Representing the injured construction worker is a difficult and often frustrating practice. Workman's compensation does not come close to paying these men the wages they were earning prior to injury. Furthermore, the injuries received by construction workers are often catastrophic and permanently disabling. Even workers who are less severely injured may never be able to return to work at hard physical labor. To obtain reasonable compensation for these workers requires an innovative exploration of third-party direct and vicarious liability. Unfortunately, the courts of this state have been reluctant to reanalyze and to disavow the Nineteenth Century privileges and immunities from liability bestowed upon independent contractors for injuries to their subcontractor's employees. However, there are some chinks in the prime contractor's armor of undeserved immunity. The privilege to kill and maim innocent workers and wreak mourning and financial ruin on their families in the name of profit and commercial enterprise is on the defensive. While the exclusivity of workman's compensation continues to shield the negligent and often reckless employer, there are other possible avenues of compensation.

Do not presume that workman's compensation is the only remedy for the injured construction worker and his family.  Before rejecting the worker's case look for possible third-party claims in the areas of product liability; occupier liability; claims against other subcontractors or their employees; claims against architects for negligent specifications or improper materials selection; claims against engineering or inspection firms; claims against utilities or governmental entities for electrical, water, road and other hazards; claims against the lessors of defective or improperly maintained equipment; claims for medical malpractice against industrial clinics or other health care providers; claims for the legal malpractice of the predecessor attorney who failed to examine all other aspects of liability and neglected to refer the client or preserve the claim. There are many more possibilities too numerous to mention. Investigate the facts, research the law and "cerebrate" the possibilities. You may be surprised at how often you can discover a path to reasonable and fair compensation for the injured worker.

This paper is intended to awaken you to the existence of possible claims which may be available to restore the dignity and pecuniary health of the injured worker and to outline one remedy in particular -- the vicarious liability of the prime contractor for the negligence of the injured construction worker's employer.

I
The Players

There are different trees of responsibility which can be arranged in the commercial construction industry. Traditionally, the landowner/developer would contract with an architect or engineering firm to draw the plans and specifications for the project. Once those were completed, the project would be bid by general contractors and the contract would be let to the winning bid. The general contractor would assume responsibility for the completion of the entire project and would usually perform some of the construction work itself with the balance of the work being sublet to specialized contractors. The subcontractors would contract directly with the general contractor and not the owner.

Variations on this theme could include contracts between the landowner and several general contractors, each with a separate area of project responsibility and each with its own subcontractors. In this case, there may be a construction manager supervising or coordinating the work of all the contractors; but not performing any of the actual construction. The construction manager contracts with the landowner directly and often acts as the owner's representative at the construction site. In addition to these parties, there may be independent inspection firms on the job site testing any aspect of the construction from the soil to the torque of bolts or the consistency of cement.

The relationships and responsibilities of these parties is by contract. Typically the landowner/developer absolves itself of any safety obligations by putting the entire onus of safety on the back of the general contractor who in turn requires each subcontractor to ensure the safety of its work and to comply with all governmental regulations. Architects, as the owners agent, also distance themselves from safety responsibility by disclaiming it in their contracts with the owner or the general contractor. Each party also requires the subservient party to indemnify it for any loss which may occur as a result of any breach of these safety provisions. Thus, everyone passes the duty of safety down the chain of authority to the person most ill equipped and powerless to do anything about it -- the worker. Rather than addressing safety concerns and incorporating safety specifications in the plans from the inception of a project, the owner and contractors ignore it and then blame the worker when tragedy occurs.

In my experience, most construction workers are injured as a direct result of the negligent failure of their employer to follow basic well-known and often required safety practices. Construction injuries are not generally the result of fluke accidents. Workers are hurt because owners, general contractors and subcontractors will not take the time or spend the money to do the job safely and correctly. Most serious construction injuries could be avoided by simply following OSHA or other industrial safety practices. However, the owner doesn't want to pay the price for a safe job and, therefore, does not include safety specifications in the bidding instructions. The contractor attempting to be the lowest and best bid knows that other contractors will not likely add the cost of safety devices or inspectors to their bids and, thus, omits these safety features from its bid. Certainly, a lone contractor who continuously bids $50,000 or $100,000 above his competitors because it is the only one factoring in the cost of safety runs a real risk of perpetual unemployment and bankruptcy.

