RTFC. Read The Fabulous Contract. Regular readers of BrickerConstructionLaw.com know that most liability on a construction project is governed by the terms of the contract, but there are times when the contract is not enough. This is especially true in the case of injuries to pedestrians and other passers-by to a construction jobsite.

It is common for construction contracts to contain provisions regarding safety and the general upkeep of a construction jobsite. For example, this is addressed Section of the AIA A201-2007 General Conditions of the Contract for Construction, which states that:

The Contractor shall take all reasonable precautions for safety and health of, and shall provide reasonable protection to prevent damage, injury or loss to employees on the Work and other persons who may be affected thereby.

This means that the contractor is responsible for erecting typical safety barricades such as fencing, walkways and walkway covers, signage and the like. Most design specifications also will include sections further describing the requirements for temporary structures including chain linked fences, temporary signs and other temporary partitions separating the general public from the construction site.

All of these requirements however, describe the contractor’s liability to the owner. So, for example, if a contractor fails to erect temporary fencing, it can be in breach of its contract with the owner. What about the contractor’s liability to a pedestrian passing by a jobsite who may be injured as a result of construction activities? The answer to this question lies beyond the terms of the contract.

Since a contractor does not have a contract with every passer-by of a construction site, we look not to the terms of the contract but rather to the law of negligence. Negligence, simply defined, is the failure to exercise a standard degree of care.

Courts have established a three part test for negligence wherein an injured party must show: (1) they were owed a duty by the negligent party; (2) the negligent party breached their duty; and (3) there was an injury resulting from the negligence. See Federal Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171. In order to determine whether a contractor owes a duty to passers-by, courts will look to see if the injury was foreseeable and whether a reasonably prudent contractor would have anticipated the injury as a likely result of their activities.

Courts have found that such a duty exists between contractors and pedestrians passing by a jobsite. In Alexander v. O’Horo Company, Mahoning App. No. 81CA74, a court of appeals upheld jury verdict awarding damages to a student who was injured when passing by a construction project on the campus of Youngstown State University. There, the student was leaving class (a law class!) when he stepped on construction debris near a jobsite that was covered by snow. The court noted that there were no warning signs, lights or other barricades in the area. Based on the contractor’s breach of their duty, the jury awarded the student, and attorney-to-be, $56,000 in damages.

Despite the outcome in the Alexander case, the contract cannot be completely disregarded when evaluating negligence cases. In Blasius v. Cuyahoga County, Cuyahoga App. No. 70214, a woman suffered injuries when she tripped and fell on a walkway leading to the Justice Center in Cleveland. The woman subsequently brought suit against the county as well as the contractor who was working on the Justice Center at the time.

Here the contract played a key role in exculpating the contractor. In particular, the contract called for the project to be performed in distinct phases that were in separate areas of the building. Although the contractor was in fact working on the Justice Center, it was working on a phase in a completely separate part of the building far from where the woman suffered her injuries. Based on these facts and the language of the contract, the court found that the contractor owed no duty to the pedestrian.

One lesson learned is to always take measures that will safeguard against injury to passers-by to the jobsite, including adding contractual language that may protect the contractor or owner from any liability. The second and more important lesson is to always Read The Fabulous Contract.