A project owner, Lafayette College, entered into a construction management agreement with a general contractor to renovate a building, and that firm in turn subcontracted the renovation work to  other contractors, one of whom performed the roofing work.  An employee of the roofer climbed scaffolding that had been installed by a masonry subcontractor, and fell from that scaffolding suffering serious injury as a result.  The employee sued the construction manager/general contractor, as well as the masonry subcontractor and the college – alleging that they all were negligent.  The Supreme Court of Pennsylvania held that although the college exercised some authority regarding safety, and the college regulated access to, and use of, certain areas of the premises, this conduct did not constitute the type of control that would subject it to liability since it did not thereby retain control over the actions of the independent contractors.    Beil v. Telesis Construction, Inc., 11 A.3d 456 (Pa. Supreme Ct. 2011).

This case is interesting in that the college’s summary judgment motion was denied at the trial level and the case went to trial, with a jury awarding damages in the amount of $6.8 million – 35 percent of which was attributable to the college.  The college filed post-trial motions seeking judgment n.o.v. (“not withstanding the verdict”) which was denied.  The college appealed to the intermediate level appellate court of Pennsylvania (the Superior Court) which reversed the lower court decision.  This was appealed by the roofer’s employee to the Supreme Court of the state which affirmed the decision in favor of the college for the reasons explained herein.

As a general rule in Pennsylvania, a party who hires an independent contractor is generally exempt from liability for injuries sustained by that contractor’s employees.  In Pennsylvania, “a property owner has no duty to warn the contractor or its employees of conditions that are at least as obvious to the contractor and its employees as they are to the landowner.  Responsibility for protection, and liability for negligence, therefore, is placed on the contractor and its employees.”  There is an exception to this general rule, however, where the property owner who hires the independent contractor retains control of the means and methods of the contractor’s work.  So the question to be decided in this case was whether certain actions by the college constituted retention of control over the contractor’s means, methods and procedures.

The college retained a right to inspect and approve “all material and equipment purchased” by the masonry contractor.  The college’s own project manager maintained a regular presence on the work site and knew the scaffolding did not have fall protection.  The masonry contractor consulted with the college on the placement of the scaffolding since the college did not want it to interfere with entrance into its classrooms, but the college did not direct the contractor on how or when to erect the scaffolding.   Witnesses for the general contractor testified that the CM/GC was “in complete control of the project and responsible for the safety of its subcontractors, including [the roofer] and its employees.”   Additionally, the lower court found the college did not retain control over the means and methods of the operative details of the masonry contractor’s work.  Even if the college had directed the masonry contractor on where to place the scaffolding, the court concluded this “did not constitute such a retention of a right of supervision that [the contractor] was not entirely free to do the work on its own.”

With regard to the CM/GC contract, the lower court found that the CM/GC was responsible for the work performed at the site and the subcontractors agreed to all safety requirements set by the CM/GC, and the college did not retain control over either the construction manager’s or the roofer’s operations.

On appeal, the employee argued that, based on the facts, the court should have found the college retained control and was liable for the injuries.  One argument by the employee was that because the CM/GC failed to control the masonry contractor, the college must be deemed to have been in control of project site.  The Supreme Court was not impressed by that argument, and appeared to focus instead on the right of the CM/GC under its contracts to tell its own contractors and the subcontractors not to use the masonry contractor’s scaffolding.   More important to the court’s consideration, however, was the following explanation:

The College also offers the policy argument that the purpose of the right to inspect work, and even impose additional safety requirements, is simply to encourage contractors to work more safely. The College posits that, if liability can be imposed upon a property owner such as the College for encouraging contractors to work safely, the message to the owners will be that they are better off closing their eyes to construction activity and allowing contractors to work with no input or observation from property owners.

The court stated:

The control required to implicate the exception to the general rule against liability can be demonstrated in two ways. First, a plaintiff may point to contractual provisions giving the premises owner control over the manner, method, and operative details of the work. Alternatively, the plaintiff may demonstrate that the land owner exercised actual control over the work. As a general proposition, the question of the quantum of retained control necessary to make the owner of the premises liable is a question for the jury. When, however, the evidence fails to establish the requisite retained control, the determination of liability may be made as a matter of law.

 In its holding for the college, the court explained that the employee’s “assertions that safety-related conduct at the work site establishes the requisite control is contrary to consistent pronouncements by our … courts rejecting such arguments as against public policy.”  The court further explained:

Drawing on this prior case law, we hold that a property owner retaining a certain degree of authority over safety issues, such as supervising and enforcing safety requirements, and even imposing its own safety requirements at a work site, does not constitute control for purposes of imposing liability. The evidence in the matter sub judice, viewed in the light most favorable to Appellants as verdict winner—including the relevant contractual language regarding the agreement by Telesis and Kunsman to comply with any safety direction or rules issued by the College to prevent injury; the testimony of Roth concerning placement of the scaffolding for safety purposes; Roth’s post-accident email acknowledging notice that roofers were working in a potentially unsafe manner and that the College encourages a safe work environment; and Appellants’ expert testimony offering his interpretation of the relationship between the College, Telesis, and Kunsman, which included authority over the site regarding safety matters—simply does not establish control of the work for purposes of imposing liability on the College. Therefore, because the College did not control the work of its independent contractors with respect to safety-related conduct, it is not liable for the injuries suffered by Appellants on this basis.

 Comment:  This case provides a good description of the types of actions and activities a project owner can do that affect project safety without getting itself so involved that it loses the protection afforded under the Restatement (Second) of Torts, Section 409, that establishes the general rule that a landowner who engages an independent contractor is not responsible for physical harm to another caused by the acts or omissions of the independent contractor, its subcontractors, or employees.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 13, No.8 (Aug 2011).

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