“A general contractor in control of the premises may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect [citation omitted]. Levine argues on appeal that neither of those types of negligence applies in this case because USI relinquished control of the scaffold before Levine was injured, leaving Levine with a general-negligence claim. The court of appeals considered USI’s control over the premises to be the central inquiry in determining the character of Levine’s claim. [citation omitted]. Concluding that Valero controlled the scaffold on the day of Levine’s accident, the court of appeals held that Levine’s claim was properly submitted under a general-negligence theory of recovery. In reviewing the alleged charge error, we must consider the nature and circumstances of Levine’s injury, Levine’s allegations against USI, and the evidence presented at trial.[A] person injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the property’s condition rather than an activity, premises-liability principles apply. Negligence and premises liability claims thus are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.[citation omitted]. Because negligence and premises liability claims are based on independent theories of recovery, we have held that they are not interchangeable….Negligent-activity and premises liability claims “involve closely related but distinct duty analyses.” [citation omitted]. In a negligent-activity case, a property owner or occupier must “do what a person of ordinary prudence in the same or similar circumstances would have … done,” whereas a property owner or occupier in a premises liability case must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.”
“(1) that [the defendant] had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) that [the defendant’s] failure to use such care proximately caused [the plaintiff’s] personal injuries.”
“Levine has never alleged that any sort of contemporaneous, ongoing activity caused his injury. Rather, in his trial court petition, Levine alleged that USI created a dangerous condition by “improperly assembling, erecting, and/or securing the scaffolding.” Levine further alleged, among other things, that USI failed to “adequately determine dangerous conditions created,” “correct the dangerous condition which existed with the scaffolding,” “secure the scaffolding in a proper and safe work condition,” and warn “that a dangerous condition existed which required extra care to be taken” by Levine while working on the scaffold. In essence, Levine claims that his injury resulted from a physical condition USI created and then left on the premises. We have repeatedly characterized such slip-and-fall claims as premises defect cases because the injuries were alleged to have resulted from physical conditions on property.”
“We begin with the question of whether any duty of care USI owed Levine as to the scaffold condition is derived from our premises defect body of law, as USI contends. Levine argues on appeal that no premises liability claim exists because USI, a contractor, did not own, physically possess, or control the premises and therefore owed Levine no duty under a premises liability theory; rather, USI was hired to assemble the scaffold and did so negligently, making this purely a negligence case. Whether a duty exists is a question of law for the court, and the presence of an unreasonably dangerous condition weighs in favor of recognizing a duty.”***“An owner or occupier generally does not have a duty to ensure that a general contractor performs work in a safe manner.[citation omitted. Essentially, a general contractor that assumes control of or retains the right to control the premises “is charged with the same duty as an owner or occupier.”[citation omitted]. Thus, the duty to make the premises safe or warn of dangerous conditions “generally runs with the ownership or control of the property,” and a defendant’s liability under a premises liability theory rests on the defendant’s assumption of control of the premises and responsibility for dangerous conditions on it.”
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. 2 (Feb 2018).
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