GC Not Liable Where Equipment Selected, Supplied and Controlled by Sub (NJ)

Construction work exerts competing pressures on its participants. First, there’s pressure to get the job completed as soon as reasonably possible; after all, time is money. On the other hand, quality work takes time and no owner or investor wants to accept work that is inferior or shoddy. Finally, safety is a significant concern, not solely because of a genuine concern for the safety of the workers, but also because accidents cause injuries and injuries result in claims, i.e. money.

When a work related accident blossoms into a lawsuit, a key question is who had a duty of care to the injured worker? The owner? The general contractor? The subcontractor who employed plaintiff? According to the recent New Jersey Appellate Division decision of Tarabokia v. Structure Tone, the general contractor has no duty of care to the injured employee of a subcontractor under the circumstances of that case.

In Tarabokia, the general contractor hired a major electrical subcontractor for an office building construction project. The general contract with the owner required the GC to remain responsible for overall jobsite safety. Consistent with industry practice, the GC hired an electrical subcontractor to perform the electrical work pursuant to a series of purchase orders, none of which made specific provision for an allocation of safety responsibilities.

The plaintiff was required to use a specialized powder-activated power tool that drove anchors into concrete or steel. The Sub arranged for its employee to be trained on the proper use of the tool at the job site and required plaintiff to attend weekly safety meetings. Unfortunately, the plaintiff used the tool without wearing special anti-vibration gloves, leading to a serious polyneural compression injury.

Plaintiff could not directly sue his employer because of New Jersey’s worker compensation bar so his next best target was the GC. Did the GC have a duty of care to the plaintiff to ensure his safety on the jobsite? “No,” according the Tarabokia court. First, there was no contract between the GC and Sub that imposed an obligation on the GC to assume any safety obligations for the Sub’s employees. Second, the GC was unaware of the specific danger posed by the improper use of the highly specialized tool being used by the plaintiff. Third, the GC did not create the condition that caused plaintiff’s injury. Fourth, the danger posed by the tool was not readily apparent to the GC. Last, the Sub assumed control over the manner and means of plaintiff’s work and seemingly understood its obligation to accept overall responsibility for plaintiff’s work.

The roles and responsibilities of the multiple parties working at a construction site are not always clear, particularly with respect to worker safety. Tarabokia confirms that the GC on the jobsite is not the presumptive safety supervisor of last resort, particularly for equipment selected, supplied and controlled by a subcontractor .

If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com.