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The disturbing trend of expanding job site liability appears to have reached its high point. Recent appellate court decisions indicate that the courts are becoming unwilling to saddle owners and others with liability for job site injuries.

Currently, most workers who are injured while on a job site are covered by worker’s compensation insurance. On occasion, however, despite recovering worker’s compensation benefits, workers will try to seek further recovery against the owner of a project. In Missouri and other states, such attempts at additional recovery, above and beyond worker’s compensation benefits, are meeting with increased resistance.

In a recent case, Smart v. Chrysler Corporation, an injured worker attempted to recover from the owner, as a result of any injury on the job site. Chrysler was retooling one of its two manufacturing plants in Fenton, Mo. The plaintiff, Robert Smart, was an employee of Helmkamp Construction, a subcontractor on the job. Smart was working on a steel platform setting a checkerplate when he fell approximately 40 feet.  Ironically, Smart was wearing a safety harness but the end was not tied off.

Smart filed suit against the owner of the project, Chrysler Corporation, alleging that it had maintained substantial control over the project because Chrysler had published certain safety guidelines, conducted weekly progress meetings and had guards posted at the plant.

As it turned out, plaintiff’s allegations simply did not hold up in the face of the actual facts of the case. Per its contract with the general contractor, a joint venture of ABB Flexible Automation and Fluor Daniel, Chrysler had contractually obligated ABB/FD to maintain safety on the job site. Further, Chrysler, as the owner , had in effect “surrendered” the job site to the general contractor. Plaintiff argued, however, that because Chrysler conducted weekly status/progress meetings with the general contractor and principal subcontractors on the project, Chrysler retained substantial control of the project, including control of safety on the site.

The trial court granted Chrysler’s motion for summary judgment. In doing so, the trial judge ruled that there was simply nothing for the jury to decide because there was no evidence that Chrysler either retained sufficient control of the premises or exercised control over the project, such as to make Chrysler liable to Smart for his injury.

On appeal, the Missouri Court of Appeals affirmed the trial court. The Court recognized that an owner may maintain active involvement in a construction project and, further, may actually take steps to insure that the contractors are complying with the contract documents. An owner simply has a right to do so. Such interest in the project, however, does not expose the owner to tort liability in the event that someone on a job site is injured during construction. Further, the Court recognized that parties to a construction project have the ability to deal with potential risks by way of their contracts. As an example, a general contractor and subcontractor can agree that the subcontractor is specifically responsible for the safety of the subcontractor’s employees.

In Missouri and many other states, the issue of safety will often be determined by contract. In the Smart case, Chrysler had specifically contracted with the ABB/FD joint venture that ABB/FD would be responsible for safety on the project. In fact, there were weekly safety meetings conducted by ABB/FD. Irrespective of contract arrangements, however, the Court further recognized that the owner can retain sufficient control of the work, or be sufficiently involved in the project, such that the owner takes on the responsibility, either directly or implicitly, of safety on the site and, therefore, the owner may be exposed to tort liability.

The key question will be always one of control. Insuring that a project proceeds in compliance with contract documents and maintaining the ability to stop the work if the owner perceives that there are unsafe practices, do not generally rise to the level of “control” such that a court will impose liability on an owner for the injury of a worker. In Smart and other cases, the Court reasoned that, generally, the owner does not have the expertise to manage a job.  Therefore, the owner hires the general contractor and pursuant to that relationship, the owner has a right to rely on the expertise of the general contractor, or other contracting party, to perform the work in a safe manner.

This very contractual relationship, and Chrysler’s lack of actual control of the management of the project, ultimately resulted in a determination that Chrysler was not responsible for Smart’s injury. Responsibility for safety on the job site can be a matter of contract, but the courts will expect the parties to act in compliance with their contractual agreements. If the owner actually directs the work, even in the absence of directing the actual safety aspects of the joy, an owner may be held responsible depending on the degree of actual direction provided.

All parties — owner, general contractor or other participants in a construction project, such as a design professional — should state clearly in writing what each party’s responsibility is as far as site administration and, specifically, safety. Once the arrangements are made, the parties should act in compliance with those agreements. In doing so, each party, in an arm’s length transaction, can properly and fairly both protect its interests in the project and insure that all parties will be particularly aware of the responsibility that they bear as far as safety on the job site.

About the Author: James P. Reinert, Esq. is an attorney with the construction law practice group of the law office of Brown & James. He may be contacted at Brown & James, 705 Olive Street, Suite 1100, St. Louis, MO. 63101; phone 314-421-3400.

This article is published in ConstructionRisk.com Report, Vol. 2, No. 1 (Jan 2000).