shutterstock_153987515You want to hear more on the POWER of statutory workers compensation immunity?  Well, here it is, because as I have mentioned in the past, workers compensation immunity is powerful reinforcing the importance for contractors to ensure the subcontractors they hire absolutely have workers compensation insurance.  Likewise, subcontractors want to ensure the subcontractors they hire also have workers compensation insurance.


In the case of Fisk Construction, Inc., v. Obando, 42 Fla. L. Weekly D2501b (Fla. 3d DCA 2017), a general contractor hired a roofer.  The roofer subcontracted a portion of its work to a sub-subcontractor.  A foreman of the sub-subcontractor than orally hired a laborer to perform a portion of the work the sub-subcontractor was responsible for performing.  The laborer got hurt and a lawsuit was filed.  The trial court ruled that the sub-subcontractor could not rely on workers compensation immunity as an affirmative defense finding that the sub-subcontractor waived and/or was estopped from asserting this defense.  There appeared to be an initial denial of workers compensation benefits that was later remedied by the sub-subcontractor’s workers compensation insurer agreeing to pay the laborer’s hospital bills and medical visits.  (Since the laborer was hired in an oral, handshake-type of deal, it could have been that executives of the sub-subcontractor had to investigate the laborer’s involvement at the project since he was not an employee of the company.)


On appeal, the Third District reversed holding that the sub-subcontractor could rely on workers compensation immunity as an affirmative defense.  “[A]n initial denial of liability or [workers compensation] benefits does not automatically estop an employer from asserting workers’ compensation immunity [as an affirmative defense].”  Fisk Construction, supra


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


imagesParticipants in construction NEED to have safety programs and protocols. Many contractors do in order to minimize injury and prevent death and many even employ a safety officer on their projects. Safety protocols are also important to ensure compliance with the Occupational Safety and Health Administration’s (OSHA) health and safety regulations. Safety programs and common contractual provisions require parties to keep their work environment clean and without debris. For example, section 3.15.1 of the AIA A201 General Conditions (2007) provides:


The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor’s tools, construction equipment, machinery and surplus materials from and about the Project.”


Safety programs are not only important for contractors and subcontractors, but also for those invitees that are invited to the construction project. The case of Skala v. Lyons Heritage Corp., 38 Fla. L. Weekly D2485b (Fla. 2d DCA 2013), exemplifies what can happen if an invitee of a general contractor gets injured from construction debris. In this case, the general contractor on an ongoing residential project was interested in hiring a new tile installer for the project. There was an issue with the performance of the original tile installer.  The new tile installer was asked to inspect the installed tile work in order to provide an estimate as to what it would cost to fix and complete the work. A contract was not executed and there was no confirmation that a price would even be reached.  During the inspection, the new tile installer tripped and fell on known and obvious construction debris while entering the house and suffered fractures in both of this arms. The new tile installer sued the general contractor for negligence asserting that the contractor failed to maintain the premises in a safe condition. The trial court entered summary judgment in favor of the general contractor.


On appeal, the Second District found that the new tile installer was a business invitee (i.e., a person invited to property by the possessor of the property)–”because Mr. Skala [new tile installer] was a business invitee on the property, Lyons Heritage [general contractor], as the possessor of the premises, owed him a duty, as a matter of law, to maintain the premises in a reasonably safe condition.” Skala, supra (internal quotation omitted).


The general contractor, however, would not be liable for injuries caused by known or obvious dangers, such as the known and obvious construction debris, unless it should have anticipated the injuries despite the known or obvious nature of the dangers. This is referred to as the obvious nature doctrine: “The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.” Skala, supra, quoting DeCruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013).  Stated differently, the possessor of the property can be held liable for the obvious dangerous condition if he can reasonably foresee that the condition will cause harm and will be encountered by the invitee. Id. quoting Ahl v. Stone Sw., Inc., 666 So. 2d 922, 925 (Fla. 1st DCA 1995) (“A reasonable probability to expect harm to an invitee from known and obvious dangers may arise . . . if the landowner may expect that the invitee will encounter the known or obvious danger, because, to a reasonable person in the invitee’s position, the advantages of [facing the danger] would outweigh the apparent risk.”)


The Second District reversed the summary judgment finding an issue of fact existed as to whether the exception to the obvious danger doctrine applied, that being that the general contractor should have anticipated that the new tile installer would encounter the known and obvious construction debris because, to a reasonable person in the installer’s position, the advantages of facing the construction debris would outweigh the risk.


