WHO IS RESPONSIBLE FOR INJURIES TO SUBCONTRACTORS?

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WHO IS RESPONSIBLE FOR INJURIES TO SUBCONTRACTORS?

ARE GENERAL CONTRACTORS RESPONSIBLE FOR INJURIES TO EMPLOYEES OF SUBCONTRACTORS FOR SOMETHING OUTSIDE THEIR CONTROL?

Grady v. Jones Lang Lasalle Construction Company, Inc., No. 2017-0371 (Aug. 8, 2018)

In a fact-dependent decision, the New Hampshire Supreme Court declined to impose a duty of care to provide supervision, training, or safety equipment upon a property owner and general contractor relative to construction workplace injuries sustained by the plaintiff, an employee of a roofing subcontractor. The plaintiff was charged with performing flashing and insulation work. To prepare the area, he first had to clean it and melt ice using a torch. Having been told by his supervisor that there were no fireproof gloves available on site, he wore cotton gloves to keep his hands warm. When he lit the torch a gust of wind caused the glove on his right hand to ignite, causing the injuries claimed.

The property owner and general contractor had contractually delegated the job to the subcontractor. The plaintiff himself had no direct contractual relationship with either the general contractor or property owner. The subcontract charged the subcontractor with maintaining all work areas in a safe manner and furnishing safety equipment. Given the parties’ relationship, the Court held that the property owner and general contractor has no duty to provide supervision, training or safety equipment. Nor did the plaintiff qualify as a third-party beneficiary of the general contract. The Court also declined to extend a duty to the property owner based upon vicarious liability for the negligence of the plaintiff’s employer, reasoning that such a result would undermine the exclusive remedy provision of the New Hampshire workers’ compensation statute.

While the decision might be seen to limit the scope of tort duty, it would appear that a property owner’s general duty of care relative to premises liability and a general contractor’s duty to maintain a safe workplace survive. It appears a critical fact that the plaintiff’s injuries arose out of the equipment he used, not the condition of the premises. Indeed, the Court distinguished the case of Butler v. King, 99 N.H. 150 (1954), stating that “nothing in Butler suggests that a general contractor has an additional duty to provide training, equipment, or oversight to subcontractor employees.”