Contractor Injury Liability Explained
When a contractor gets hurt on someone else’s property, will the homeowner have to pay for their injuries? This is one of the most common questions that I see in person and in my inbox.
Imagine a carpenter working on a home. They slip on some spilled beverage or have a fall in a stairwell that’s poorly lit and not equipped with a handrail. Whether they’ll be able to sue the homeowner depends on various factors. Each case is different, and the circumstances will play a huge role in determining what a contractor would be entitled to if they were hurt at your house.
This is dangerous territory when we’re discussing homeowners hiring contractors. If at the end of the day you wind up having to write a check to cover a contractor’s injuries, it may not just be one contractor….it could easily escalate to the "everyone piling-on" type of situation…you know, like you see on TV where you have a dozen ambulances racing to the same big accident scene.
One question that I hear all the time is "What is liability?" It’s a fantastic question. Let’s break it down into bite-sized bits.
Liability is the legal responsibility one party has to another. In every context, a party can be held legally responsible for harm that comes to another. So, if you hit somebody with your car, then you can be held legally responsible or liable to the person you hit.
One way that a party may be relieved of liability is by proving that he or she was not at fault. That is, if a contractor was injured, then maybe his injuries weren’t due to the homeowner’s negligence . Maybe he was at fault himself. In other words, the contractor slipped because the floor was slippery, not because the homeowner didn’t get the spill cleaned-up quickly enough.
So, with that in mind, let’s say that the slippery floor was the homeowner’s fault. Would the homeowner leave the scene of the accident and take-off without having the contractor’s medical bills in mind? Of course not! It is a homeowner’s responsibility to provide a safe work environment.
The home safety laws are called the "Duty of Care." This means that everyone has a duty to provide others with a certain level of protection against unreasonable risks of harm. This level of protection may be provided by warning others, slowing down, sounding alarms, reposting caution signs, getting out of the way, etc.
The "Duty" we’re talking about oftentimes comes in the form of something called "occupier’s liability." This type of liability has various sub-categories, and it applies generally to people who own both residential and commercial properties. An "occupier" has a duty of care to provide reasonably safe premises to contractors and customers, an obligation to warn visitors of hazards he or she is aware of or ought to be aware of, and an obligation to fix any known dangers.
In commercial property claims, the owners are strictly liable for any injury that is caused by a condition that was not safe, unlike residential property claims, where the homeowner is only liable if he or she knew about the condition.
When Homeowners May Be Liable
Just as in the case of homeowners, there are instances where homeowners are able to be held liable for the injuries or accidents of contractors, subcontractors or other workers performing work on their property. In order for a homeowner to be held liable to contractors or other employees, the plaintiff must first be able to prove that there was a dangerous condition or hazard on the property. Furthermore, it must be proven that the contractor or other injured employee was not fully aware of the danger of the condition or hazard, and that the homeowner failed to provide any kind of warning about the particular danger or hazard, which caused the injury to the plaintiff.
However, if the contractor or employee was totally unaware of the hazard, then the plaintiff’s negligence claim is unlikely to be successful, because the contractor had a duty to inspect the premises prior to undertaking any type of work. If the plaintiff had knowledge of the dangerous condition and decided to take the risk, then the plaintiff’s conduct would be considered negligent, barring them from recovering damages. Therefore, the homeowner would be held liable for any and all injuries posed by such a warning. In this circumstance, the plaintiff retains full rights of recovery. In essence, both parties could be negligent, or one could be solely negligent.
Rights and Remedies for Contractors
While homeowners can sue contractors for "poor workmanship," contractors do not have the same remedy available to them for construction accident worksite injuries. When a contractor is injured at a construction site, he or she is rarely able to start a lawsuit against the homeowner or property owner because of the manner in which liability is apportioned and insurance is secured in Florida. However, few injury victims realize they are not prevented from filing claims for worksite injuries against multiple parties who share fault in the incident. State law requires each potential defendant to bear responsibility for the extent of their caused injury, in direct proportion to evidence of their causation in the matter. This principle — often called comparative negligence — can help contractors secure compensation from negligent parties who contributed to their injuries. Relevant for contractors injured at their own worksites is the right to obtain compensation from property owners for hazards existing where they were supposed to ensure safety and where they had authority to control compliance with all relevant safety regulations. This liability often applies to those who hired contractors, including municipalities, commercial clients, and residential property owners. If your injury was due to negligence on the part of one or more third parties, you may be eligible to receive additional compensation via a direct lawsuit — often, this is the only option to secure adequate coverage for serious worksite injuries. An experienced construction injury lawyer can help determine the benefits for your individual case. In the event the contractor is an owner or "concerned party" on that particular job — due to management and administrative authority over contractors — Florida law allows their lawsuits against general contractors who they believe harmed them during their job. In fact, third party claims are the primary source of recoverable compensation for many contractors who are injured at work. Worksite injuries come in many forms, including fall injuries, electrocutions, scaffolding injuries, ladder falls, boom lift accidents, ceiling collapses, nail gun injuries, machine accidents, construction equipment accidents, trench collapses, and burns.
