ASSERTING NEGLIGENCE AGAINST A CONSTRUCTION-MANAGER OR OWNER’S REPRESENTATIVE


Unknown-1Cannon v. Fournier, 57 So.3d 875 (Fla. 2d DCA 2011) is an interesting personal injury case that touches upon whether a contractor’s qualifying agent can be individually liable for acts and omissions of the limited liability construction company he/she qualifies and whether a construction company can be held liable for negligence to a third party.

 

In this case, an owner wanted to build a new house. The owner hired a licensed construction company to essentially serve as a construction manager-agency (not-at-risk), although this case does not use this term. In other words, the owner would contract directly with all of the trade subcontractors, but it was the construction company that helped the owner obtain a residential permit, referred trade subcontractors directly to the owner, and supervised, consulted, and coordinated the trade subcontractor’s work, and assisted with inspections at the project. The construction company undertook many of the tasks a general contractor would ordinarily undertake except for obtaining the residential permit and contracting directly with the trade subcontractors.

 

One of the trade subcontractors the owner hired was a framer. This happened to be the only, or one of the only, subcontractors that did not come referred to the owner by the construction company. During construction, it was discovered that a beam had been incorrectly installed on the second floor. The construction company (through its qualifying agent) met with the framer to discuss a solution to this issue, and it was during the correction of this issue that a carpenter working for the framer fell from the second floor severely injuring himself.

 

The injured worker sued the construction company and its qualifying agent under a negligence theory saying, among other things, they had a duty to perform all work in a competent, safe and workmanlike manner and they breached this duty which resulted in the injured worker falling. The construction company and its qualifying agent moved for summary judgment and the trial court granted summary judgment in favor of the qualifying agent dismissing him from the lawsuit, but declined to enter summary judgment in favor of the construction company.

 

On appeal, the Second District held that the trial court denying summary judgment in favor of the construction company but granting it in favor of its qualifying agent was inconsistent. The Second District held that:

 

[O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment. The same rule applies to limited liability companies. Thus, to the extent that the LLC could be held liable for its acts or omissions in connection with the construction of the Hoffmans’ [owner] residence, Mr. Fournier [qualifying agent] may be held liable as well.” Cannon, 875 So.2d at 881 (internal citations omitted).

 

Under the Second District’s rationale, if the construction company owed a duty of care to the plaintiff injured worker, then presumably, so did the qualifying agent. To determine whether the company owed a duty of care, the Second District focused on whether the construction company was serving in the role of the general contractor. The Court focused on many of the facts previously mentioned that a construction manager-agency would undertake, specifically, the coordination, communication, and supervising of construction workers and activities at the job site (despite not contracting with any of the trade subcontractors). To that end, the Court expressed:

 

“The circuit court continued by correctly identifying the critical point as the extent of the LLC’s control over and supervision of the job site. A person or entity that controls a supervises the job site has a duty to provide workers on the job with a safe place to work. If the LLC assumed such a duty voluntarily or by contract, it may be held liable to workers who sustain injuries on the job caused by a breach of that duty without regard to whether the LLC was acting as a general contractor.” Cannon, 875 So.3d at 882.

 

Accordingly, the Second District reversed the summary judgment entered in favor of the qualifying agent (because if his construction company could be negligent, then so could he under the Court’s rationale.)

 

Outside of the personal injury context, this case can be used to support a negligence argument against an owner’s representative or construction manager-agency by a non-privity subcontractor, etc. The duty owed would be that the entity is essentially acting as a general contractor (or has similar job-related functions), but just without the title. Therefore, the entity owes a duty to ensure that construction is properly supervised, coordinated, and managed in a competent, safe and workmanlike manner.

 

Furthermore, this case can be used to support an argument against a qualifying agent to hold that the qualifying agent should be held individually liable for the torts of the construction company he/she qualifies. This argument would carry more weight if the company, similar to the company in Cannon, was a sole-owned company with the qualifying agent serving in the role of the owner, qualifying agent, and lone employee of the company. However, even if this were not the case, if the qualifying agent is the one overseeing construction activities, then arguably, if their company commits a tort, they too can be held liable for participating in the tort, especially considering companies can only act through people.

 

 

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.

OWNERS SHOULD BE CONCERNED WITH PREMISES LIABILITY CLAIMS ARISING FROM INJURIES DURING CONSTRUCTION

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.