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Fallout for Injuries Sustained by Contractor’s Employee

When construction is taking place on a piece of real estate, and an employee of the contractor doing the work is injured there, who bears the potential tort liability for the injury, the property owner, the general contractor, or both?  Luckily Pennsylvania law provides a way to discern how liability should be distributed if there is no existing contract between the contractor and property owner which addresses the liability question.

The basic legal principle is foundational, well established, and has manifold case support in Pennsylvania.  The standard of care present in such a case mirrors the standard of care a property owner has to an individual on the property owner’s land.  The standard of care a property owner has depends upon whether the individual on the property owner’s land is a trespasser, licensee, or invitee.  Under Pennsylvania law, the employee of a general contractor who is authorized to be on the property falls within the classification of business invitee, and therefore, the duty of care owed to a business invitee is the highest duty owed to any entrant upon the property.

Pennsylvania “case law sets forth the duty that a possessor of law owes to business invitees as follows:  A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, and only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”  Chenot v. A.P. Green Services, Inc., et al., 2006 Pa.Super. 52, 63 (2006)  Therefore, a property owner is potentially liable for the injuries sustained by a contractor’s employee while on the property.

In addition, there is no doubt that a duty of care attaches to a contractor for the injuries sustained by its employees.  Suffice it to say, a contractor has a duty, for which it can be held liable if breached, for injuries sustained by its employees while they are engaged in working for the contractor at the property.  However, the duty of care applied to a contractor does not lessen or relieve the property owner of his/her/its duty of care over business invitees/visitors.  Despite a contractor’s duty of care, a property owner “must [still] protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care.” The court in  Gutteridge v. A.P. Green Services Inc., A.W. et al., 804 A.2d 643, 657 (Pa. Super. 2002) stated that a property owner ‘“owes a duty to warn an unknowing contractor of existing dangerous conditions on the landowner’s premises where such conditions are known or discoverable to the owner.”’  Finally, it should also be noted that the property owner’s duty to warn remains regardless of whether a contractor ‘“exercises full control over the work and premises entrusted to him.’”  (See Gutteridge).

Based upon the above, it is abundantly clear that a property owner can be held liable for the injuries sustained by a contractor’s employee working at his property if he breaches the duty of care described above and does not fulfill his duty to warn.  Consequently, the highest standard of care that a property owner ought to maintain applies to an employee of a contractor at the property who is authorized to be working there.  Such an employee is a business invitee of the property owner.  Therefore, to that end, a property owner has a duty to protect such an employee from known dangers at the property and those which could be discovered with reasonable care.  The liability of the property owner is supplemental to, and/or in addition to, any liability the contractor may also have for his employee’s injuries.

Originally published in The Legal Intelligencer on January 28, 2016 and can be found here.

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