General contractors should take note of a recent New Jersey appellate court decision that provides guidance on avoiding liability for injuries to a subcontractor’s employee. In Tarabokia v. Structure Tone Case No. A-3822-11T2 (NJ Superior Ct. App. Div., Nov. 16, 2012), the Superior Court of New Jersey Appellate Division provided project owners, construction managers and general contractors with a valuable reminder that careful pre-project planning and drafting plays an essential role in risk management and cost control.
In Tarabokia, the plaintiff brought suit alleging nerve damage in his wrist caused by repetitive use of a power tool. The tool was provided to him by his employer, an electrical subcontractor. Prior to starting work at the site, the plaintiff was provided with a copy of his employer’s safety manual and given training by his employer regarding the use and operation of the tool. Although he was provided with a special pole extension to allow the work to progress at a faster rate, he was not instructed in its proper use. Moreover, he was not provided with shock-dampening gloves. Ultimately, the improper use of the tool and the pole extension and the lack of safety gloves led to plaintiff’s injury.
Plaintiff’s employer was hired by the project’s general contractor. Pursuant to its contract with the project owner, the general contractor drafted a comprehensive site safety management plan and designated an employee to act as site safety manager. Although the site safety plan vested the general contractor with general, supervisory control over the safety of all personnel at the project, it also expressly provided that the subcontractors were responsible for the performance of and scope of their own work. Moreover, all subcontractors were required to create their own safety plans, conduct weekly site inspections and conduct safety “tool box talk” meetings for their employees.
Before trial, the general contractor’s attorney filed a motion for summary judgment, arguing that under the circumstances presented the general contractor did not have a duty to assure the safety of a subcontractor’s employee. After the trial court granted the general contractor’s motion, the plaintiff appealed, arguing that the court identified several factors that should be used in determining the extent of a general contractor’s duty of care toward a subcontractor’s employee. Among these factors are the nature of the parties’ relationship, the general contractor’s ability to exercise control over the employee’s work and the attendant risk of the work. Additionally, the court considered the so-called “foreseeability” factor, measured against the general contractor’s knowledge of the dangerous condition.
On appeal, the issue was whether the general contractor has a duty to ensure the safety of a subcontractor’s employee and whether the scope of that duty encompasses the manner and means of using the equipment provided by the subcontractor.
In affirming the trial court’s dismissal, the Appellate Division first noted that that general contractor had no special or direct contractual relationship with the subcontractor. Rather, the parties’ relationship was governed by a series of work orders that did not address worker safety issues; however, the general contractor’s site safety plan did. Pursuant to that plan, the subcontractor – not the general contractor – was responsible for the supervision of its employees on a daily basis and was charged with drafting its own safety plan, appointing safety personnel, and holding employee safety meetings. Having so noted, the court found that the general contractor did not have a contractual duty to supervise the manner and means of using equipment supplied to that employee by the subcontractor.
In regard to the “foreseeability” factor, the court noted the lack of proof offered to show that the general contractor knew or should have known that the manner in which the plaintiff’s work was being performed was likely to cause a repetitive motion–type injury. The court found that the general contractor did not have actual knowledge of the potential harm, as the harm arose out of discrete and insular tasks of which the general contractor had no knowledge.
Moreover, the court found insufficient evidence to impugn the general contractor with constructive knowledge of the harm, given the parties’ relationship. Pursuant to the site safety plan, the general contractor exerted no control over the means and details of the subcontractor’s work, which required discrete occupational skills beyond the scope of the general contractor’s regular business. Under these circumstances, the court found that the general contractor properly expected that the on-site subcontractors would use their occupational expertise and knowledge to monitor and ensure their own employees’ safety.
Overall, Tarabokia should provide some comfort to general contractors on New Jersey projects seeking to insulate themselves from personal injury claims brought by subcontractors’ employees. Although the court’s decision was based heavily on the particular facts of the case, it nevertheless provides a framework to approach and plan for these issues early on in the project’s history. By drafting carefully worded and comprehensive site safety plans, general contractors can focus their time on overall site management and provide that subcontractors, who may be in the best position to monitor their employees’ actions, take the necessary steps to limit workplace risk.