If the construction debris was not known and obvious to the new tile installer, the general contractor would have also been sued in negligence under a theory that it breached its duty of warning the new tile installer of a latent dangerous condition. See Skala, supra, n. 3 (finding that the general contractor had the duty to warn the new tile installer / invitee of latent dangerous conditions).


This case illustrates one example of the importance of safety.   Safety programs should not be taken lightly!   Sometimes, with business invitees, it is good practice to have them provide a release before they enter the property to the owner, contractor, and applicable parties.


As an aside, the Concrete Construction Magazine in November 2013 tweeted an interesting 2010 statistic from the United States Department of Labor (the OSHA agency falls within the Department of Labor) itemizing the most common OSHA violations in 2010 were for scaffolding, fall protection, stairways and ladders, personal protective equipment, electrical, health hazards, general provisions, and trenching.



Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.



Unknown-1Injuries are always a concern on construction projects due to the inherent risks associated with performing work on a project.  Owners, in particular, should be concerned with injuries on their project because they are sometimes sued for negligence under theories of premises liability when injuries are sustained on their project.


In order to best allocate the risk of injuries, owners should, among other things, contractually (i) specify that the contractor is performing work as an independent contractor, (ii) specify that the contractor is solely responsible for its means and methods of construction, (iii) specify the contractor’s scope of work, especially if the scope is unrelated to new construction, but involves a remediation, renovation, repair, or maintenance scope, and (iv) include other provisions concerning the contractor’s responsibility for safety.  This is beside the owner ensuring that the contractor has sufficient liability insurance and workers compensation insurance prior to the contractor performing any work.


The case of Strickland v. Timco Aviation Services, Inc., 36 Fla. L. Weekly D1420a (Fla. 1st DCA 2011), discusses an owner’s potential liability for injuries sustained to its contractor’s employee.  In this case, an owner hired a contractor to pressure wash the roof of an airplane hangar and perform maintenance to the skylights on the roof.  While the contractor’s employee was pressure washing the roof, he accidentally got chemical in his eyes causing him to step on a skylight and fall five stories to the ground.  The employee sued his employer (the contractor) in addition to the owner alleging that the owner was negligent because, among other reasons, the skylights could not withstand 200 pounds of pressure and were indistinguishable from the roof.


The First District Court of Appeal, in examining an owner’s liability for injuries, maintained:


Generally, a property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of the work.  However, there are two exceptions to the general rule.  An owner can be held liable for damages sustained by an employee of an independent contractor where (1) the property owner actively participates in or exercises direct control over the work; or (2) the property owner negligently creates or negligently approves a dangerous condition.  Moreover, the property owner must maintain the premises in a reasonably safe condition for business invitees, including employees of independent contractors. See Timco (internal citations omitted).


Under the first exception, an owner can be liable if it imposes “such right of supervision or direction that the contractor is not entirely free to do the work his own way.”  See Timco quoting City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987).


Under the second exception, an owner can be held liable if the owner negligently creates or negligently approves the dangerous condition causing the injurySee Timco quoting City of Miami, 509 So.2d at 346.  However, even under this exception, an owner “will be held liable for negligence only with regard to those dangers that are not known to the independent contractor or could not have been discovered through the exercise of due care.”  See Timco citing Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla. 1953).


In Timco, the First District affirmed summary judgment in favor of the owner holding the owner not liable for the contractor’s employee’s injuries.  The Court held that the danger of falling through the skylights was an obvious risk considering the contractor was hired to perform maintenance and repair work to the skylights.  The owner did not have any duty to notify the contractor  of the risks posed by performing work on the skylights since this was an integral part of the contractor’s scope of work.  Further, the Court held that the owner had no liability due to the employee’s argument that the skylights could not withstand 200 pounds of pressure because there was nothing to suggest the owner knew or should have known of this alleged design defect.


The risk of injuries is one of the many risks that owners consider when hiring a contractor to perform work — any scope of work — on their project. Ensuring that such risks are contemplated and best allocated is vital and a chief reason why attorneys should be utilized in the drafting of construction contracts.  If an owner has knowledge of a dangerous condition on their property, they should warn and notify the contractor they are hiring as well as their attorney so that this risk can be addressed in the contract.  Notwithstanding, an owner should certainly not engage in any specific act during construction or immediately prior to construction that can cause or increase the risk of injury on their project.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.