By Quenda Behler
You might think that if a subcontractor gets hurt on your job
site, it's his problem. After all, he's an independent
contractor, not one of your employees. But sometimes it's your
An injured sub might be able to sue you for negligence, and if
he does, he could win much more than your workers'
compcovered employee ever could. It doesn't matter that
the injured party is employed by a subcontractor, even if he's
covered by his own company's workers' comp policy. He can still
sue you for negligence. In fact, his employer's workers' comp
company could sue you to recover the money it pays out to
When your own employee is hurt on the job, the amount she can
collect is usually limited to what workers' comp will pay. But
if a sub is injured on your job and if he can prove he was
injured because of your negligence or the negligence of someone
who works for you, there's no legal limit on the amount of
damages he can collect.
What Is Negligence?
A lawsuit for negligence is based on the premise that you had
an obligation to do something (the law calls it a legal duty)
and you didn't do it or didn't do it right. You have an
obligation to keep your job site safe. That doesn't mean that
no one ever gets hurt on your site; it means no one should get
hurt because of your carelessness, the carelessness of people
you supervise, or some defect in the equipment you
If a sub is injured because you don't manage the site the way
you're supposed to, there are plenty of lawyers who would be
happy to talk to him about suing you. If the injury is bad
enough, they'll go straight to the hospital to sign him
Here's an example of what I'm talking about. In one case, the
painting sub climbed up on the staging that was owned and
erected by the masonry sub. But, unfortunately, the masons had
removed one of the safety rails several days before; as a
result, the painter fell off the staging and broke some
If you think that's the masonry contractor's problem, think
again. The painting sub sued the GC for negligence. The GC was
found negligent because he knew or should have known that the
masons had removed the safety rails, and he did nothing about
it. The painting sub could also sue the masonry sub.
How Courts Decide
It's important to understand that not every accident that a
contractor might be liable for is caused by his own negligence.
Sometimes the cause is someone else's negligence; other times
it's just one of those things. How does a court decide whether
a contractor is liable for an accident?
First it looks at safety standards. Was your job site as safe
as similar job sites? Did your company have a safety policy in
place? Did you do things like hold safety meetings and train
people how to use nail guns? Being able to answer yes to these
sorts of questions can help your case. You're more likely to be
found liable if your policies or past performance are found
Courts will also look at the OSHA and state safety standards
for the activity that caused the injury. The attorney for the
plaintiff subcontractor could use those standards as evidence
of what you were supposed to do and could bring in witnesses to
testify that you didn't do it. But actual witnesses are not
even necessary. In some cases, the mere fact that someone got
hurt in a particular manner will be considered evidence of
negligence. That's the "trout in the milk bottle" legal
principle. You don't need to know how the fish got in there to
know that something is screwy.
This is why your insurance company keeps urging you to make
sure that your employees and your subs use safety
equipment and follow all safety standards.
The Inadequacy of Insurance
Speaking of insurance, you might be thinking that you pay
premiums for liability insurance so it will be there to pay
claims by injured subs. Isn't that what liability insurance is
for? In theory, yes, but you might be sued for more than the
amount of your coverage. Say you have a million-dollar policy
and the plaintiff wins a judgment for two million. You get to
pay that second million yourself.
Even if you win the case, you could find yourself paying
higher premiums or looking for a new insurance carrier because
your current carrier decides to cancel your policy. Insurance
companies have access to vast databases of information, so your
carrier is going to know about it if an accident happens on
your site. If a sub's employee files a comp claim against his
own company's insurance company for an injury that happened on
your job, you could be affected by the fact that someone paid a
claim on an accident that occurred on your site, even though
there were no allegations of negligence on your site.
Here's another potential problem with liability insurance. If
you read your policy carefully, you may find exclusions for
cases in which you were "grossly" negligent or failed to meet
certain safety standards. Clauses such as those are subject to
some interpretation, but you're not the one who gets to do the
As a contractor, your first and best line of defense is to put
effective safety policies and procedures in place. There is no
downside to safety. Make those safety procedures a part of your
contract with your subs. Then you or your construction
superintendent needs to get out there on the job site and see
that those procedures are followed.
has practiced and taught law for over 25
years and is the author ofThe
Contractor's Plain-English Legal Guide(www.craftsman-book.com).