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An employee of a general contractor was electrocuted while working alongside employees of a subcontractor to move sections of pipe culvert in a streambed. This apparently occurred because a crane being operated by the subcontractor contacted an electrical wire. His family recovered workers compensation from his employer and then sought to recover damages from the subcontractor. It was held that no recovery could be had against the subcontractor via separate legal action because it was immune from liability because it was a “common enterprise” with the workers employer and therefore protected by the workers compensation statute.

The workers were working together in a common activity. Although the two crews of workers had distinct functions, those functions were interdependent and required close, contemporaneous coordination. The crew that the deceased was part of could not have moved the culvert section without the other crew positioning, attaching, and maneuvering them. The one crew could not have placed the culvert sections without the other crew directing and operating the crane. The court also found that the workers were working in such fashion that they were subject to the same or similar hazards. For these reasons, the court held that summary judgment was properly granted. Kelly for Washington v. Kraemer Construction, Inc., 896 N.W. 2d 504 (Minnesota 2017).

The court explained that, “Cases analyzing the common-activity requirement have focused on the types of work performed, the interdependence of the work, and whether the work was closely coordinated. That the workers share a common goal is a necessary, but not sufficient, condition for finding a common activity.” Applying these principles here, the court stated that it concluded,

“The crews were working together in a common activity. “Neither crew could have accomplished the day’s goal of setting the culvert sections without the contemporaneous assistance of the other crew; their work was “interdependent.” Kraemer relied on Ulland to push the culvert sections into the rigging area, attach them to the crane, and guide them into position. Ulland relied upon Kraemer to lift, swing, and lower the 22,000-pound sections, which Ulland did not have the proper equipment to lift. The procedure was complicated enough that working together was “essential to avoid chaos at the site.” Further, Kelly’s argument that the crews’ duties were “distinct” is not dispositive.”

“We hold that Kraemer met its burden of showing that no genuine issue of material fact exists concerning the second requirement, working together in a common activity. Though the two crews had distinct functions, as the district court found, those functions were interdependent and required close, contemporaneous coordination. The Kraemer crew was working together in a common activity with the Ulland crew as a matter of law because the Kraemer crew could not have moved the culvert sections without the Ulland crew positioning, attaching, and maneuvering them, and the Ulland crew could not have placed the culvert sections without the Kraemer crew directing and operating the crane.”

Next, the court considered whether the Ulland and Kraemer employees were working “[i]n such fashion that they are subject to the same or similar hazards.”

The court stated,

“But the record is clear that several other shared risks existed as the crews worked to install the culverts. Poukka spent the day going back and forth from the rigging area in the road to the streambed, and he worked side-by-side with three of the Ulland employees. All of these employees, by virtue of working near the crane load, were subject to the risk of being hit by the load, struck by a piece of the culvert section if it broke apart, or injured by a failure of the crane cable or boom. As Poukka and Wright walked up and down the stream bank between riggings, they were at risk of slipping in the muddy conditions of the dewatered streambed. And all employees in the streambed could have been hurt by the bulldozer as it traveled back and forth from the rigging area. These risks are not so speculative that they should be ignored, and they establish that the two crews were subject to similar hazards.”

 

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. 19, No. 10 (Nov 2017).

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