CONSTRUCTION LAWLETTERS

FOR INDUSTRY PROFESSIONALS, MANAGERS, TRADES & SUPPLIERS

J. NORMAN STARK, ATTORNEY-AT-LAW

JURIS DOCTOR, B. ARCHITECTURE, B.F.A

Vol. 2001-5  May, 2001

CONSTRUCTION SITE NEGLIGENCE

Query: What is the owner's liability for an employee of an independent contractor injured on the job?  Answer: An employee of an independent contractor, who was struck by a pipe while painting at a power company, brought a negligence action against the plant’s owner.  The Trial Court granted a directed verdict for the power company and the Court of Appeals affirmed, stating that “…painting in a power plant involved inherent dangers of which the painter should have known.”  In addition, the Court held that since the power company did not actively participate in the painter's work, it was not liable for his injuries.

Ohio’s laws of negligence require that a plaintiff must demonstrate: “(1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached the duty of care; and (3) that as a direct and proximate result of the defendant’s breach, the plaintiff suffered injury.”  The issue of duty is a “…fundamental aspect of establishing actionable negligence.” Ohio laws impose a specific duty upon those who hire independent contractors to do work on their property: an owner or occupier of land must provide workers with a safe place to work.  This includes providing warnings of known dangers.

However, an important exception to the rule provides that the duty of care owed to an independent contractor does not apply to hazards which are “inherently and necessarily present because of the nature of the work performed.”  Inherently dangerous work includes tasks which “contain elements of real or potential danger.”  The environment where the work is to be performed can be as much of a factor as the work itself. 

The following are considered inherently dangerous tasks by Ohio’s courts: • painting a partially de-energized substation • working around electrical fields • hanging wall fabric with a scaffold • installing preassembled roof trusses • inspecting abandoned home with no electricity, and • working on a construction site.

The inherently dangerous exception applies only if the independent contractor is aware that “real or potential dangers” surround the work he was hired to do.  For the independent contractor to be aware of the inherent danger, it need not have actual knowledge of the danger; constructive notice of the danger will suffice.  Despite this exception, owners or occupiers of land may still be liable for the injuries of an independent contractor.  The inherently dangerous exception will not apply when the owner or occupier actively participates in the independent contractor’s work. Directing the activity which results in the injury and/or giving or denying permission for the critical acts that led to the employee’s injury amount to active participation.  Retaining the “sole control over the safety features necessary to eliminate the hazard” also constitutes active participation. Neither supervising nor exhibiting concern for the worker’s safety is considered as active participation.

     The Court of Appeals, in Frost v. Dayton Power and Light Company (2000) 138 Ohio App.3d 182, applied all of these aspects of Ohio negligence law, and concluded that Dayton was not responsible for Frost’s injuries, particularly since Frost was working in an industrial setting where hard-hats were required.  This, the Court determined, should have put him on notice that the potential for falling objects existed.  Furthermore, the Court determined that Dayton’s act of supervising Frost and ensuring that the work was done according to its specifications did not amount to active participation


Author:  J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has had experience in business, Construction, Real Property, Litigation and Construction-Legal Project and Crisis Management.

 


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