Managing contractual and legal responsibility in site safety

Navigating legal responsibilities can be challenging

Managing contractual and legal responsibility in site safety
Rose Morrison

Managing site safety is a core concern for everyone involved in a construction project, but navigating legal responsibilities can be challenging. Unfortunately, injury-related lawsuits are not uncommon in the construction industry. There were 19,790 cases of injury and illness [1] in construction in 2019 alone.

Construction is a dangerous industry by nature, so even the safest sites will have an accident once in a while. The people within a project’s chain of command may not all be liable for any payouts for those accidents, though. Whether you are a project owner or a subcontractor, it is helpful to know the basics of how contractual and legal responsibility works in construction site safety.

Who Is Liable?

A good rule of thumb when determining and assessing liability and responsibility for site safety is control. Most liability rulings are based on whether or not a body or individual was exercising control over the actions of the person injured on-site. This can come down to highly technical circumstances or more broad, indisputable circumstances. Regardless, as soon as a judge deems that someone was exercising control over the actions of the injured party, that person takes on liability for those injuries.

Determining liability can get more complicated when special circumstances arise. The most impactful recent case of this is the ongoing COVID-19 pandemic. Due to the nature of such a highly contagious and severe virus, liability on construction sites is no longer as black and white as it used to be. A force majeure clause may have been sufficient to cover the circumstances of the pandemic initially, but the longer it continues, the more construction leaders are working to be prepared.

Many project owners, contractors, and subcontractors are modifying their contracts to include special COVID-19 clauses [2] that expand on their general force majeure clause. These clauses outline specific virus-related details such as compensation during required quarantine in the event of a COVID-19 outbreak on-site.

Responsibilities of Owners and Hirers of Contractors

In general, liability is passed down the chain of command on projects until it ultimately falls mainly on the general or prime contractor. Project owners will almost universally stipulate in their contracts that they are not responsible for any injuries on the project site because the individuals working on the site are classified as “independent contractors.” This clarifies that these independent contractors are not employees of the project owner. As such, the project owner is not responsible for their actions.

Project owners may hire general contractors directly or hire another party to oversee the project and hire contractors. Whoever is hiring the project’s general contractors will also typically state in their contract that they are not responsible for the actions of any independent contractors on the project site.

Responsibilities of the General Contractor

Liability and responsibility for site safety tend to fall on the shoulders of the general contractor. This is because they oversee the most dangerous part of the construction process. Liability can still get complicated, though, especially in regard to injuries sustained by subcontractor employees.

For example, it is not uncommon for general contractors to enforce safety standards in addition to required OSHA regulations [3] on-site. Ideally, this reduces the likelihood of serious accidents happening at all, which is preferable for everyone involved. Some general contractors even assign a safety supervisor to work on the site. However, in the case that an accident does happen, some courts may find general contractors liable [4] for the actions of subcontractor employees due to enforcement of safety standards and regulations.

This comes back to the question of control mentioned above. The contractor can be determined to be asserting control over the actions of subcontractors and their employees through the enforcement of safety requirements. This is not universally the case, though, and different courts take varying approaches to the issue. Imposing safety standards can prevent accidents, but they can also make the general contractor responsible when accidents do occur, forcing general contractors to walk a fine line. Courts which rule that safety regulations are not grounds for liability can be helpful for general contractors in this regard.

Navigating Safety

Construction can be a highly rewarding profession, but navigating its hazards is a necessary part of the industry. The best approach is for project owners, contractors, and subcontractors to work together to create a safe work environment in addition to creating responsible contracts. Ultimately, the best liability policy is the one that never needs to be used, thanks to a safe and well-managed construction site.