A question of liability

A subcontractor's injured employees could pose additional liability risks

Let's assume you are a residential roofing contractor who hires subcontractors for your jobs. If an employee of a subcontractor is injured on a job site and the injury is a result of an Occupational Safety and Health Administration (OSHA) violation, could you face liability in a potential civil suit brought by the injured employee even if the subcontractor was responsible for OSHA compliance? Or could the subcontractor's employee seek to recover additional dollars in a civil action for negligence if workers' compensation benefits are not the exclusive remedy available to the injured employee? If you are cited by OSHA and found to be a controlling employer, the citations might be used as evidence against you in a lawsuit.

A scenario

For example, consider a situation where a roofing contractor ("Roof Co.") is hired to perform reroofing work on a two-story residence in Wisconsin. Roof Co. subcontracts 100 percent of the work to Subcontractor Sam. The subcontract agreement requires Subcontractor Sam to abide by Roof Co.'s safety manual and states safety violations are grounds for termination. At the job site, Roof Co.'s involvement includes daily visits by the Roof Co. superintendent during which he delivers materials. He also monitors quality control of the work being done by Subcontractor Sam's crew and ensures the work adheres to Wisconsin's building codes.

Roof Co.'s superintendent also is responsible for checking for OSHA or safety violations he observes and directing Subcontractor Sam to correct any violations. In addition, it is Roof Co.'s business practice to periodically send its safety director to job sites even when none of Roof Co.'s employees are performing work. A few days into the project, one of Subcontractor Sam's employees ("Isaac") falls from the roof onto the pavement below. Isaac suffers a severe head laceration and is knocked unconscious. He is rushed to the hospital by ambulance, and, luckily, his injuries are limited to broken bones and a concussion. Roof Co. investigates the incident.