August 28, 2017

No Good Deed Goes Unpunished

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When an employee is injured on the job in Indiana, that employee is generally limited in his recovery against his employer to the benefits under the Worker’s Compensation Act.  Worker’s Comp, however, does not limit that employee in claims against others. 

By way of example, if an employee is injured by falling debris at a job site, his only claim against his own employer is for Worker’s Comp, but that does not prevent his suing the person/company who actually dropped the debris if that was someone other than his own employer. 

A frequent target for such 3rd-party suits is the construction manager. Since the construction manager is usually seen to be more or less in charge of the construction site, the construction manager becomes a likely target for someone who is injured when something goes wrong on that construction site. However, there is nothing inherent in the construction manager’s position that makes it liable for workplace injury on a job. 

Construction manager liability for negligence in safety procedures at a job site must arise either from a contract provision whereby the construction manager specifically agrees to be responsible (and therefore liable) for project safety or from something that the construction manager undertook with no obligation to have done so.

Indiana case law confirms, though, that a construction manager faces liability when it undertakes a role in safety on the job site, even where it had no contractual obligation to do so. Take the case where an access way to a construction site collected ice and snow. Unless the construction manager’s contract with the owner specifically made it responsible for safety generally or for ice and snow removal specifically, the construction manager had no duty for ice and snow removal. However, if the construction manager had actually undertaken a role in ice and snow removal (even with no duty to do so), it faced liability for not having done the removal adequately.

Sticking to its contract and letting others worry about ice and snow safety would have saved this construction manager a lot of money. While law remains to be developed in this area, there is no reason to assume that a similar rationale would not be applied by the courts to other jobsite relationships – general contractor to vendor, subcontractors to each other, and so forth. Cautioning your jobsite employees against participating in doing the work of some other company on the job is good practice and may keep you from being responsible for damages if that work is (as always, by hindsight) found to have not been done properly.