In a construction site injury, can someone other than a comp carrier be liable for injuries?
The answer is yes says the Michigan Court of Appeals in Johnson v. A&M 2004 Mich. App. LEXIS 1142. In this case a subcontractor negligently installed a "toe board" and the plaintiff was seriously injured.
OVERVIEW: The employee was permanently incapacitated after falling from a roof on a construction job. He was delivering shingles to the roof of the home when he slid off the roof after a toe board installed by a subcontractor dislodged and failed to stop him. The employee sued the subcontractor. The trial court granted summary judgment in favor of the subcontractor. On review, the Court of Appeals of Michigan, found that, when the subcontractor installed the toe boards, it owed the employee a common law duty to install them in a non-negligent manner. Therefore, summary judgment was granted in error.
OUTCOME: The judgment was reversed, and the case was remanded.
RULE OF LAW: The general rule of law in construction site injury cases is that only the injured person's immediate employer--and not another subcontractor--is responsible for job safety. In some instances, though, a general contractor may be held liable to an injured party.
A general contractor can be liable under the "common work area exception," if the following elements are established: (1) a general contractor with supervisory and coordinating authority over the job site, (2) a common work area shared by the employees of several subcontractors, and (3) a readily observable, avoidable danger in that work area (4) that creates a high risk to a significant number of workers.
Even if the subcontractor had no direct duty to take proactive measures to make an otherwise unsafe work place safe, and therefore no duty to install toe boards to prevent the plaintiff from falling, the subcontractor's common-law duty remained intact: "as between two independent contractors who work on the same premises, either at the same time or one following the other, each owes to the employees of the other the same duty of exercising ordinary care as they owe to the public generally."
Thus, where a subcontractor actually performs an act, it has the duty to perform the act in a nonnegligent manner.
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