Unfortunately, the law promotes this callous, indifferent attitude towards the life and health of the worker. By adhering to outdated common law concepts legally exculpating owners and general contractors from the negligence of their subcontractors or by permitting the owner and the general contractor to insulate themselves by contract from liability for the failure of subcontractors to abide by safety regulations, the law destroys any incentive of the owner or contractor to pay for safety. Because the owner and general contractor will not pay for safety, the subcontractors, who usually operate on a slim profit margin to begin with, do not add the cost of safety features to their bids. The result is that workers erect steel without safety belts, lanyards or nets; they work in excavations without shoring or trench boxes; they use equipment which has not been inspected nor properly maintained; they lift worn cables with cranes that are inadequately cribbed; and they die. They die needless and avoidable deaths. This situation will continue until the people at the top of the chain of command bear the full responsibility for safety. Only when the owner and general contractor face liability for the injured worker will they retain safety engineers to incorporate safety specifications in the plans, require subcontractors to quote safety equipment in their bids and hire inspectors to monitor the construction to insure compliance with all safety regulations.

II
Theories of Vicarious Liability

The general rule of law in Indiana is that a person employing an independent contractor will not be liable to the contractor's employees for any injury suffered by them as a result of the negligence of the independent contractor. E.g., Prest-O-Lite Co. v. Skeel (1914) Ind., 106 N.E. 365

  Five recognized exceptions have been whittled from this old bark. As listed in Scott Construction Co. v. Cobb (1928), Ind. App., 159 N.E. 763 those exceptions are:

1. Where the party contracting the work is charged by law or by contract with a specific nondelegable duty;

2. Where the work to be performed under the contract is intrinsically dangerous;

3. Where the work to be performed under the contract will likely cause injury to others unless due precaution is taken to avoid the harm;

4. Where the work to be performed under the contract will create a nuisance;

5. Where the work to be performed under the contract is illegal.

If any of these exceptions apply, then a general contractor may be liable to the injured employee of an independent subcontractor for the negligence of the subcontractor. Unfortunately, Indiana appellate decisions have emasculated the effectiveness of most of these exceptions for the injured worker.

(A)
Legal or Contractual Duty

The Safe Workplace Statute, Ind. Code 22-1-1-10, requires every employer to furnish its employees with a safe workplace, including the use of proper safety devices, safeguards, safe methods and processes and to "do every other thing reasonably necessary to protect the safety of the employee." In Maynard v. Flanagin Brothers, Inc. (1985), Ind. App., 484 N.E.2d 71, the Third District Court of Appeals held that this statute and the regulations promulgated by the Indiana Department of Labor (610 IAC 5-1-1-1) placed a duty on general or prime contractors to insure compliance with governmental safety standards for all employees on the construction site, including employees of subcontractors. Accord, Jones v. Logansport (1982), Ind. App., 436 N.E.2d 1138; Katapodis v. Koppers Co., Inc. (7th Cir. 1985), 770 F.2d 655; but see contra, Hale v. Peabody Coal Co. (1976), Ind. App., 343 N.E.2d 316.

After the Maynard decision, the construction industry began efforts to repeal the regulations adopted by the Indiana Department of Labor in an attempt to eradicate the safety duty imposed under Maynard. Tragically, the industry was successful in its lobbying and on January 15, 1988 the Department of Labor repealed all of its regulations regarding the construction industry formerly found at 610 IAC 5-1-1 et seq. However, the Safe Workplace Statute still exists and the recent decision of Robinson v. Kinnick (1990), Ind. App., 548 N.E.2d 1167 interpreted Maynard to impose the safe workplace duty on the general contractor under that statute rather than the now repealed regulations.

The Indiana Occupational Safety and Health Act found at Ind. Code 22-8-1.1-1, includes a safe workplace statute, Ind. Code 22-8-1.1-2; as well as provisions requiring OSHA compliance, Ind.  Code 22-8-1.1-3.1, and prohibiting interference with safety guards. Ind. Code 22-8-1.1-5. However, Ind. Code 22-8-1.1-48.3 specifically states that IOSHA creates no private right of action for any violation. Thus, while the regulations can be the basis of regulatory action against a negligent employer or contractor, the injured employee cannot bring a direct action for an OSHA violation. Consequently, the original workplace safety statute and the Maynard decision are the best source for a statutory safety duty upon a general contractor. See Robinson v. Kinnick (1990), Ind. App., 548 N.E.2d 1167 (reaffirming the application of Ind. Code 22-1-1-10 to prime contractors but not extending it to landowners).

