Owner/contractor Under Duty to Ensure Safe Site

OWNER/CONTRACTOR UNDER DUTY TO ENSURE SAFE SITE

By: Robert S. Tanner, Malka & Kravitz, P.A.

Worthington Communities, Inc., was both the property owner and the general contractor for a condominium project in Fort Meyers. Worthington contracted with Sunshine Masonry, Inc. ("Sunshine") to install forms and pour concrete for structural divisions between floors. The joist system utilized by Sunshine required the placement of steel joists between the exterior masonry walls, stabilized by rollbars around the perimeter of the walls and at intervals along the length of the joists. The wire mesh to be used for reinforcement of the concrete was delivered in 3700-pound bundles. The joist manufacturer's specifications and the blueprint notes indicated that the mesh bundles should not be loaded and stored on the joists until the rollbars were completely installed.

On May 14, 1999, Sunshine placed joists between the first and second floors of one of the condominium units. Before the rollbars were fully installed, Sunshine used a crane to place bundles of wire mesh on top of unbraced joints. Worthington's project superintendant saw the mesh bundles sitting on top of the joists and knew that rollbars had been installed only around the perimeter of the joists. The next day, Mr. Mejia, a Sunshine employee, was working below the bundles. The joint system collapsed and one of the bundles fell on him, rendering Mr. Mejia a quadriplegic.

Mr. Mejia and his wife sued Worthington, alleging that Worthington was negligent because, as the owner and general contractor, Worthington owed Mr. Mejia a duty to maintain the job site in a condition safe for all workers. Mr. Mejia alleged that Worthington breached its duty by failing to correct the dangerous condition created when Sunshine loaded the joists that were not fully braced. After trial, the jury awarded the Mejias damages of $6.5 million. Worthington appealed.

On appeal, Worthington argued that the trial court erred because there was no evidence that Worthington breached any duty it owed to Mr. Mejia. The question of what duty an owner/general contractor owed to employees of a subcontractor was the appellate court's primary focus.

The appellate court held that the applicable law provides that, "While an owner who hires an independent contractor is not generally liable for injuries sustained by that contractor's employees, an exception to this general rule exists when the owner 'has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed' or has engaged in 'acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee.'" The appellate court explained that, "an owner who is also the general contractor (thus actively participating in the work), may be held liable for a workman's injuries if that workman can prove that the owner either negligently created or negligently approved of the dangerous condition . . . ."

Worthington's project superintendant denied knowing that the manufacturer's specifications required the mesh bundles to be placed on the joist only after all of the rollbars were in place and, further, denied that Worthington had any responsibility to ensure either subcontractor's employees safety or that the mesh bundles were safely placed. However, Worthington's vice president of construction testified that all Worthington superintendents were aware of Worthington's responsibility to ensure that the jobsite was reasonably safe for all workers and should be familiar with the blueprints and methods of construction. Based on those facts, the appellate court ruled that sufficient evidence existed to support the finding that "Worthington either negligently allowed the dangerous condition to be created or negligently approved it, even if only by simply ignoring it . . ."

This case illustrates that the safety of workers on a jobsite is everyone's responsibility. A general contractor cannot ignore a dangerous condition simply because it was created by its subcontractor. Also, this case also points out the importance of proper corporate structuring in order to protect your company from liability. In this case, if the property owner would have created two corporations, one to own the development and one to serve as the general contractor, the property owner would not have incurred any liability for the injury and the general contactor's liability would have been limited to workers compensation.