Negligence, Liability and Responsibility of the General Contractor

This blog sets out how your lawyer can successfully establish the negligence, liability and responsibility of a General Contractor in a construction accident case.

Any discussion of negligence/liability/responsibility of a General Contractor on a construction site must begin with examining the type of job that was undertaken. What work was the employee and his company doing at the site? How long had they been there? The answer to the last question may help proving liability on the General Contractor because if the client’s crew was lax in its approach to safety, the General Contractor should have stopped that right away. Among the many actors on the site it is the defendant’s General Contractor who has the ultimate responsibility for the construction accident.

As you have seen in prior blogs, an employer cannot be sued in a personal injury case. Therefore, why compare the experience level of the client to other members of his/her crew. The crew is not a party to the case and workman’s compensation is the exclusive remedy against an employer. But analyzing the attention to safety on the employer’s part is still relevant. After all, the jury must decide if your client, the employee, was negligent. Generally, it is a better argument if the client has less experience than others on his/her crew. This is common sense and should come into consideration on the issue of the comparative negligence of the employee/client. It follows that those with lesser experience will be less likely to be deemed comparatively negligent.

But keep in mind that the comparison of negligence is actually between the client and the defendant General Contractor, who is not the client’s employer. Still, it makes sense to point out the difference in experience the client has as compared with the rest of the crew.

In the above, I’ve looked at the length of time work has been done on the site and compared the client’s fellow workers to the client in terms of experience. But there are several more considerations. The finances of a construction project are very important. Those records are available to the client’s attorney. A specific line item should be dedicated to safety and/or supervision. In other words, it may well be that a significant sum of money was earmarked for this work. To whom and for what was this money earmarked for? Often the answer will be that the money was set aside and paid for the General Contractor to conduct supervision and safety. That is a powerful piece of information in the case against the General Contractor. Again, this is common sense.

With an amount that is set aside for supervision and safety, it follows then that the project superintendent or project manager must exercise care in overseeing the property. Consequently, any remarks by a project superintendent or project manager at a deposition or trial along the lines of “I didn’t feel the need to check on that crew” is a weak answer. I submit it is actually a very weak answer.

The duty of the person in charge of the construction site is to exercise supervision and to communicate any safety concerns. This person has been designated by the General Contractor, the presumed defendant in the case, as the one responsible for safety. Nowadays, we hear the term pro-active. People are expected to be proactive. The person at the top, referred to by me often as the “captain of the ship”, must take a proactive approach to handling all matters, especially safety, on the site. The goal is to prevent accidents.

We expect everyone to be careful but on a construction site, where the risk of serious injury or death is so great, all actors at all levels must be careful. Does that include the employee?It is true that an employee, as with other actors, has a duty to act with reasonable care to prevent injury to himself/herself. But we cannot lose sight of the fact that the worker has many concerns. He/she must do the work efficiently and competently. Moreover, there is likely to be pressure on the construction worker to get the job done quickly. Certainly, a worker with financial responsibility does not want to put his/her job in jeopardy. There is a tendency not to want to “rock the boat”. Once again it is my hope that a mediator, judge or jury would understand that. In my experience they have.