In this
recent opinion from the First District, the Court has upheld that a general's
control through asserting its authority to stop work due to safety violations
by its sub; the mandate that the sub hold weekly safety meetings and submit the
minutes of those meetings for the general's review; and the subs contractual
obligation to submit a site-specific safety plan all amount to enough retained
control to present an issue of fact as to the general's liability under §414 of
the restatement of torts.
§414 states
in relevant part that:
"One who
entrusts work to an independent contractor, but who retains the control of any
part of the work, is subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care, which is caused by
his failure to exercise his control with reasonable care."
In the case
of Wilkerson v. Schwendener (1-06-2653) the plaintiff was the employee of a sub
and was placing some joists on a second floor of a retirement home project when
his co-worker handed him a joist and struck him in the foot.
The general
had won summary judgment on the issue of §414 liability where it claimed to not
have retained control of its subs work.
The Court found that the general had retained control where it required
its sub to (1) comply with a 21 part list of safety regulations generated by
the general; (2) hold weekly safety meetings and submit the minutes of those
meetings; (3) prepare and submit a site-specific safety plan; and (4) attend
the general's weekly safety meetings.
Additionally, at some point prior to the plaintiff's accident the
general had sent a letter to the sub stating that the sub needed to get its
safety program in order or the general "WILL STOP" (yes, it was all caps in the
actual letter) the sub from continuing its work.
The Court
noted that generally, just having a supervisory role over safety would not have
implicated the general in §414 liability, but here, with all the factors taken
into account, and the threat of stopping the work if safety was not performed
properly, the general did retain sufficient control and with it, liability.
This raises
some interesting questions regarding safety.
We know that a general wants to eliminate workplace accidents and that
if it is not in charge of workplace safety, its subs might not toe the line (as
here). We also know that a general can't
be everywhere at once on a job site. So
what should a general do now? Should
they be standing back and not getting involved in safety programs and full-on
supervision? Would that increase the
number of accidents, but shield generals from liability under §414? It seems a bit ridiculous that because a
general was concerned with safety (preventing accidents) and interceded in
different ways to increase safety (increase the prevention of accidents) that
it should be held to be liable under §414 where its sub didn't have adequate
safety in place in order to protect its own employees but where it did try to
get the sub to conform to the plan and put adequate protections in place. If the general hadn't had a plan and hadn't
butted in, and hadn't threatened to stop the subs work, the accident would have
happened, probably sooner, but it would be able to stand back and have a better
argument against §414 liability. The
general didn't control all the safety, and unless there's a reason to believe that
the sub would have put in place different and better safety measures than it
could under the general's program, it's a bit ridiculous to say that the
general should be at fault because it took certain steps to get the safety
program of its lackadaisical subcontractor.
