General Contractor Found Not Liable for Injuries to Subcontractor’s Employee

Tarabokia v. Structure Tone, 429 N.J. Super. 103 (App. Div. 2012). “The issue is whether, under the circumstances presented, the general or prime contractor has a duty to ensure the safety of an employee of a subcontractor.” The Law Division granted summary judgment for the general contractor. With Judge Parrillo writing the Appellate Division’s opinion, that court affirmed.

Judge Parrillo observed that, at common law, the general contractor had broad immunity for injuries to subcontractors’ employees. That immunity was subject to certain limited exceptions, such as where the general contractor “retains control of the manner and means of doing the work contracted for,” where the general contractor “knowingly engages an incompetent subcontractor,” or where the work itself is inherently dangerous. None of those circumtances were present here. But under the more modern approach to these issues, that did not end the inquiry. Rather, as Judge Parrillo stated, factors such as the foreseeability of the injury, the relationship of the parties, the nature of the attendant risk, the opportunity of the respective parties to exercise care, and the public interest in the proposed solution, are all to be considered. Judge Parrillo discussed in detail Alloway v. Bradlees, Inc., 157 N.J. 221 (1999), and Carvalho v. Toll Brothers, 143 N.J. 565 (1996), the key cases in this area that had applied this multi-factored test.

Unlike in Alloway, the general contractor here had no formal contractual relationship with the subcontractor and had not helped to create the dangerous condition that led to plaintiff’s injury. The key governing document placed on the subcontractor the duty to ensure the safety of its own workers. Nor did the general contractor have any basis to foresee the injury or its severity.

Plaintiff argued that the general contractor was liable for his injury because the general contractor had violated requirements of the federal Occupational Safety and Health Act (“OSHA”) that purportedly required the general contractor to provide proper equipment and ensure proper use of tools. Judge Parrillo rejected that contention. Though OSHA violations (if any occurred, a decision that the panel did not reach) “are to be considered with other fairness factors in determining the existence of a duty and the duty’s scope,” non-compliance with OSHA “does not alone create a viable cause of action, nor does it necessarily place a tort duty of care on the general contractor.”