The Connecticut Supreme Court has recently issued two opinions clarifying the duties owed by a general contractor on a job site. In Pelletier v. Sordoni/Skanska Construction Company, 286 Conn. 563 (2008) and Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20 (2008), Supreme Court Justice Peter T. Zarella, writing for a unanimous court in both opinions, held that a general contractor can delegate out the duty to maintain a safe job site to a subcontractor.
Existing principles of liability
Inherent in the general contractor/subcontractor relationship is the argument of who owed a duty to the injured worker. â€œThe existence of a duty of care is an essential element of negligence. . . . A duty to use care may arise from a contract, from a statute or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate the harm of the general nature of that suffered was likely the result from his act or failure to act.â€ Ward v. Greene, 267 Conn. 539 (2004). In the context of construction, duties arise from building codes and regulations.
As a general rule, â€œan employer is not liable for the negligence of its independent contractors. Douglass v. Peck & Lines Co., 89 Conn. 622 (1915). â€œThe explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.â€ 2 Restatement (Second), Torts Â§ at 409, comment (b).
This same rule applies, as a general matter, to general contractors as employers of independent subcontractors: a general contractor is not liable for the torts of its independent subcontractors. Douglass, supra, 89 Conn. at 627.
As the Supreme Court recently held, general contractors do not have a nondelegable duty in maintaining a safe job site and are not charged with the duty of maintaining a safe job site if they subcontract that duty to a third party.
In Pelletier, an injured worker argued that the general contractor on the work site had a nondelgable duty based on the National Building Code which was adopted by C.G.S. Â§ 29-252. Sordoni Construction Company (â€œSordoniâ€) was the general contractor on a construction site. The plaintiff, Mr. Pelletier, was an employee of Berlin Steel Construction Company (â€œBerlin Steelâ€), the structural steel fabrication and erection subcontractor for the project. Id. at 568. Sordoni hired Professional Services Industries, Inc., (â€œProfessional Servicesâ€) to inspect the work performed by Berlin Steel. Id. Pursuant to the subcontract between Sordoni and Berlin Steel, it was Berlin Steelâ€™s responsibility to provide the structural steel for the project and to ensure the quality and integrity of the steel. Id. This duty included inspection of all the steel welds at the job site. Also pursuant to the subcontract, Sordoni reserved the right to inspect the structural steel, â€œsolely for its own benefit.â€ Id. The contractual documents emphasized that Sordoni’s â€˜[i]nspection and acceptance, or failure to inspect, shall in no way relieve [Berlin Steel] from [its] responsibility to furnish satisfactory material strictly in compliance with the [c]ontract [d]ocuments.â€ Id.
The plaintiff was injured when a steel beam that was preliminarily welded into place, fell from the structure striking him and causing grave injury.
Mr. Pelletier argued that the building code created a nondelegable duty on the part of Sordoni to inspect the welding at the site. (Sordoni subcontracted with Berlin Steel to inspect the welds and further subcontracted with Professional Services to inspect the work of Berlin Steel.) The Connecticut Supreme Court disagreed and held that the code did not create a nondelegable duty. In this groundbreaking decision that overturned a $41 million verdict, the court ruled that a contractor does not have a nondelegable duty if it assigns the inspection, safety and maintenance of the job site to a sub contractor. The court held that a contractor does not have â€œnondelegable duty to inspect the [work site], but, rather a duty to â€œprovideâ€ such inspections, and in furtherance of this duty, must submit to the state a complete list of materials and work requiring special inspections, the inspections to be performed and the individuals, agencies or firms to be retained for conducting the inspection.â€ Id. at 582. (Emphasis added.)
In Archambault, the general contractor, Konover, subcontracted with Soneco to perform excavation work on the job site. The subcontract required Soneco to comply with all applicable federal, state, local or other regulatory agenciesâ€™ safety rules and to maintain a safe worksite. While performing excavating work, an employee of Soneco was injured.