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Subcontractor’s employee was injured by falling into an expansion joint in a concrete floor that the prime contractor failed to adequately cover with plywood. This employee sued the prime contractor for his injuries. An indemnification clause in the subcontract required the Sub to indemnify the Prime for all injuries to employees of the Sub. In this case, however, because the Prime controlled the site, was responsible for the safety problem, and affirmatively created the hazard, the court held the indemnification clause could not be enforced. Strousse v. Webcor Construction, 34 Cal. App. 5th 703 (2019).

The prime’s contract was with the University of California. Under that contract, the prime was “solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with performance of the contract.” The contract also required the prime to “designate a responsible member of its organization at the Project site whose duty shall be the prevention of accidents.” In addition, the prime was obligated by contract to “continuously require and follow up with Subcontractors about their job site maintenance and their conformance in providing a safe work place” and to “enforce all safety-related requirements in the Contract Documents,” and to “review, monitor and coordinate the implementation of individual Subcontractor’s Safety Programs.”

The subcontractor’s employee suffered injury when his leg fell into a 12-inch deep expansion joint after the plywood safety cover that was designed, constructed and installed by the prime contractor gave way. Evidence demonstrated that the prime was the sole entity that maintained the safety covers, and its carpenters were the only ones allowed to repair them.  Prior to the accident, the evidence showed that the prime knew that safety covers had been damaged or had become unsecured due to various subcontractors removing them without securing them back into place.

There was also testimony from the subcontractor’s general foreman that he had advised the prime contractor about the condition of the safety covers during weekly foreman meetings, and that he was not satisfied with the responses or actions taken the prime.

After reviewing numerous significant court decisions (including Privette v. Superior Court) that established the general principle that site safety responsibilities can be delegated to a subcontractor, the appellate court found this didn’t protect the prime contractor in this case. That is because the prime affirmatively acted to prohibit subs from maintaining or repairing the safety covers, and the prime retained control over safety in the general access areas and reasonably induced the subcontractors and their employees to rely on the presumed adequacy of the safety covers. When the matter went before a jury, the jury apportioned 100 percent of fault to the prime contractor –meaning the prime was found directly and entirely at cause, and not merely vicariously liable or derivatively liable from an act or omission of a hired subcontractor.

 

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 ConstructionRisk 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. 21, No. 7 (Aug 2019).

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