From the desk of Ryan McLellan: Courts often find a way to make general contractors liable for the injuries of their subcontractor’s employees. In this case, however, the Court of Appeals found that the general contractor was not liable in negligence or under Oregon’s Employer Liability Law for the injuries sustained by an employee of a subcontractor that fell nineteen feet while on a jobsite.
Claims Pointer: Careful delegation of responsibilities between the general and a sub can help to avoid liability in jobsite injury claims. In this case, the general was responsible for general safety, required a safety plan from all its subs, and even directed some of the subs’ employees in safety matters—and still the Court of Appeals found that no reasonable juror could conclude that the general was liable as an employer or under a theory of negligence.
Yeatts v. Polygon Northwest Co., 268 Or App 256 (2014).
Polygon Northwest Company was the general contractor for a townhouse development project. Polygon’s role as general was to manage the site, observe and correct safety violations, and conduct weekly meetings with subs regarding scheduling, plans, and safety issues. Polygon subcontracted with Wood Mechanix, LLC. for framing work on the project. The contract provided that Wood Mechanix would “be responsible for providing a safe worksite,” would “be responsible for safety,” would develop a site-specific safety plan and would submit its plan to Polygon before beginning the project. Wood Mechanix also agreed to meet with Polygon’s superintendent to verify in person that it would comply with safety measures. Wood Mechanix verified during that meeting that it was providing its own “Fall Protection Program” (which included a guardrail above the second floor) and that the program would be managed by its own staff.
Arthur Yeatts, an employee of Wood Mechanix, was working on the third floor of the project when he fell 19 feet after he leaned on a guardrail (installed by Wood Mechanix) that gave way. Yeatts filed a lawsuit, alleging that Polygon was liable under the Employer Liability Law (ELL) and for common law negligence. Polygon moved for and won summary judgment on both claims. Yeatts appealed.
The Court of Appeals faced two questions: (1) was Polygon an “indirect employer” under the ELL; and (2) did Polygon owe a duty to Yeatts to install, maintain, or warn of the dangers of the guardrail. First, in order for the court to rule that Polygon was an employer, it needed to determine whether Polygon exercised control over the activity of Wood Mechanix’s employees. The court applied three tests: the “common enterprise” test, the right to control test, and the actual control test. The court concluded that Yeatts’ arguments failed under all three tests applying the same general set of facts. The court reasoned that even though Polygon had required a guardrail to be installed, had made reference to the guardrail in its safety plan, and was generally responsible for observing and correcting safety violation, it did not create a risk of danger that contributed to Yeatts’ injuries. In short, Polygon had delegated the installation, maintenance, and control of the guardrail over to Wood Mechanix.
Another important fact was that although Polygon had the right to accept or reject Wood Mechanix’ safety plan prior to beginning work, Polygon did not retain any control over the implementation of that plan (including guardrails) after the work had begun. Likewise, Polygon did not exert control after work had begun by pointing out safety violations. Yeatts argued that earlier in the day a Polygon employee had told him to “put his hard hat on and to ‘go up there and finish something,” and that such a command constituted control over the employee. Again, the court reasoned that Polygon had not asserted any control over the guardrail, which was the mechanism that caused Yeatts to fall. Ultimately, the court ruled that Polygon was not liable under the ELL because it did not have any control over the manner and method of the risk-producing activity that resulted in Yeatts’ injuries.
Similarly, the court concluded that in regards to the negligence action, Polygon did not owe a duty to Yeatts. Normally, general contractors do not owe a duty to persons injured by their subs (in this case, Yeatts) unless there is some independent basis to do so. Polygon argued that the only way it could have owed a duty to Yeatts was under the “special expertise or knowledge” rule. While Yeatts argued that Polygon owed a duty because it required Wood Mechanix to use guardrails, the Court of appeals ruled that no duty existed because Polygon did not have expertise with implementing guardrails nor did it specifically require Wood Mechanix to use guardrails as opposed to some other safety device. Furthermore, even though Polygon had its own safety manual requiring guardrails, it could not be used to establish Polygon’s control over the guardrail because that manual had never been disseminated to the subcontractor.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.