John Sasser, a building inspector, fell while ascending temporary stairs that had detached from a building he was inspecting. The stairs were constructed by a subcontractor for use while the building was under construction. Sasser and his wife sued the owner of the building, the general contractor, the subcontractor, and the insurers for the contractors.
The building owner had hired the general contractor to manage the construction, and the general contractor had hired the subcontractor who constructed the temporary stairs. Pursuant to the construction contract, the building owner agreed to personally perform some of the construction work, but none of his tasks included erecting temporary stairs.
The court dismissed the plaintiff’s claims against both the building owner and the subcontractor because they could not meet their burden of proof against them under Louisiana law. Specifically, the plaintiffs could not show (1) that the owner exercised operational control over the subcontractor’s construction of the stairs, and (2) that the general contractor controlled or supervised the subcontractor’s construction of the stairs.
In Louisiana, a building owner is only held liable for injuries sustained because of ruin, vice or defect of the building if the plaintiff can show that the owner knew or, in the exercise of reasonable care, should have known of the vice or defect that caused the plaintiff’s injury, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise reasonable care. If, however, that building is under construction, a different set of rules applies. In that instance, the owner will only be held liable if it is shown that he exercises operational control over the methods of operation or if he gives express or implied authorization for unsafe practices.
In this case, the plaintiffs failed to meet their burden of proving that the owner exercised operational control over the subcontractor’s construction of faulty stairs. The owner did not hire the subcontractor, did not supply the subcontractor with tools, and did not instruct or otherwise supervise the subcontractor in his construction of the temporary stairs. Consequently, he did not exercise operational control over the construction of the stairs, and thus, could not be held liable for plaintiff’s injuries.
Concerning plaintiffs’ claim against the contractor, Louisiana law affords only two circumstances in which a general contractor can be held liable for the offenses of a subcontractor in the performance of his contractual duties. They are: (1) if the subcontractor is performing ultra-hazardous work, or (2) if the contractor reserves the right to supervise or control the subcontractor’s work or otherwise gives express or implied authorization for unsafe practices. Here, the erection of temporary stairs is not ultra-hazardous work. Moreover, the subcontractor and his employees were not supervised by the contractor, and the contractor did not provide them supplies. Additionally, the subcontractor maintained his own liability insurance to cover his employees’ work. Thus, the plaintiffs failed to meet their burden of proving that the contractor supervised or controlled the workmanship of the subcontractor.
Take-Away: Be mindful that claims against a building owner for alleged injuries occurring while a building is under construction will be governed by different legal standards than the more common claims for injuries allegedly sustained because of the ruin, vice, or defect of an existing building.
This article was co-authored by Lizzi Richard, an associate at Irwin Fritchie Urquhart & Moore LLC.