Subcontractors Owe a Duty of Care to other Subcontractors

In Cromwell v. A & S Construction, Inc., 2013 UT App 240, Cromwell, a  subcontractor to A & S Construction, Inc. brought a negligence claim against A & S after he fell down an empty elevator shaft and suffered severe injuries.  A & S was the general contractor on the project and had subcontracted with Guns and Hoses to install doors to the empty elevator shaft.  Guns and Hoses secured the doors and posted a warning sign, but Cromwell fell down the shaft when he opened the doors to putty the trim.  Seeking to avoid some or all of the liability for Cromwell’s injuries, A & S gave notice of intent to allocate fault to Guns and Hoses.  Accordingly, Guns and Hoses became entangled in the litigation.

The district court, however, determined that Guns & Hoses owed no duty to Cromwell to secure the doors.  The district court also determined that even if Guns & Hoses owed Cromwell such a duty, Guns & Hoses did not breach that duty because Guns & Hoses did secure the doors and did post warnings.

On appeal, the Court of Appeals recognized for the first time in Utah that
subcontractors owe a duty to perform work without creating an unreasonable risk to another subcontractor.   The Court of Appeals, however, limited the extent of the subcontractor’s duty by the scope of the subcontractor’s contract.  Guns & Hoses contracted to install the elevator doors. Guns & Hoses therefore had a duty to exercise reasonable care to protect other workers from dangerous conditions created by that work only.  The Court of Appeals accordingly held that the duty of Guns & Hoses did not extend to securing the shaft.  Implied by the Court of Appeals opinion is the conclusion that A & S and perhaps the subcontractor contractually responsible for and in control of the empty shaft shared the duty to protect Cromwell and other subcontractors from the dangerous condition created by the empty shaft.
 
The decision in Cromwell highlights the importance of care in contracting.  By carefully spelling out the scope of work, the general contractor and subcontractors can allocate the risk of liability for site injuries.  Leaving ambiguity in the scope of work, however, exposes all contracting parties to a higher risk of expensive litigation over the allocation of fault.  From Cromwell, we also infer that carrying adequate general liability insurance is essential in the construction industry.  Above all, parties to construction contracts should learn that they must exercise great care in warning of and mitigating dangerous conditions on job sites.

Copyright © Daniel L. Day 2013