CONSTRUCTION SITE SAFETY – THE GENERAL CONTRACTOR'S INFLUENCE OVER AND LIABILITY FOR RESIDENTIAL CONSTRUCTION SAFETY ,
Following the Connecticut Supreme Court's reversal of a multi million dollar verdict against a general contractor in favor of a severely injured worker employed by a sub- contractor in the case of Pelletier v Sordoni/ Skanska Construction Co., 286 Conn. 563(2008), many in the construction industry no doubt breathed a sigh of relief. The duties owed by general contractors and construction managers on a construction site to the employees of sub-contractors were brought into sharp focus and the message drawn from the outcome of that case may very well have exceeded the actual holding and discouraged members of Bar from pursuing Tort claims in its wake. That is not a desirable outcome from a public policy perspective nor has the final chapter been written on the viability of pursuing such claims in Connecticut. While pursuing individual client interests for the purpose of obtaining financial compensation, leaving politics aside, it seems fairly obvious that much good has been done by lawyers toiling in the field of products liability and medical negligence litigation in terms of promoting the public's interest for safer products and the safer delivery of medical care. Case law has not always been favorably disposed to those pursuing such cases and there continue to be minefields and unresolved issues at the Trial Court level complicating the effort. However, overall, one can say that by enabling financial accountability and subjecting product design and medical decision making to the rigors of the marketplace, sub-standard products and practices do tend to be identified, modified or eliminated over time.
In the same way, the Construction industry, and particularly the residential construction segment, appears ripe for an enhanced degree of legal scrutiny. Residential general contractors who do not insist on employing individuals and sub contractors that adhere to fair labor and wage practices, that do not inquire into their subcontractors work methodologies nor assess whether there is a manifest intent to comply with Federal OSHA work site regulations and other applicable industry customs and standards risk not only tort claims premised upon negligence but also punitive damage awards under theories of recovery including common law recklessness and statutory Unfair Trade Practices. Connecticut's residential construction industry , though depressed given recent cyclical trends, still supports tens of thousands of skilled and semi- skilled workers who rely on it for their livelihood. Many such workers are persistently being exposed to an unnecessary risk of physical harm due to a lack of appropriate construction work site safety conditions, procedures and safety equipment with predictable consequences. Despite a veritable panoply of mandated precautions and hazard recognition procedures set forth in applicable Federal OSHA regulations and generally accepted construction industry standards for competent Builders utilizing their own employee labor, these are serially ignored in many instances. Connecticut Statute establishes the duty to provide a safe work site and the adoption of attendant work site safety procedures. ( See CGS 31-49 and CGS 31-370) but violations and short cuts effecting non employee laborers populating the trades may be overlooked or even encouraged in the interest of expediency and squeezing out profit margins. Many laborers are also not being compensated for their extended work hours in terms of State mandated overtime for non managerial employees. Some are being paid cash by low cost sub- contractors who couldn't otherwise perform the work for less money than it would cost the general contractors to do by hiring their own employees. Others are themselves misclassified as “independent contractors” in an effort to avoid Federal and State Tax witholding and Social Security and Medicare contributions as well for similar reasons. This vulnerable class of workers in need of money will readily work for cash, accept sub-standard conditions or sub-standard wages, particularly when there is less work to be found. It is hard to believe that most general contractors who hire those sub-contractors that treat their employees in this manner are not aware of the economic bargain being struck. It is Connecticut's public policy to look to those entities that have the right to control workplace conditions to exercise that control in a way that protects the workforce, not only to one's own direct employees. Brennan v. Occupational Safety Health Review Commission 513 F 2d 1032 (2d Cir 1975); The Brennan case involved a multi-employer worksite where the Court found that the general contractor necessarily had over arching responsibilities as to all workers on site. Likewise, the Pelletier Court indeed recognized the continuing validity of the proposition that even when the general contractor is not in direct physical control of the site at the time that the sub-contractor is performing its work , either exertion or its retention of the right to control are sufficient grounds to establish the existence of a duty running in favor of the injured worker.. Pelletier et al v. Sordoni/Skanski Construction Co.,Supra. The word “control” has no legal or technical meaning and refers to the power or authority to manage, superintend, direct or oversee. Panori v Johnson 158 Conn 92 ( 1969). Notably, control need not be exclusive, it is enough if it is shared with another.Van Nesse v. Tomaszewsk,i 265 Conn 627 (2003). In a recent case involving a worker who fell from a significant height from a scaffold without any fall arrest system in place, my client was being paid piecemeal wages based upon the amount of roofing work he and his crew performed . His direct employer was a sub-contractor performing the roofing work for a general contractor who was aware of the pay arrangement. Needless to say, they were being incentivized to increase the pace of the work as it meant more money . Given such circumstances, many experienced tradesman ,such as my client, may not have been inclined to utilize fall protection even if it had been provided unless mandated to do so by the entity in control or with the authority to control the construction site ( the general contractor) because of its tendency to slow the pace of the work . In other situations, the deviation from recognized standards of care may stem from a lack of appreciation by the individual worker (or his employer) of the magnitude of the hazard involved or a lack of knowledge about how best to abate the danger posed by adhering to best industry practices, thus greatly enhancing the risk of injury.
