Construction is an inherently dangerous task because it often includes falling objects, collisions with machinery, and innately hazardous conditions. Therefore, it is important to understand who is liable to subcontractors who are injured on the job.
Liability Under Premise Liability Law
In the past, a subcontractor injury was a question that fell solely under workers’ compensation law. However, a recent Second District Court of Appeals case may have altered the question of who is liable for a subcontractor injury to fall within premise liability law as well.
Paratus V. Marzucco’s Construction & Coatings, Inc.
In this case, an employee of an electrical subcontractor sued the project’s general contractor after the employee was injured by stepping on an uncovered floor drain at the project site. The trial court found in favor of the general contractor because it believed the drain was an open and obvious danger on the site. However, the Second District Court of Appeals reversed the trial court’s summary judgment as it pertained to a business invitee, finding that it was possible that the elements of a premise liability claim could be met.
What Is A Business Invitee?
Business invitees are those who enter a property to conduct business. As a result, property owners owe them the highest level of care. This level of care includes keeping the property in a reasonably safe condition, a duty to protect the business invitee from dangers that the person in control of the property is reasonably aware of or should be aware of, and a duty to warn invitees of concealed dangers which are or should be known to the owner that are unknown to the invitee and cannot be discovered by the invitee through reasonable observation.
What Are The Elements Of A Premise Liability Case?
The burden to prove each element of a premises liability case is on the plaintiff. The elements include duty owed, breach of the duty owed, causation, and damages. Some defenses to a premise liability claim include open and obvious conditions.
Duty Owed To Invitee
In the Paratus case, the appellate court held that the general contractor owed the subcontractor’s employee two duties:
- The duty to use reasonable care in maintaining the property in a reasonably safe condition; and
- The duty to warn of dangers of which the general contractor was or should have the knowledge of and which are unknown to the subcontractor and cannot be discovered through the exercise of reasonable care.
The takeaway from this finding is that as a general contractor, if you have invitees on the property, it is your duty to maintain the property in a reasonably safe condition and to warn invitees of any potential danger that they do not know of and are unlikely to discover through ordinary observation.
The causation element requires the plaintiff to show that they would not have been injured if it weren’t for the general contractor’s breach of the duty or duties owed. The example here would be, but for the general contractor failing to warn the subcontractor of the uncovered drain, the subcontractor would not be injured.
The plaintiff also must prove their damages, both economic and non-economic. Economic damages may include medical expenses (past and future), lost wages, and loss of earning capacity. Non-economic damages are more challenging to prove because they are subjective and can vary from person to person, even if the same injury is sustained. Non-economic damages include pain and suffering, mental anguish, inconvenience, and loss of capacity to enjoy life.
Open And Obvious Danger Defense
The open and obvious danger defense may be used in premise liability cases. If the danger is so apparent that a person could reasonably be expected to see it, there is no duty to protect or warn against it. To determine if a dangerous condition is open and obvious, the court will consider whether the condition would be apparent to a reasonable person in the same position as the plaintiff.
In the Paratus case, the appellate court held that irrespective of whether the uncovered drain could be considered an open and obvious danger, the general contractor owed a duty to maintain the premises in a reasonably safe condition because it can be anticipated that an uncovered drain could result in injury. While it is unclear if the general contractor will be held liable by the trial court upon further review and under the appellate court’s direction in its opinion, it brings forth something that all contractors should keep in mind – keep your premises as safe as possible and warn of all potential dangers.
Liability Under Workers’ Compensation Law
Florida law requires that all construction contractors and subcontractors carry workers’ compensation insurance because of the nature of a construction site. Therefore, if a subcontractor is injured on a site and the general contractor is the only one who has workers’ compensation insurance, it is a no-fault claim. The general contractor will likely not be held personally liable, but their insurance will cover it.
However, say that you and none of the subcontractors maintain workers’ compensation insurance. As the general contractor, you can be held personally liable for any injuries sustained on the job site. This means that you could have to pay out of pocket for the subcontractor’s medical expenses, lost income, and other damages related to the injury.
General Contractor Liability Attorney
If someone was injured on your job site, it is important to talk to an experienced attorney; you could be selling yourself short by settling when you have a viable defense or should not be held personally liable because you have workers’ compensation. The experienced attorneys at the Koberlein Law Offices can help you today. Contact us toll-free at 877.556.2889 or online for a free consultation.