#70:  Owner and GC Tort Duties to Subcontractor Employees

It is commonplace for subcontractors to promise to provide for the safety of their employees, and for general contractors to promise the owner that they will maintain site safety as well. Who is liable for injuries to the sub’s employees in such cases? The recent case of Grady v. Jones Lang Lasalle Construction Company, Inc. provides some guidance.
Steven Grady was an employee of A&M, a roofing subcontractor to Jones Lang on a project in Dover owned by Liberty Mutual. A&M’s subcontract required it to assume full responsibility for implementing safety programs on the project, to maintain all work areas in a safe manner, and to furnish all safety equipment. But on one cold and windy February day, A&M did not furnish rubber gloves and fire-proof leather gloves to Grady when he was using a cleaning solvent and a torch to melt ice on the roof — and Grady ended up burning his hand. He couldn’t sue A&M due to the Workers’ Compensation Law’s exclusivity provision, but he could and did sue the GC and the owner, claiming that they owed him a duty to maintain a safe working environment.
The New Hampshire Supreme Court disagreed. Noting that “A&M, not Jones Lang, supervised him and provided him with the equipment that he used,” the Court decided that Jones Lang’s general duty to monitor the site for dangerous conditions was not implicated. Nor could Grady rely on Jones Lang’s promise in its general contract with the owner to “be responsible for initiating, maintaining and supervising all safety precautions and programs,” and to be “fully responsible” for “the acts, errors, omissions, defaults and conduct of all Subcontractors.” The Court found this promise to be solely for the owner’s benefit.
The Court also mentioned that the general contract “required Jones Lang to require any subcontractor to assume the same responsibilities for the subcontracted work, and A&M in fact assumed those responsibilities in the subcontract,” and that A&M was “the party in the best position to know about the particular dangers involved in its specialty work and to provide appropriate equipment and supervision to safely perform that work.” Had Jones Lang itself undertaken to provide any services necessary for the protection of Grady, or had Jones Lang altered the conditions of the roofing work or the equipment needed to perform it, the Court indicated that the outcome might have been different. The lesson for general contractors is clear: make sure your subcontract shifts safety responsibility downstream, and then let your sub handle its own safety program; don’t mess with its implementation.
Grady also sued Liberty Mutual on the theory that owners are liable for injuries resulting from “inherently dangerous activity” on their premises. The Court ruled that winter roofing work itself is not inherently dangerous; rather, the employee created a new and unanticipated danger when he used a torch and solvent without proper gloves. It also rejected Grady’s claim that a business owner is vicariously liability to invitees at its premises for the negligence of independent contractors. The Court noted that A&M had agreed to indemnify the owner from any claims arising out of A&M’s negligence — which meant that A&M would ultimately have to foot the bill, a result contrary to the exclusivity provisions of the Workers’ Compensation Law.
Because the Grady case held that neither the GC nor the owner owed any duty to the subcontractor’s employees to keep them safe from the type of risk involved there, the question of their negligence — i.e., whether a duty was breached — never got addressed. We’ll never know whether their failing to prevent Grady’s use of a torch and cleaning solvent on a windy day without proper gloves was negligent. Frankly, I can’t imagine any jury finding that it would have been; Grady’s accident was not reasonably foreseeable to the owner or the GC.
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