Construction sites are, well, construction sites. Even with good efforts to keep them tidy and organized, construction sites are likely to have some debris and materials in places other than the designated areas. But what happens when non-workers are injured at the construction site may be dependent on how much “control” the owner of the site has over its maintenance. In a recent Connecticut case, a security guard hired for after-hours patrol of a mall construction site was injured after he slipped under some plastic and scaffolding during his patrol. His injuries resulted in a fractured wrist requiring two surgeries and $54,000 in medical bills. The guard sued the mall owners claiming that the owners were negligent for several reasons: failing to keep the area where he was patrolling in safe condition, failing to inspect the area and failing to warn others of the hazardous conditions or correct the conditions.  

At trial, a jury awarded the security guard more than $403,000 for his personal injury claim. The jury found that the security guard was somewhat responsible for his own injuries, but that overwhelming responsibility fell on the mall owners. The mall owners appealed this award, arguing that the guard had not offered enough evidence at trial to show that the owners actually were in control of the area where he had fallen or that the owners had actual knowledge of involvement with the site conditions related to the fall—arguing these were necessary legal parts of the personal injury claim the guard was asserting against the owners. The reviewing court considered the jury verdict and the legal evidence requirements and agreed with the owners. The court of appeals directed that the verdict should be in favor of the owners, not the guard.  

Although courts do not freely set aside jury verdicts, the reviewing court found that the evidence in this case was too weak to show who had “control” of the premises: the guard had not proved that any particular individuals or that the company was responsible for the work being performed, and he had not proven who erected the plastic and scaffolding or who was in charge of the oversight and management of the site and specific area. The reviewing court found that the only evidence the security guard presented was that the owners had title to the property on which the construction was taking place. However, holding legal title to the property was not sufficient proof of control of the premises and could not alone sustain liability for negligence. Because of the guard’s failure to present necessary evidence, the reviewing court determined that the jury award was improper.

Safety is of paramount importance on a construction site and, from a legal point of view, so is the ability to prove whose responsibility it is to ensure site safety. When asserting legal claims, particularly negligence claims that rely on there being a particular duty owed to others, a party must be sure to prove each element of the claim. Similarly, defending parties, such as the mall owners in this case, must be sure the burden of proving the claims is met with the necessary evidence.

Millette v. Connecticut Post Ltd. Partnership, 143 Conn. App. 62 (2013).