Third-party Liability: Can A Subcontractor Sue A General Contractor For Injuries On The Job?

On most construction sites, there is usually one general contractor and multiple subcontractors or trades performing specialty work.  The high amount of workers present can often cause chaos which renders the construction site unsafe and increases exposure for workers to be injured.  What becomes even more chaotic is determining who can be held liable for a worker’s injuries when so many different employers are working on the same project.

Generally, a subcontractor cannot sue a general contractor for injuries sustained at a construction site.  Depending on the facts and events that led up to an injury, however, a few exceptions may apply.  First, all companies owe third parties a duty of reasonable care.  This duty can be triggered when a general contractor orders a subcontractor to perform work that is dangerous.  Second, a general contractor has a duty to exercise reasonable care when they exercise control over a subcontractor.  Third, a general contractor has a duty to use reasonable care to keep the premises under his control in a safe condition.

How Does The “Reasonable Care” Standard Apply?

“Reasonable care” is defined as “the degree of caution and attention to possible dangers that an ordinarily prudent and rational person would use in similar circumstances.”  This is a subjective test of determining whether a person is negligent or liable, and it will almost always be considered when a subcontractor seeks to hold a general contractor liable for injuries that resulted while working at a construction site.

Here are a few examples that could be considered a failure to use reasonable care by a general contractor:

• Ordering a worker to use a cutting torch around flammable gases
• Ordering a worker to work in an oil well without a hard hat
• Ordering a worker to perform electrical work when conditions are wet
• Ordering a worker to operate heavy equipment that is unsafe
• Rushing work in order to maintain project deadlines
• Failing to warn a worker of unknown or unobvious hazards
• Failing to make or keep the construction site premises safe
• Failing to properly coordinate work between multiple subcontractors

What If I Receive Workers’ Compensation From My Employer?

Under Texas Labor Code § 408.001(a), “recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”

In Texas, however, employers are not required to subscribe to Texas Workers’ Compensation.  This means that if an employee is injured while working for an employer who is a nonsubscriber to Texas Workers’ Compensation, the employer can be sued for the employee’s personal injuries and other damages.

When the employer is a subscriber to Texas Workers’ Compensation, the employee is generally barred from bringing legal action against his employer.  This does not mean, however, that other responsible contractors on the construction site are also shielded from liability.  Usually, the workers’ compensation bar just exists between the employee and the employer.  The one exception is when a general contractor has purchased an “Owner Controlled Insurance Program” (commonly referred to as an “OCIP” policy) that provides workers’ compensation benefits for all workers regardless of who employs the injured worker at the time of accident.

What Damages Can I Pursue?

A person who is injured at a construction site can sue for any and all damages to which he is entitled.  Here are some examples below:

• Past and future medical expenses
• Past and future loss of income, wages, earning capacity, or inheritance
• Past and future mental anguish
• Past and future pain and suffering
• Physical impairment
• Disfigurement
• Exemplary damages (punitive damages)
• Loss of consortium
• Loss of enjoyment of life

While some of these damages can be easily traced back to a certain amount, others are not, and are at the discretion of the jury.

What To Do If You Or A Loved One Was Injured While Working At A Construction Site?

There are many different factors that must be analyzed when determining whether to file a lawsuit against a general contractor for injuries sustained at a construction site.  Unfortunately, answers to these questions are usually not reached until after filing a lawsuit and beginning to conduct discovery (the exchange of information between all parties involved).  If you or a loved one have been seriously injured while working at a construction site, you should seek legal representation immediately.  The construction injury attorneys at Morrow & Sheppard, LLP have represented many workers injured by a general contractor’s negligence and therefore know how to protect your rights.  Call us at (800) 489-2216 for a free consultation today.