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OWNER NOT RESPONSIBLE FOR INJURIES TO INDEPENDENT CONTRACTOR’S EMPLOYEE UNLESS OWNER ACTIVELY PARTICIPATES IN CONSTRUCTION TO DIRECTLY INFLUENCE MANNER IN WHICH WORK PERFORMED

  • Liability
  • Stearns, Roberts & Guttentag, LLC
  • No Comments
  • May 16, 2017

OWNER NOT RESPONSIBLE FOR INJURIES TO INDEPENDENT CONTRACTOR’S EMPLOYEE UNLESS OWNER ACTIVELY PARTICIPATES IN CONSTRUCTION TO DIRECTLY INFLUENCE MANNER IN WHICH WORK PERFORMED

By Douglas J. Roberts, Esq., Stearns, Roberts & Guttentag, LLC

As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work. An exception exists if the owner has been actively participating in the construction to such an extent that the owner directly influences the manner in which the work is being performed. The amount of control necessary to pierce the shield of liability must be extensive. There must be such retention of a right of supervision that the contractor is not entirely free to do the work his own way.

In Morales v. Weil, 44 So. 3d 173 (Fla. 4th DCA 2010), the Weils (“Owner”) owned property containing a horse barn that was substantially damaged during two hurricanes. The damage included a hole to the roof visible to the naked eye. The Owner met with the Nicholas Garrett, an independent contractor (“Contractor”) to discuss the demolition of the damaged barn and construction of a new one. The Owner hired the contractor to rebuild the barn, but rejected the demolition scope based on a “side deal” under which Garrett would demolish the old barn so that it looked as if the hurricane destroyed it.

Morales (“Employee”), one of Contractor’s employees, testified that the Owner instructed him to throw the panels off the barn’s roof “here and there” in order to create the impression that the damage was caused by the hurricane. Employee and several other workers could see that the barn was visibly damaged, but still climbed on to it to begin demolition. Shortly thereafter, Employee fell through a weakened roof panel and was injured.

Employee brought an action against the Owner alleging negligence and premises liability. With respect to the negligence claim, the trial court granted summary judgment in favor of the Owner, holding that the Owner lacked the requisite control over the Contractor’s work to expose the Owner to liability for the injured employee. The court found that while the Owner may have told Contractor to scatter the roof debris to imitate hurricane damage, Owner did not instruct the workers on how to accomplish this goal. Thus, the Owner’s control was restricted only to dictating the results of the demolition job, rather than the means used to accomplish the result. The Appellate Court affirmed.
With respect to the premises liability claim, the trial court granted a directed verdict in favor of the Owner. While landowners owe a general duty to invitees to use reasonable care to maintain their premises in a reasonably safe condition and to warn of concealed dangers which are unknown to the invitee, an exception exists when an owner hires an independent contractor to perform hazardous work. The landowner is under no duty to protect the employee of the independent contractor from the hazard created by the performance of the contract work. Employee was hired to perform a dangerous demolition job and was injured by one of the incidental hazards which made the job dangerous. The dangerous condition was patently obvious, and the Owners was in no better position than the Employee to assess the level of damage, and thus Owner owed Employee no duty to maintain the roof in a reasonably safe condition. The Appellate Court affirmed.

This case illustrates that an owner cannot be held liable for the injuries of an independent contractor’s employees where there is no evidence that the owner actively participated in influencing the manner in which the work was performed. It also demonstrates that when an owner hires a contractor to perform a dangerous demolition job, it will not be held liable for the incidental hazards which made the job dangerous.

About the Author:

About the Author: Douglas J. Roberts has been Board Certified in Construction Law since 2005, the first year the Florida Bar offered its members the opportunity to achieve such a designation. He served as a judicial intern to the Honorable Arthur Birken, Broward County Circuit Court Judge, a certified legal intern with the Broward County State Attorney’s Office, and has practiced in the area of Construction Law for over 16 years, during which he has represented the FDIC, Hewlett-Packard, a Panel Bankruptcy Trustee in the Southern District of Florida, as well as general contractors, subcontractors, suppliers, sureties and owners in South Florida. Mr. Roberts has been recognized by his peers as a “Florida Super Lawyer” and focuses his practice exclusively on construction law related representation. For more information, please contact him at djr@stearnsroberts.com