Contractor owed no duty to sub’s employee,

Guy Loranger

A general contractor owed no duty to a subcontractor’s employee based on whether it complied with federal safety regulations at a Buncombe County construction site, the Court of Appeals has ruled.

The unanimous decision affirmed a trial court’s grant of summary judgment in favor of the general contractor, who had been sued by the plaintiff after an accident at the site in March 2006.

According to the opinion, the plaintiff had been working on an unguarded platform when he fell and landed on a concrete floor roughly 10 feet below and sustained a traumatic brain injury.

He sued the general contractor on the project, contending his injuries were caused, in part, by Occupational Safety and Health Administration (OSHA) violations for which the general contractor was responsible.

Distinguishing the case’s facts from others in which it was found that a general contractor did owe a duty to a subcontractor’s employee, the Court of Appeals held that the plaintiff would not be allowed to recover damages as a matter of law.

In one of those distinguished cases, N.C. Commissioner of Labor v. Weekly Homes, L.P., 169 N.C. App. 17 (2005), the appellate court had held that an administrative agency could issue a citation to a general contractor for OSHA violations that its subcontractor might have created and which could have been readily detected.

According to Asheville attorney Robert E. Allen, who represents the general contractor, Weekley Homes has often been cited by plaintiff’s attorneys in construction litigation to contend that a general contractor should be liable for OSHA violations.

The Court of Appeals said that Weekley Homes had not been recognized “for the proposition that a general contractor’s violation of OSHA regulations necessarily gives rise to tort liability.”

“The court is saying that there are certain specific circumstances where a general contractor does owe a duty to the employees of a subcontractor, but unless the plaintiff has shown that those circumstances exist, there is no duty, and OSHA becomes irrelevant,” Allen told North Carolina Lawyers Weekly.

“It stands for the proposition that North Carolina has yet to extend the multi-employer work-site doctrine referenced in Weekley Homes to civil tort liability.”

George W. Moore of Asheville, the plaintiff’s attorney, said he was reviewing the decision to decide whether to file a petition for discretionary review.

Chief Judge John C. Martin wrote the opinion in the case, Pike v. Fiore Construction Services, Inc. (North Carolina Lawyers Weekly No. 09-07-1096, 11 pages). Judges Barbara A. Jackson and Samuel J. Ervin IV concurred.

Distinguished

Under state law, a general contractor is not usually held liable for injuries sustained by a subcontractor’s employees or found to owe a duty to furnish them with a safe work place, according to the opinion.

However, the opinion points to exceptions to this general rule: (1) where the general contractor retains control over the manner and method of the subcontractor’s work, (2) where the work is deemed to be inherently dangerous, and (3) where the situation involves negligent hiring and/or retention of the subcontractor by the general contractor.

According to the opinion, the plaintiff in this case did not claim the general contractor’s liability arose from one of those exceptions or that it breached a duty of care owed to the plaintiff as a lawful visitor, but instead argued that the general contractor owed a duty to the plaintiff to comply with all applicable safety requirements and regulations.

The Court of Appeals rejected that argument.

In addition to distinguishing Weekley Homes, the Court of Appeals based its decision on Cowan v. Laughridge Construction Co., 57 N.C. App. 321 (1982).

In Cowan, a roofing subcontractor’s employee was injured after falling off a ramp that had been furnished by the general contractor and which provided the only access to the building’s roof.

According to the appeals panel, the general contractor was held to owe a duty in that case because the ramp was the only way to access the roof, and it should have been reasonably foreseeable that the employee would use the ramp.

Here, in contrast, the evidence did not show the general contractor built the platform for the purpose of giving the plaintiff access to the roof. Instead, it was located in the center of the building, and it had been built by the subcontractor’s employees, the appeals panel said.

And even though the plaintiff claimed that he was required to perform his job duties on the platform, he provided no evidence to support this allegation, according to the opinion.

The Court of Appeals also distinguished Sloan v. Miller Building Corp., 119 N.C. App. 162 (1995).

Although Sloan involved allegations of OSHA violations, it was “not instructive” here because it had dealt with the unrelated issue of whether evidence of a general contractor’s willful or wanton negligence was sufficient to overcome the bar of contributory negligence, the appeals panel stated.

OPINION BRIEF

Case name: Pike v. Fiore Construction Services, Inc.

Number of Ada County homebuilders falls 79 percent

Dani Grigg

Since 2005, the active Ada County homebuilding industry has shrunk to a fraction of its former size.

In 2005, 770 builders pulled permits to build new homes in Ada County. In 2009, just 160 have done the same – a 79-percent drop.

And only 60 of those builders this year have built more than one home.

These numbers come from Construction Monitor.

BuildIdaho.com founder Trey Langford said just building a home or two in a year is not enough to make a company workable.

“I say you have to build at least four homes this year to be considered a viable company, and only 37 made that number,” he said.

The ones that are surviving are the ones with strong marketing strategies, Langford said.

“I think the market has bottomed out,” he said. “I think the people who are left are business-savvy, they have business plans, they understand what the customers want and they’re marketing themselves to meet those people.”

Final beam set at Portneuf Medical Center on Dec. 16

The last steel beam was set in place at the Portneuf Medical Center in Pocatello.

Last September, the first steel beam was placed at the new Portneuf Medical Center job site, fast forward 15 months and now the last beam, complete with the signatures from all Portneuf employees and construction workers, was carefully lowered into place.

Director of Public Affairs Brad Huerta told KPVI, ” It’s a visible sign to the community that this hospital is well on it’s way to being completed.”

The $150 million expansion could be the largest construction project in Bannock County’s history and will be Idaho’s most modern health care complex. When completed in 2011, the project will feature nearly 190 beds in all private rooms with 297,500 additional square feet. The hospital is on schedule and on budget for a July 2011 completion date.

Mayor Steve England, Chubbuck, said, “What this will eventually provide to the community and the foresight that has gone into getting us this far, I think this is just a benchmark in this coming to fruition.”

When completed, the nearly 400,000 square foot hospital will provide state of the art features, as well create a much more relaxed atmosphere for patients, including 187 private rooms.

LHP Hospital Group CEO Dan Mowen said,: “In almost every area, we’ve expanded.  The ER is larger, the or is much larger.”

“A lot of patients still leave north to Idaho Falls or south to Salt Lake City. Our goal is to make this a state of the art regional medical center,” he said.