliance with job site safety requirements. In Tverberg, despite the fact the general contractor properly delegated its obligation to comply with Cal–OSHA regulations to an independent contrac- tor; it was still potentially liable for the independent contractor's injuries based on its affirmative retained control over safety conditions. Given the complexity of the modern construction site — including the myr- iad of OSHA safety regulations and the multitude of subcontractors, suppliers and independent contractors involved in the construction process — general con- tractors need to act with deliberate caution to avoid a "mis-step" and assuming liability that might otherwise not be their responsibility. Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com Better Roads June 2012 17b