The Kentucky Court of Appeals held, in September 2012, that a general contractor is liable for unsafe lighting on a temporary walkway until the owner of the project accepts the work.  At the request of a hospital owner, the general contractor built a pedestrian walkway from the hospital to an employee parking lot.  The walkway impeded an existing stairway to the parking lot causing the contractor to construct a temporary stairway for employee use during construction efforts.  A transition step or curb existed at the top of the stairway to the parking lot.  The hospital owned the parking lot.  The parking lot had permanent lighting fixtures.  The general contractor also placed a temporary light fixture midway on the stairway. The temporary light fixture was connected or on the same schedule as the permanent lighting. An employee accessed the stairway at approximately 6:15 p.m. in late November at a time when none of the parking lot lights or the midpoint stairway light was functioning.  The employee fell, suffering a severe shoulder injury, when she missed the transition step, claiming she could not see the transition step.

The employee filed suit in Fayette Circuit Court, Lexington, Kentucky.  The contractor argued the hospital controlled and was responsible for the parking lot lights.  The employee argued the general contractor knew employees would walk the temporary stairway in the dark and had a duty to ensure proper lighting was in place and functioning.

The general contractor built the stairway in a workmanlike manner. The fall did not occur because of any defect in the stairway’s construction.  The issue was whether the general contractor had to ensure the stairway was adequately lit, and if such duty existed, whether the general contractor could rely on the presence of the owner’s existing lighting.

The Court of Appeals rejected the assertion that the general contractor’s only duty was to construct the stairway in a workmanlike manner.  Moreover, the general contractor could not rely solely on the owner’s lighting.  The court adopted Section 384 of the Restatement of the Law of Torts, Second.  This concept provides that when someone builds or creates any structure or condition on land owned or possessed by another, the builder is subject to the same liability (or the same freedom from liability) as the possessor of the land for any physical harm caused to others on the land by any dangerous character of the structure or other condition while the work is in his charge.  The Court of Appeals held that because the hospital had not accepted the stairway, the contractor had the same liability (or the same freedom from liability) as the hospital owner, imposed the same duty on the general contractor to prevent the harm as it did on the property owner, imposing on the general contractor the duty of providing adequate lighting while the project was in its control.

The case was remanded for determination by a jury of whether the contractor’s reliance on the owner’s lighting was a breach of the contractor’s duty to provide adequate lighting.

The dissent in this opinion noted that the holding “broadly expands a contractor’s potential liability and imposes a duty not contemplated by the parties’ contract.”  The contractor built the stairs in a workmanlike manner, did not control the parking lot lights, and no evidence existed that the contractor knew the lights were not functioning on the evening of the injury.  There was also no contractual obligation between the general contractor and the owner for the contractor to control the operation of the parking lot lights.  It was not the general contractor that created the injurious condition on the hospital premises.  But based on the court’s majority opinion, contractors may be required to provide their own lighting, a costly and time-consuming addition to the cost of the project.  The dissent is also concerned that even owner’s liability may be expanded if, after a hail storm or other natural disaster, a power loss occurs and the owner does not immediately restore back-up lighting.

The opinion, Martin v. St. Joseph Hospital System, Inc., 2012 W.L.4036997 (Ky. App. 2012) is unpublished.  But under Kentucky Rules of Civil Procedure, the opinion may be relied upon if no other existing published opinion deals with the same issue and a copy of the unpublished opinion is presented to the court and counsel of record.  In Martin v. St. Joseph Health System, Inc., the Court of Appeals identifies the issue as one of “first impression” acknowledging that no published opinions exist regarding the subject matter.   Thus this case is likely to form a basis for adding contractors to plaintiff’s injury claims on construction sites if a certificate of occupancy has not yet been issued on a project demonstrating the owner’s acceptance of the work.  Contractors must beware.