A general contractor that hires a sub-contractor who does not maintain standard insurances, comply with wage and Labor regulations, or who does not demonstrate the use of safety equipment applicable to the scope of the work delegated to them and monitor the site for safety practice compliance purposes should be hard pressed to rely on the general rule of non liability for the torts of its independent contractors as the basis for its defense. A general contractor with knowledge of a defect in the work or in the negligence of his sub contractor may be held directly liable. Swearsky v. Stanley Dry Goods Co., 122 Conn.7, (1936). Aside from actual knowledge, the liability for negligent selection of an independent contractor is one of the established exceptions to the general rule of non-liabiltiy of general contractors set forth in Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 509 (2003), ( if the contractee negligently employ an incompetent or untrustworthy servants, the contractee will be responsible for the resultant injury) An independent contractor must be competent and skilled to relieve his employer of liability for his torts. Lawrence v Shipman, 39 Conn 586( 1873 ). The liability for negligently selecting a sub-contractor may be based upon not only what the Contractee knew or should have known at the time of hire but also what they learned while they continued to retain said contractor Shore v Stonington , 187 Conn 147 (1982). Federal law and Connecticut jurisprudence both support the finding of a duty to act where the issue has been considered and in effect voted upon by governmental agencies and technical groups with relevant knowledge and experience to the issues at hand. Wendland v. Ridgefield Construction Services, Inc. 184 Conn 173 (1981). (OSHA safety regulations are admissible as evidence of negligence and proper for a jury to consider). On construction sites, for example, workers have repeatedly died from scaffold falls and trench excavation collapses because basic mandated safety precautions were ignored . Many General Contractors naturally possess an understanding of the important role which accepted work site safety standards and sub-contractor hiring procedures have in assuring worker safety. Given sufficient experience background or knowledge, an earnest inquiry can readily demonstrate whether or not the sub contractor demonstrates adequate capabilities to perform work utilizing properly trained, equipped and supervised workers. It similarly takes very little time to inquire of the sub-contractor whether or not they hire undocumented workers, pay cash wages, overtime pay, make employer FICA and Medicare contributions, and carry workers compensation insurance in the event of accidental injury. Beyond the ken of a negligence claim on suitable facts allegations of recklessness and Unfair Trade Practices have a role to play. Sadly, some general contractors would rather not inquire into or pretend not to know about their sub-contractor's deficient safety, wage and labor practices as they benefit financially from this less expensive source of non employee labor. It is part of their own method of doing business. To reputable general contractors, this is an unfair method of competition and an unfair business practice as well from the injured worker's standpoint. The conduct at issue is decidedly unfair, deceptive, immoral and unscrupulous and may well violate the dictates of Connecticut General Statutes Section 42-110b, referred to as Connecticut's Unfair Trade Practices Act (CUTPA).
Given the high frequency of serious injuries in the construction field as compared to many other industries according to OSHA's statistics, the gravity of the departure from ordinary care in carelessly hiring such a contractor smacks of recklessness. The applicability of a recklessness claim against a general contractor would further seem appropriately premised upon an awareness of the danger posed and the deliberate disregard of same, whether the motive is profit or sheer indifference.