The Workers’ Compensation Equation
As a general rule of thumb, workers’ compensation applies to employers and their employees, as opposed to independent contractors. So long as a business has work carried out for it by employees, it can be made to compensate those employees for most on-the-job injuries, regardless of fault.
However, when homeowners hire contractors, they are not technically employers of those contractors. So if a contractor is injured while working on a homeowners premises, workers’ compensation laws will not apply. In this respect, the law views employers and employees as acting in a specific way in order to help sustain the economy, which means they should be protected when an injury occurs. Homeowners and contractors, by contrast, are perceived as undertaking a contractual relationship; thus, the homeowner would otherwise have no legal obligation to pay anything to the contractor who is injured at his or her home. While it may be unfair to make this distinction between injuries incurred at work and injuries occurring while performing work at home, workers’ compensation laws were meant as a compromise designed to protect both parties.
While contractors have to take the risk that they may not be compensated for an injury at work, there is something of a loophole. If the homeowner exercised too much control over the labor of the independent contractor, the homeowner can be treated as an employee of the contractor, thus allowing the contractor to collect workers’ compensation benefits and enabling the injured contractor to sue the homeowner for negligence.
What a Homeowner Can Do to Protect Themselves
To minimize their exposure to liability for injuries sustained by contractors or subcontractors, homeowners can take several practical steps. First and foremost, homeowners should ensure the work they are hiring someone to perform complies with any related safety standards, including, but not limited to, those enacted under the federal Occupational Safety & Health Administration ("OSHA"), as well as corresponding state and local standards. Such standards often require employers to provide appropriate safety equipment to employees. Performing a large variety of tasks, contractors routinely employ a variety of safety equipment to avoid accidents.
For example, any contractor performing roofing work should be using a safety harness, roof bracket, and these other equipment items designed to prevent falls. Consequently, homeowners intending to hire a contractor to perform roofing work should ensure that the contractor is appropriately equipped with all safety standards. Similarly, homeowners should check that contractors are using other safety equipment. Homeowners should regularly evaluate whether their contractors are performing assigned work safely and reasonably. Homeowners who observe contractors working without safety equipment pose an obvious and significant legal risk should the contractors be needlessly injured in connection with the job, particularly if the homeowner has evidence to suggest that employer provided the necessary safety equipment.
Furthermore, homeowners often task contractors with completing jobs emphasizing the need for stringent safety requirements. Such requirements usually include tasks requiring substantial care and caution – like power washing roofs and garages, sealing crawl spaces, replacing asphalt shingles, and resurfacing swimming pools . When the performance of such tasks has been assigned to a contractor, using a subcontractor may comply with the applicable safety standards for such work, especially the more stringent OSHA standards.
As a matter of good practice, homeowners should keep detailed records of various forms of relevant communication, including but not limited to all emails and letters, between them and any employee who is supervised over an assigned task or job. Further, homeowners should document all communications relating to the status and completion of the assigned work. In cases where circumstances may later suggest that the injured contractor was not without fault, such records may indicate whether the homeowner properly communicated to the contractor any potential hazards or dangers, such as time constraints, the suitability of given worksite, and the conditions or parameters any assigned tasks.
Homeowners should also require contractors to sign a liability waiver and/or insurance agreement. Such an agreement will likely preclude the possibility of an injured contractor ever having recourse against the homeowner. Homeowners should frequently remind contractors of their agreements prior to the performance of any assigned task. Ultimately, enforcement of a liability waiver requires close examination of the terms of any such agreement, especially the scope of the waiver and circumstances under which recovery can be sought. While the appropriate liability waiver language may indicate that a homeowner is free from liability for injuries suffered by an injured party, enforcing the waiver language will depend upon the facts and circumstances surrounding the imposed liability.
