Contractor Negligence

Construction sites are by nature very dangerous places. There is the movement of heavy equipment, falling equipment, use of dangerous tools, collisions, untrained laborers and hazardous conditions that too often result in catastrophic injuries or even death.

This danger is enhanced by the fact job sites are often a patchwork of companies and employees. Construction projects are often carried out with general contractors employing numerous subcontractors. Too often, there is communication breakdown where safety is concerned and that’s when accidents happen.

Experienced construction accident lawyers at Associates and Bruce L. Scheiner, Attorneys for the Injured, know the hierarchy of companies on construction sites can make it difficult to ascertain who may be liable.

Workers’ Compensation vs. Third-Party Litigation

Most workers who are injured on-the-job are entitled to workers’ compensation. It’s the only remedy employees have to collect damages from an employer – even a negligent employer. The good news is workers don’t have to prove the company did anything wrong in order to collect benefits. In fact, workers can even collect when they are the ones at fault. The bad news is the funds received through that insurance program are modest, and often aren’t adequate to cover all expenses, particularly if the injury was catastrophic or fatal.

The only exception to this immunity where an employer is concerned is when there is an intentional tort. That means the employer intended for the worker to be hurt. Under F.S. 440.11, exclusiveness of liability, workers have to show the employer engaged in conduct known to be almost sure to result in risk of serious injury or death to the worker, that the employee wasn’t aware of the risk and it wasn’t apparent and that the employer intentionally covered up or misrepresented the danger, preventing the worker from making an informed judgment. This standard is difficult to overcome, and rarely are workers granted permission by courts to proceed with a claim of intentional tort against an employer.

However, there may be an opportunity to for third-party litigation against other contractors on site. It depends on the situation, and each claim is going to be weighed carefully by the courts. Many general contractors and subcontractors, when faced with a third-party liability negligence claim, will assert immunity under workers’ compensation law. Sometimes this is effective. Other times, it is not. But even when it is, there may still be opportunity to pursue a claim.

Subcontractor Negligence

Florida courts have held that subcontractors can be liable for the negligence of their employees when those actions result in injury to workers of other subcontractors. But again, it depends on the situation.

For example, in the 2013 case of Villalta v. Cornn Intl., Florida’s First District Court of Appeals weighed whether the family of a deceased employee of a subcontractor could sue another subcontractor whose workers were allegedly negligent. The worker was finishing drywall when his ladder slipped into a cutout left by the HVAC subcontractor, who reportedly failed to cover the cutout or warn others of its existence.

Trial court ruled subcontractor was immune per the vertical relationship established in Latite Roofing & Sheet Metal Co. v. Barker, by the 4th DCA, among other case precedent. The exception, however, would be gross negligence rather than intentional tort. Plaintiff would have to show willful and wanton misconduct. Defense argued that wasn’t shown, and trial court granted summary judgment in its favor. However, the 1st DCA reversed, arguing such a finding is a matter of fact for a jury to decide.

Sometimes in cases where subcontractors are liable, it may still be worthwhile to pursue action against the general contractor, the entity that is often the largest and carries the most insurance coverage.

General Contractor Negligence

General contractors on construction sites are referred to as the “principle,” while the subcontractor is known as the “independent contractor.” General contractors aren’t usually liable for negligence of independent contractors, but there are exceptions to this rule.

These exceptions include:

• Negligent selection, supervision or instruction of the subcontractor
• Hiring an independent contractor for work that is inherently or especially dangerous
• Work in which general contractor can’t delegate its duty of care to another party

Often key in these determinations is the degree to which the general contractor retained control over the work for which the subcontractor was negligent. Courts will look at whether the general contractor was in the best position to identify and minimize the risk of subcontractor activities.

In some cases, there could be strict liability for work that is considered abnormally dangerous. In these cases, plaintiffs would have to prove harm was likely even with the exercise of reasonable care. However, if subcontractors fail to proceed in accordance with the law or generally accepted practice, the general contractor might have a stronger argument against liability.

It’s worth noting general contractors are usually responsible to ensure work is done safely by trained employees of companies with adequate financial resources (i.e., workers’ compensation insurance) to assist accident victims. If a general contractor fails in this duty, workers may be granted permission to pursue litigation against the general contractor, even if it otherwise would have received statutory immunity.

Our experienced Florida construction accident lawyers can help you sort through the tangled issue of liability to determine the best way to maximize your compensation for work injuries.

Contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.

Call 800-646-1210 for a Free Consultation