GC’s Duty of Care to Injured Employee of Subcontractor Strictly Limited, Even in the Presence of an OSHA Violation

Tarabokia v. Structure Tone, N.J. Super. Ct., Appellate Div. (Nov. 16, 2012)

The defendant was the general contractor for an office building construction site.  A standard AIA Owner-GC Agreement was used. The plaintiff was an employee of the electrical sub-contractor.  He was directed, supervised and controlled solely by his employer, the sub-contractor.

Plaintiff suffered permanent repetitive motion injuries as a result of improperly using a power-actuated anchoring tool supplied by the sub-contractor.  Though OSHA required protective anti-vibration gloves, none were supplied to the plaintiff.  Plaintiff was trained and certified in the use of this equipment.

Plaintiff employee sued defendant GC in negligence.  In Tarabokia v. Structure Tone (Nov. 16, 2012) the N.J. Appellate Division denied plaintiff’s claim, holding that as a matter of law, to be decided by the Judge and not a jury, that the GC had no duty of care toward the plaintiff under these circumstances.

1. Although the GC is responsible for OSHA compliance on the job site, the violation of an OSHA safety regulation does not in and of itself, without more evidence, justify a finding of negligence.
2. At common law, a GC was not liable for the negligence of its sub-contractors except a) when the GC controls “the manner and means” of how the sub does its work; b) when the subcontractor is incompetent; and c) when the work to be done is inherently dangerous.  None of these factors was present.
3. Even if there is no common law liability, the GC is not yet off the hook.   The court must now identify, weigh and balance relevant factors, including a) whether the general contractor knew or should have known of the specific risk involved, b) whether the harm was foreseeable, c) the GC’s “opportunity and capacity to take corrective action” and c) public policy considerations (“an abiding sense of basic fairness” in light of all the circumstances.)

The general contractor escaped liability in this case because it fulfilled its contractual safety procedures obligations, it did not have a close business relationship with the sub-contractor, it specifically allocated the various safety duties and responsibilities in work orders, it had no control of the selection of this equipment and the specific procedures used by the sub-contractor, it had not created or attempted to fix the problem, and the danger was not immediately apparent.  No “active involvement in the subcontractor’s business” is required.

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