Case Precedents and Examples
A body of legal precedents and case studies exists to provide a nuanced understanding of the complex relationship between contractors and homeowners in the event of an injury at the worksite. These case studies illustrate a series of outcomes, and they identify which factors can swing the odds in contractors’ favor.
In the unreported opinion of Geonovese v. Daime, 2016 WL 4521750, Superior Court of New Jersey, Appellate Division, Docket No. A-1527-14T4 (N.J.App.Div., August 30, 2016), the court reversed the lower court’s decision in favor of a general contractor brought by an employee of one of the subcontractors who was injured when he fell from scaffolding. The general contractor hired a subcontractor to complete electrical work in the basement, which was to be done as the work was "turned over" from other subcontractors. Since the basement was being worked on through the duration of the entire project, the general contractor did not provide any area for the subcontractor to set up scaffolds or other equipment elsewhere and insisted that all work be done in the basement. Since the area was always "in flux," the general contractor ordered the subcontractor to supply its own scaffolding and tools, including nets and harnesses, and provided no safety equipment whatsoever.
The Workers’ Compensation judge permitted the contractor’s third-party action to go forward with respect to the general contractor and allowed its breach of contract and negligence counts to continue. The Appellate Division held in favor of the sub-contractor and found that the subcontractor submitted sufficient evidence to establish that "the general contractor supplied the specifications and under superior control, ordered [the contractor] to complete the work in a manner that violated OSHA standards." It remanded the case for a hearing to determine if the general contractor breached its contractual duty under the proceedings.
In another unpublished opinion of Johnson v. Francois, No. A-2340-13T4, 2015 WL 1791579 (N.J.Super.A.D., April 17, 2015), the Appellate Division reversed a finding that the homeowner was entitled to summary judgment on a homeowner’s motion dismissing the workers’ compensation claim of a contractor who attempted to sue the homeowner for injuries sustained after a fall from a scaffold. The plaintiff contractor worked for a company that had a contract with a homeowner to perform exterior work, including repairs to a soffit; a 12-foot-high scaffold was used to complete the work.
The parties disputed whether the homeowner had retained control over the work at the time of plaintiff’s injury. Plaintiff claimed that the homeowner had exercised control over the criteria such as when, how and what quality the repair work should have been completed. The Appellate Division found that there was a broad dispute as to the facts, including whether the homeowner had exercised such control over the "performer of the hired work as to prevent him from exercising his own judgment" regarding the manner of repair despite the allocation of responsibility for the manner of repair between the homeowner and the general contractor.
In Bruce v. Enos, the Massachusetts Supreme Judicial Court recently permitted a claim made by a plaintiff injured on the construction site against the property owners after dismissal of the homeowners insurer. The unique facts of this case were that the plaintiff’s team were employed by the construction manager, and that the homeowners specifically requested that only the Suzio construction crew work at the site for several phases, including the phase where the accident occurred. The court ruled that the intent of owners to protect themselves and keep down costs was "self-serving" under the circumstance "when the homeowners had the moving price quotes from the workers’ compensation carrier." The court continued that this intention "must give way to the public policy of protecting workers on a site."
These examples highlight the imperfections in understanding the interplay of the law, the insulation from liability that a workers’ compensation claim offers and the impact that the homeowners’ direction of construction on the project can have on the outcome of the dispute. A contractor who is injured at the worksite should carefully consider first why the injury was sustained, and whether the general contractor, subcontractor or the homeowner is ultimately responsible.
Conclusion: Assessing Safety and Legal Risk
In conclusion, while contractors express legitimate concerns when considering whether to pursue a claim against a homeowner for injuries sustained on site, they must also navigate the complex web of legal principles that govern these situations. A thorough understanding of the legal responsibilities imposed on homeowners, the potential for liability, and the avenues for compensation can help contractors make an informed decision.
Regardless of whether the situation ultimately results in a lawsuit, contractors can benefit from this awareness. From business formation to contractual relationships to insurance concerns, these legal issues will arise frequently in their professional life . Being able to anticipate and understand how each element factors into the circumstances surrounding a potential claim can speed case resolution and maximize compensation.
The safety of the contractor, workers, and the public is of primary importance, so before taking any action in pursuit of a claim, it is best to first consult an attorney knowledgeable on the worker’s compensation laws and the rights of independent contractors. These professionals are well-positioned to answer all of your questions, ensuring that you make the right choice in pursuing or not pursuing a lawsuit against the homeowner.