by Matthew E. Vinciguerra, Associate

Introduction

In the Summer 2007 edition of this newsletter, I wrote an article explaining how a general contractor’s liability for jobsite safety violations had recently undergone a dramatic change.  (New Fall Protection for Contractors: How the OSHA Review Commission has Changed Your Exposure to Project Safety Liability, also published in The Safety Newsletter of The Heavy Construction Contractors Association, Sept./Oct. 2007).  The article explained a decades-long inconsistency in the application of what was known as the “multi-employer worksite doctrine,” and how the OSHA Review Commission’s decision in Secretary of Labor v. Summit Contractors, Inc. resolved that inconsistency in the general contractor’s favor.  For the thirty years prior to this decision, a general contractor could be penalized by OSHA for jobsite safety violations committed by virtually any subcontractor, tradesman or laborer on the jobsite, even if the general contractor did nothing to create the condition giving rise to the violation.

The Summit Contractors decision confirmed that, in a multi-employer setting, where multiple trades and tiers of contractors are working on a project, OSHA may no longer penalize one employer for the safety violations of another.  This redefinition of the multiemployer worksite doctrine provides general contractors with additional protection from liability for safety violations they were not best situated to correct, and therefore prevents general contractors from being forced into untenable (and costly) supervisory roles.

States Following Suit

Summit Contractors was a federal regulatory case addressing safety violations.  Recently, individual states have begun to take similar steps more accurately to assign jobsite injury liability to the party best situated, by virtue of its supervisory responsibility or even direct control, to provide for a safer work environment and to prevent accidents.  This party is often not the general contractor.  In fact, the “Common Work Area Doctrine” provides that the general contractor is not liable unless (1) it failed to take reasonable steps within its supervisory and coordinating authority (2) to protect against readily observable and avoidable dangers (3) that create a high level of risk to a significant number of workers (4) in a common work area.  The doctrine focuses on who has control over the dangerous condition.  Like the multiemployer worksite doctrine discussed in Summit Contractors, it applies to situations where several workers are in a common area of the job featuring a dangerous risk to the safety of those workers.
 
The Common Work Area Doctrine

The Common Work Area Doctrine was created by a 1974 Michigan case, Funk v. General Motors Corp., which involved a subcontractor’s employee who was not using fall protection while working on a platform near the ceiling of a General Motors plant.  The worker fell and sustained serious injuries.  As originally conceived, the Common Work Area Doctrine imposed liability on the general contractor only if it failed to prevent negligence.  The court in Funk relied upon the general contractor’s supervisory and coordinating authority to find a duty to guard against readily observable, avoidable dangers in common areas that threaten a significant number of workers.

Importantly, the danger giving rise to the accident could not simply be the unavoidable nature of the construction site itself.  The danger must be avoidable, and a significant number of people must be exposed to it.  As described below, the Michigan trial court in Latham v. Barton Malow Company identified the relevant danger from the Fink decision as the height at which the plaintiff was working.  The Latham case involved a similar fall.  Although the appeals court agreed, the Supreme Court of Michigan noted that this danger was an unavoidable characteristic of the construction site.  The misidentification of the relevant “danger” for purposes of Common Work Area Doctrine analysis rendered the lower courts’ positions fatally flawed, and the Michigan Supreme Court reversed their decisions, in the general contractor’s favor.

Latham v. Barton Malow Company

In the Spring of 2008, the Supreme Court of Michigan addressed the Common Work Area Doctrine focusing on two questions: what is the relevant “danger” to be analyzed, and which employer, on a multi-employer worksite, was best situated to reduce or eliminate the risk posed by that danger.  These issues arose in the context of the construction of a school building, and the court determined that the general contractor was not necessarily liable for a subcontractor’s injuries suffered due to an avoidable jobsite danger.

Plaintiff Latham was a carpenter working on the construction of a new school and Defendant Barton Malow Co. was the general contractor and construction manager.  Part of the carpenter’s scope of work included moving sheets of drywall from a lift onto the mezzanine level of the project.  To do so, the lift operator raised the lift to the level of the mezzanine and the workers above removed the cable barrier surrounding the mezzanine level so they could move the drywall from the lift to the mezzanine.

As Latham was moving the first sheet of drywall from lift, the sheet cracked, he lost his balance and fell about 15 feet.  He was not wearing fall protection, although he was aware of jobsite rules requiring him to do so.  Latham would not have been injured had he followed those rules.  Latham sued Barton Malow Co. for negligence under the Common Work Area Doctrine, alleging that it had failed to ensure that Latham would use proper fall protection while working in elevated areas.  Latham alleged that there was a high degree of risk to a significant number of workers because many other workers from a variety of trades would be required to use the lift to access the mezzanine and lower the cable to access the work area.
 