The contract between the landowner and the general contractor will usually contain a provision requiring the contractor to assure job safety on the construction site. For example, paragraph 10 of standard AIA contracts specifically imposes the obligation of safety on the general contractor. When the contract imposes a safety duty upon the general contractor then it may be liable to the injured worker for the negligence of the worker's employer or others on the job. Allison v. Huber, Hunt & Nichols, Inc. (1977), Ind. App., 362 N.E.2d 193. This duty applies to all workmen on the construction site, not merely to the general contractor's employees, Harris v. Kettlehut Construction Co. (1984), Ind. App., 468 N.E.2d 1069; and it is usually nondelegable. Jones v. Logansport (1982), Ind. App., 436 N.E.2d 1138. Even in the presence of a valid delegation clause, the general contractor will be jointly liable with the negligent subcontractor. See Jones, supra; Allison, supra. Therefore, the contractor's argument that it has met its contractual safety duty by passing it down the line to its subcontractors will not help it escape liability to the injured worker, although it may allow it to be indemnified from the careless subcontractor.

(B)
Intrinsically Dangerous Work

The intrinsically dangerous exception of section 427 of the Restatement (2nd), of Torts is the most frequently litigated exception to the general rule of nonliability for the negligence of an independent contractor. This exception provides that a person employing an independent contractor will remain liable for any injuries caused by the contractor if the nature of the work is intrinsically dangerous. Jones v. Indianapolis Power & Light Co., (1973), Ind. App., 304 N.E.2d 337, recognized the validity of this exception to injured employees of subcontractors; but found that the exception did not apply under the facts of the case. The Court narrowed the definition of intrinsically dangerous work to exclude circumstances and conditions which are not natural, ever present components of the instrumentality itself, but are merely dangers arising from casual or collateral negligence of others.

In Hale v. Peabody Coal Co. (1976), Ind. App., 343 N.E.2d 316, this exception was further emasculated. Hale was injured in a 25 foot fall from an improperly secured scaffold. Exonerating the general contractor, the Court held that an instrumentality is not considered intrinsically dangerous if the risk of injury involved in its use can be eliminated or significantly reduced by taking proper safety precautions. The fact that these safety precautions were not taken did not make the scaffold intrinsically dangerous. Thus, the Court focused this exception upon the nature of the instrumentality itself and not upon the manner in which the work was actually being performed. Similar rulings were rendered in Cummings v. Hoosier Marine Properties, Inc. (1977), Ind. App., 363 N.E.2d 1266, which held that trenching without adequate shoring was not intrinsically dangerous since the danger of a cave-in could have been reduced by proper bracing of the sides of the trench; and in Perry v. Northern Indiana Public Service Co. (1982), Ind. App., 433 N.E.2d 44, which held that welding 20 feet above the ground without fall protection was not intrinsically dangerous since the addition of fall protection could have reduced the chance of injury.

Under the definition of intrinsically dangerous written by the Court of Appeals, little, if anything, would ever be within this exception. There are few jobs in the construction industry which cannot be made safer by using proper safety techniques. However as long as the job could have been made safer, even though it wasn't, the work would not be considered intrinsically dangerous. Other jurisdictions reason that the determination of whether or not work is intrinsically dangerous is not to be decided in the abstract; but, instead, to be determined from the particular manner and methods which were being employed at the time of injury. Thus, trenching without shoring would be intrinsically dangerous since it involves great and unreasonable risk. The fact that shoring, had it been used, could have reduced the risk of injury does not make working without it any less inherently dangerous. E.g. Griesel v. Dart Industries, Inc. (19xx), Cal., 591 P.2d 503.

Finally, in Johns v. New York Blower Co. (1982), Ind. App., 442 N.E.2d 382, the Court of Appeals extinguished the applicability of the intrinsically dangerous exception to the injured worker of an independent contractor. Johns involved another fall at a construction site where no fall protection had been provided. First, the Court held that working at heights without fall protection is not intrinsically dangerous since the addition of fall protection could have reduced the risk of injury. Then the Court proceeded to commingle the separate provisions of sections 427 of the Restatement (2nd) of Torts with sections 413, 414 and 416 and concluded that the employees of subcontractors were not in the class of persons to be protected by the inherently dangerous exception. This exception protected only third parties other than employees. Accord, Texas Eastern Transmission Corporation v. Seymour National (1983), Ind. App., 451 N.E.2d 698. Hence, at least for the present, this exception will not provide a remedy against the general contractor for the injured employee of a subcontractor.

(C)
Due Precaution

This exception, which is found in sections 413, 414 and 416 of the Restatement (2nd) of Torts, provides that the person employing an independent contractor will remain liable for injuries to others caused by the contractor if the nature of the work was such that injury to others was a predictable result absent the use of due precaution. In Hale v. Peabody Coal Co. (1976) Ind. App., 343 N.E.2d 316, the Court held that this exception did not apply to the employees of independent contractors. By use of the term "other persons" the Restatement meant to limit this provision to third person not involved in the work. Accord, Jones v. Logansport (1982) Ind. App., 436 N.E.2d 1138. Thus, strangers to the construction who are injured by the negligence of a subcontractor are the only ones to whom a general contractor may be liable under this exception.

