When a subcontractor employee was injured by being struck by pieces of concrete that unexpectedly shot out of a concrete pumping hose, he sued the project construction manager (CM) who had subcontracted the concrete work. Tutor Perini was serving as CM at risk and therefore subcontracted out construction work, including the concrete. Summary judgment was granted for the CM on the basis that it was immune from suit pursuant to the Pennsylvania Workers’ Compensation act because it met the five-part test used for determining that it was a “statutory employer” of the injured individual.   Alexander v. Tutor Perini Corporation, et al., 2017 WL 4159338 (U.S. District Court, E.D. Pa., 2017).

The CM developed an environmental health and safety plan detailing the rules and procedures that subcontractors and their employees were expected to comply. They kept an office and trailer on the project premises to monitor the project and enforce safety procedures. CM employees maintained a constant presence on the site.

The accident occurred when a group of subcontractor employees attempted to dislodge a concrete jam inside the pumping pipes. The employees began disassembling pipes and found “frozen” or “hard” concrete in several locations.   While chipping concrete out of the top of a pipe, an employee was hit from behind and injured by concrete that blasted free from another section of pipe.

The five-part test that the court applied to find immunity for the CM who had employed the subcontractor was the following:

1) the general contractor must be under contract with an owner or one in the position of an owner;

2) the general contractor must occupy or control the premises of such owner;

3) the general contractor must enter into a subcontract;

4) the general contractor must entrust part of its regular business to such subcontractor; and

5) the injured party must be an employee of such subcontractor.”

The court stated, “A general contractor who meets the McDonald test is ‘entitled to its historic immunity as a ‘statutory employer’ from suit for common law negligence,’ even if the general contractor is not the common-law employer of the injured party.”

In attempting to avoid summary judgment based on statutory employer immunity, the injured employee argued that the concrete work that was entrusted to its employer (the subcontractor) was not part of the CM’s “regular business” under the McDonald test. In rejecting that assertion, the court quoted from other decisions that state, “the regular business requirement is satisfied ‘wherever the subcontracted work was an obligation assumed by a principle contractor under his contract with the owner.’ ”   Moreover, the court found that element four of the McDonald Test does not require that the CM/general contractor be capable of carrying out that specific task itself, but only that the type of work be in the regular business of the CM.

Being satisfied that all five of the McDonald factors necessary to establish the CM’s status as a statutory employer, the court granted Tutor Perini’s motion for summary judgment.


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. 20, No. 1 (Jan 2018). Copyright 2018, ConstructionRisk, LLC