CLIENT ALERT
By: John Perten
June 24, 2020
A homeowner hires a general contactor to renovate her home. One of the general contractor’s employees, a carpenter, manages to cut off his thumb on a table saw. The carpenter sues the homeowner for negligence claiming that the homeowner owed him a duty of reasonable care to ensure that the work was performed safely because she retained ultimate control over the renovation. Alternatively, he argued that, as a homeowner, she owed a duty of reasonable care to whomever came onto her property and breached that duty when she failed to remedy an obvious hazard (the use of a table saw in a crowded work space). Given that the injured plaintiff was an employee of the general contractor, shouldn’t the general rule that protects one from liability to employees of an independent contractor protect the homeowner from suit? In other words, isn’t the general contractor ultimately responsible for the safety of its employees rather than the homeowner?[1] This was the question raised in Aulson v. Stone, a recent decision by the Massachusetts Appeals Court. The Court noted that there are so many exceptions to the general rule, that it is almost no longer a “general” rule. However, in this case, it declined to extend liability to the homeowner. The Court’s reasoning is instructive and provides a roadmap of how to evaluate when a homeowner can be liable for the negligent acts that cause injury to an independent contractor’s employees.
The general rule is that one who retains an independent contractor owes no duty of care to the employees of the independent contractor. There is an exception to this general rule known as the “retained control” exception. This exception applies when the one who employs the contractor, i.e. the homeowner in this case, retains significant control over how the work is done. In so doing, she assumes greater liability than otherwise would be attributed to her. To fall within this exception, the Court will look for an exercise of control over the contractor’s work beyond just a general right to stop work, inspect the progress, and make suggestions. It is for this reason that construction contracts typically contain language making it clear that the contractor (not the owner) retains sole responsibility for means and methods of construction. Indeed, if the homeowner assumed responsibility for means and methods, she would also assume the obligation to ensure that those means and methods are implemented safely. Examining the contract at issue in this lawsuit, the Court noted that the contractor alone was responsible for furnishing materials, performing the work, obtaining permits, ensuring that all work complied with the law, ensuring that only licensed subcontractors were used, and hiring and firing of subcontractors. In contrast, the homeowner retained no control over the day-to-day operative details of the renovation or the safety protocols and procedures. Therefore, she assumed no greater duty to protect the contractor’s employees and was not responsible for the contractor’s negligence.
As to whether the homeowner breached the general duty of care she owes to any person on her property by failing to provide a safe working space, the Court sided with the homeowner. Although generally a homeowner is required to maintain her property in a reasonably safe condition to prevent injury to others, which includes a duty to warn visitors of unreasonable dangers, the Court noted the well-established rule that where the danger is obvious to persons of reasonable intelligence, there is no obligation to warn. Here, the employee knew that working with sharp power tools was dangerous, the homeowner did not direct the employee how to use the saw, nor could she foresee that he would use it improperly. Thus, the dangers were obvious and she did nothing to exacerbate them nor could she foresee that despite its obviousness, the risk of danger was greater than known. As such, she did not breach her duty of reasonable care.
So, if you are a homeowner and are tempted to strictly oversee the minute details of how your home renovation project is implemented, be careful you don’t go too far. Means and methods must remain the responsibility of the contractor. The more you insert yourself into the decision making about how the work is performed, the greater your exposure to liability may be. That does not mean you cannot inspect and make suggestions, or stop the work if it is not being done properly. It does mean, however, that the contractor must be allowed to control his subcontractors and to oversee the day-to-day construction decisions. Other than general diligence, your best protection is to check references and make sure your contractor is adequately insured. And, if you are a contractor, remember that more often than not it is your sole responsibility to ensure that your employees and subcontractors work safely. Make sure you review safety protocols with you employees and subcontractors, and enact a zero tolerance policy for those who refuse to work safely. If someone is injured on the job, you will most likely be liable, not the homeowner. Take time to ensure that your subcontractors are adequately insured and properly licensed, and that you have your own insurance in place that is tailored to the particular project. An “ounce” of protection, can protect you against a “pound” of liability.
[1] It may be that the employee collected workers compensation and, therefore, was barred from bringing a lawsuit directly against his employer.