(D)
Nuisance

If the work to be performed under the contract would constitute a nuisance then the general contractor could be liable to the injured employees of subcontractors. There are no Indiana cases applying this exception in the context of the general contractor's liability to its subcontractor's employees.

Ind. Code 34-1-52-1 defines a nuisance as anything which is injurious to health so as to interfere with the comfortable enjoyment of life. There are many construction site dangers which could fall within this definition, e.g. working at height without fall protection, working in unshored trenches, working with defective equipment, etc. The development of this exception may be particularly important in light of the Indiana Court of Appeal's treatment of the two preceding exceptions.

(E)
Illegal Act

Under this exception, a person hiring an independent contractor to perform an illegal act will remain liable to anyone injured during the completion of the act. Again, there are no Indiana cases giving any guidance to the applicability of this exception to the employee of a subcontractor. The extent of the illegality has not been examined either. For example, if a general contractor hires a subcontractor to dig trenches in violation of local ordinances will the general contractor be liable for anyone injured in a cave-in?

III
Other Possible Claims

In addition to the five exceptions to immunity for the negligence of an independent contractor, there are other claims which may be leveled against a general contractor for the injury to the employee of a subcontractor. These claims are not necessarily predicated on vicarious liability but can be based upon the negligence of the general contractor. They include the voluntary assumption of a duty, dangerous and defective work creating an imminently dangerous condition, review and inspection of building specifications.

In Phillips v. United Engineers and Constructors, Inc. (1986) Ind. App., 500 N.E.2d 1265, the Court recognized that a general contractor may be liable for safety violations on the jobsite even though it did not contract to assume safety obligations. The conduct of the contractor in holding regularly scheduled safety meetings, inspecting the jobsite for safety violations and noting any violations, may indicate that it had voluntarily assumed the duty to inspect and correct safety violations. See also, Plan-Tec, Inc. v. Wiggins (1983) Ind. App., 443 N.E.2d 1212; Perry v. Northern Indiana Public Service Co. (1982) Ind. App., 443 N.E.2d 44; Board of Commissioners of Monroe County v. Hatton (1981) Ind. App., 427 N.E.2d 696. However, merely inspecting the jobsite to review the quality of the construction and confirm that it is being built according to the specifications will not be sufficient to hold the contractor accountable for safety violations resulting in injury. Teitge v. Remy Construction Co. (1989) Ind. App., 526 N.E.2d 1008.

In National Steel Erection v. Harkle (1989) Ind. App., 541 N.E.2d 288, the Court held that a contractor may be liable for injury resulting from an inherently dangerous and defective condition of construction. The emphasis under this theory of liability is on a defective condition rather than an intrinsically dangerous work activity. This liability may even extend beyond acceptance of the work by the landowner.

A general contractor may also be liable for the negligence of a subcontractor if the general contractor controlled the method, means and manner of the work activity. However, merely exercising the authority necessary to insure the construction work is completed according to the specifications does not constitute control of the method, means and manner of the subcontractor's work. Cummings v. Hoosier Marine Properties, Inc. (1977) Ind. App., 363 N.E.2d 1266. Control must be to such an extent that the subcontractor is considered to be the servant of the contractor.

Even though the contractor is bound to follow the plans and specifications provided to it, there is a duty to examine those plans and discover defects which are reasonably discoverable or patent. If the contractor proceeds to follow plans which he knows or should know are defective then he may be accountable for the resulting damage. St. Paul Fire & Marine v. Pearson Construction (1989) Ind. App., 547 N.E.2d 853; Luxurious Swimming Pools, Inc. v. Tepe (1978) Ind. App., 379 N.E.2d 992, ovr'd other grounds Berns Construction Co. v. Miller (1987) Ind., 516 N.E.2d 1053.

IV
The Future

Construction site tort liability for injured workers is in a developing state. The last Indiana Supreme Court decision in the area was Prest-O-Lite Co. v. Skeel (1914) Ind., 106 N.E. 365, in which the Court recognized the five exceptions to the general rule of nonliability for the negligence of an independent contractor. Since then, the Court of Appeals has eroded most of these exceptions and extinguished two of them with regard to their impact on the injured construction worker. One decision from the Supreme Court could erase the last two decades of appellate law and resurrect the right of the injured worker to just and fair compensation for safety violations on the jobsite. One opinion could also place the responsibility for safety on those at the top of the chain of command rather than those on the bottom, thereby, insuring that safety would be factored into the specifications of each construction project. In light of the recent constitutional amendments removing the bulk of criminal appeals from the Supreme Court, it is likely that we will receive guidance from the Court on the plight of the injured worker and, hopefully, a reinterpretation of the avenues of recovery.