Nebraska High Court Orders Trial Against General Contractor Over Death Of Subcontractor’s Employee

To help build a new store for a nationwide retailer in Omaha, the site’s general contractor hired a subcontractor to install steelwork to support the building’s roof.  One of the subcontractor’s employees, while not wearing required personal protective equipment (PPE), fell 25 feet after a decking sheet gave way and was killed.  The decking sheet originally had been secured by two temporary screws but the screws had been removed before the incident.  The worker’s estate brought a negligence suit against the general contractor and the site owner (the retailer).  The trial court granted summary judgment to both defendants.

On appeal, the Supreme Court of Nebraska affirmed the grant of summary judgment to the site owner but reversed summary judgment in favor of the general contractor, and remanded the case against the general contractor for trial.  In Nebraska, there are four exceptions to the general rule that an employer of an independent contractor cannot be liable for physical harm caused to another by the acts or omissions of the contractor or its servants:  1) if the employer retains control over the contractor’s work; 2) if the employer is in possession and control of the premises; 3) if a statute or rule exists imposing a specific duty on the employer; or 4) if the contractor’s work involves special risks or dangers.  Even if the general contractor has retained control, liability can only be imposed where the general contractor supervised the work that caused the injury to the employee, had actual or constructive knowledge of the danger that ultimately caused the injury, and had the opportunity to prevent the injury.

The appellate court found that a jury could find that the general contractor did in fact retain control of the subcontractor’s work in this case.  Following the accident, OSHA penalized the general contractor for failing to properly designate certain safe zones on the roof even though the general contractor had no employees of its own on the roof after finding the general contractor was “the controlling employer for the site, and ha[d] explicit control over the overall safety and health of the site.”  The general contractor had supervisory personnel on the site, and held a meeting with the subcontractor following the incident about roof safety and warned one of the subcontractor’s foreman that its workers were seen not wearing PPE.  Before the incident, the general contractor had monitored whether the subcontractor’s employees were wearing PPE and developed a fall protection plan for the subcontractor.  The court found that a material fact was in dispute with respect to whether the general contractor had reason to know that the subcontractor’s employees were not using PPE as required given that three sets of unused PPE were found on the roof, which suggested that the failure to use PPE was so widespread that the general contractor should have known it.

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