The Trial Court Misapplied the Common Work Area Doctrine

Instead of focusing on the Latham’s failure to use fall-protection, the initial hearing examined the lack of permanent perimeter protection to prevent accidents and the large number of workers in that area who therefore were exposed to the risk of falling.  Pulling these factors together in Latham’s favor was the trial court’s conclusion that the defendant general contractor had supervisory and controlling authority over the area of the jobsite in question.

Thus the trial court agreed with Latham that the relevant “danger” for Common Work Area Doctrine purposes was “working on an unprotected, raised level” and that a significant number of workers were exposed to this danger because many of them worked on the mezzanine level.  The appeals court agreed.

The Supreme Court Clarified the Correct Application of the Common Work Area Doctrine

The defendant general contractor continued to appeal its case before Michigan’s highest court.  Importantly, the Supreme Court of Michigan noted as a general matter that the “danger” causing the injury cannot be the unavoidable nature of the site itself.  The danger must be avoidable.  Specifically, what this meant for Latham and Barton Malow Co. was that the mere fact of working at a significant height could not be the relevant focus.  Otherwise, virtually every construction site would feature the danger giving rise to general contractor liability, should any injuries result from a fall.

Instead, under the Common Work Area Doctrine, the danger must be avoidable.  Thus, the “danger” in this case was working at a significant height without using fall protection.  This danger was avoidable by use of the fall protection required by jobsite rules, of which Latham was well aware.  Because the lower courts failed to properly identify the “danger,” the Supreme Court found in Barton Malow Co.’s favor and ordered the lower court to re-examine the case accordingly.  Under the Michigan Supreme Court’s decision, Latham will have to show that the failure of a significant number of workers to use fall protection was readily observable, that this failure was avoidable, and that Barton Malow Co. failed to take reasonable steps to ensure that Latham used the fall protection.  This failure must have created a high degree of risk to a significant number of workers in the common work area of the mezzanine.  This is an extremely high threshold of proof under the circumstances, especially considering Barton Malow’s argument that Latham’s employer was contractually responsible for its workers’ observing proper safety procedures.

This calls to mind the OSHA decision in Summit Contractors, which established a new general rule whereby one employer would not be found liable for the safety violations of another.  In Latham, the general contractor was not necessarily liable for the safety violations of the carpentry subcontractor, who was better situated to avoid the danger.

What Latham Means for General Contractors

The Michigan Supreme Court’s recognition that the danger must be avoidable serves as a reminder that general contractors cannot reasonably be expected to remove all potential hazards from a construction worksite, or else face liability for injuries sustained because of them.  If a hazard cannot be removed, such as working at heights, then a general contractor’s only responsibility is to take reasonable steps to reduce the risk of harm.  This can be done by including clauses in subcontracts that require subcontractor compliance with and enforcement of safety procedures.

Perhaps most importantly, the Latham case illustrates a similar point to that in the Summit Contractors OSHA case – that liability for jobsite accidents, as with jobsite OSHA violations, must attach to the party best situated to eliminate the avoidable risk of injury.  In both cases, general contractors were protected from liability for jobsite conditions not of their making and over which they had little control or even knowledge.  Both cases appear to put the brakes on what were expanding interpretations of doctrines intended to ensure workplace safety.

Summit and Latham recognize that when liability for jobsite safety violations or jobsite accidents can attach to parties who did not create the jobsite conditions, and perhaps had no knowledge or control over them, the incentive for the creating party or controlling party to observe proper safety practices may be dramatically reduced.

Summit, Latham and cases like them serve as a reminder to participants in multi-employer projects that liability for jobsite safety violations and the accidents that can occur because of them attaches to the party responsible for creating the dangerous condition.  This may not always be the general contractor.

The information or opinion provided in this article is the author's own and not necessarily that of Watt, Tieder, Hoffar & Fitzgerald, LLP. The author is solely responsible for the information and opinion that he or she has provided. The information contained herein does not replace seeking specific legal counsel to directly address individual client needs.
 
Watt, Tieder, Hoffar & Fitzgerald is one of the largest construction law firms in the world, with a practice that encompasses all aspects of construction contracting, claims and disputes resolution, and transactional legal services. WTHF principally represents large general contractors, design firms, and sureties throughout the country and internationally.