General Contractor’s Duty to Employees of Subcontractors: The Move to a Case by Case Analysis?

Generally speaking, a general contractor (“GC”) has had a non-delegable duty to maintain a safe workplace. See Kane v. Hartz Mountain Industries, 278 N.J. Super. 129, 142 (App. Div. 1994). This general rule is also reflected by certain OSHA regulations, with which all employers must comply. The reasoning behind this rule is that the general contractor has control over and oversees the project, can hire and fire subcontractors, and directs subcontractors with regard to what work needs to be done. This rule creates a problem for the so-called “paper contractor”, in other words, GCs who do not perform any physical work or do not have any employees on the jobsite. After a worksite accident, should those GCs which are not involved with the physical work on the jobsite be held liable for injuries sustained on a worksite for which they did not oversee?

A recent unpublished Appellate Division opinion provides guidance with regard to the liability of GCs. In Lata v. Loughlin, Docket No. A-1129-17T1, N.J. Super. Unpub. (App. Div. November 26, 2018), the Appellate Division clarified certain circumstances in which a GC may not be held liable for the injury to a subcontractor’s employee. The Lata case arose out of bodily injuries sustained as the result of an employee of a framing subcontractor’s fall. The Court analyzed the facts of Lata and the circumstances that weighed against holding the general contractor liable: 1) the GC contracted with an experienced framer to do framing work on the residential project, 2) the GC did not actively supervise the subcontractor’s framing work framing work, employees, or the manner in which the framing was performed 3) the subcontractor provided all tools and equipment used for the framing work 4) there was uncontroverted testimony that the GC was not responsible for providing safety equipment, 5) there was only one employee of the GC on the worksite at the time of the fall, and there was no evidence that that employee interacted or directed the subcontractor that employed the injured worker, 6) the subcontractor was not an employee of the GC, 7) the GC did not create any dangerous condition that caused and fall, and lastly, 8) the GC was not aware of the fact that the employees of the framing subcontractor were not wearing fall protection harnesses.

The Lata Court determined that the GC in that case could not be held liable for the injuries that the subcontractor’s employee sustained. The Court did not make any easy to apply broad rules, but instead looked to the totality of the circumstances presented in that particular GC and subcontractor relationship. Further, Lata is an unpublished decision and is not binding on Courts, however, it presents a potential evolution with regard to the liability of GCs. There are many GCs which do not physically engage in work and essentially act as construction managers from afar.

Whether GCs are liable for an injury to a subcontractor’s employee or not requires a complex, multi-factor analysis. The law is always developing and you should be aware of your liability and risk. If you have questions or concerns about the potential risks you or your business are facing, please contact Joseph V. Leone at jleone@hoaglandlongo.com or call (732) 545-4717 today.