Builders and Contractors Exchange
Weekly Bulletin: 27 Jun 2005
General Contractor Is Not Liable For Subcontractor's Creation Of A Hazardous Condition Causing Risk Of Harm Only To The Subcontractor's Employees
By: Katharina Brekke Powers
On May 3, 2005 the Virginia Court of Appeals in Davenport v. Summit Contractors, Inc., 2005 WL 1017624, held that a general contractor would not be held liable for a subcontractor's violation of safety standards when the safety breach was caused by the subcontractor and it only caused risk of harm to the subcontractor's employees.
The general contractor in this case had subcontracted the installation of exterior siding on an apartment project. VOHS agents inspected the siding worksite and found various violations. The citation held that the subcontractor had failed to provide the employees with hard hats and with fall protection while on overhead working platform. Both the general contractor and the subcontractor were cited for the violations. The general contractor contested the citation.
The Court found no basis in the Virginia Occupational and Safety Health Act ("VOSHA") which would extend the joint-employment concept to an employer who neither creates the worksite hazard nor allows his employees to be exposed to it. The Court acknowledged that in certain circumstances breach of VOHSA could extend the liability for the breach to other employees on the worksite.
In this case the parties agreed that there were only two employees of the general contractor at the site at the time of the inspection, however none of the general contractors employees were exposed to the violative condition; that the general contractor did not create any of the conditions involved in the citation; and finally that the citation was based on VOSH "multi employer citation policy" contained it the agency's Field Operation Manual and that it had not been promulgated as rule or regulation under VOSHA.
The Court, based on these facts would not adopt a form of vicarious statutory liability without any statutory authority to do so. The Court found no provision of the Virginia Occupational Safety and Health Act nor any state administrative regulation promulgated under it which would authorize the imposition of this type of civil penalty liability on a general contractor. Rather, the only regulation addressing the subject of general contractor liability for subcontractor defaults is found in 29 C.F.R. 1926.16(b) which was specifically omitted from the list of regulations incorporated into Virginia law.
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.