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As a general rule, the negligence of a subcontractor is not
imputed to the general contractor under a theory of vicarious
liability. The general rule does contain some exceptions,
however, that prevent it from being applied in all instances.
In some jurisdictions, the general rule may be partially abrogated
by statute. In Casanova v. Marathon Corp., 2008 U.S.
Dist. LEXIS 72571 (D.D.C. 2008), the court examined, first,
this general liability rule, and, second, whether the D.C.
Industrial Safety Act exposes general contractors to additional
liability due to the contractor's control over the workplace
where an employee is injured.
Nuño Casanova, an employee of a subcontractor, was injured
while working at a jobsite in the District of Columbia
operated by Marathon Corp., a general contractor. Casanova
was hit by a power line that fell several hours after a truck
operated by Aggregate & Dirt Solutions ("ADS"), another
subcontractor, struck a supporting telephone pole. Casanova
sued Marathon in Federal District Court for the District of
Columbia on the grounds that Marathon was vicariously
liable for ADS's negligence, and that Marathon failed in its
duty to provide a "reasonably safe" workplace for Casanova
under D.C.'s Industrial Safety Act.
Casanova first argued that the work that he was doing involved
a "special danger," meaning that the general vicarious
liability rule would not shield Marathon. Broadly, when
a contractor is employed "to do work involving a special
danger to others which the employer knows or has reason to
know to be inherent in or normal to the work, or which he
contemplates or has reason to contemplate when making the
contract," the employer will be vicariously liable for harm
caused to third-parties by the failure of the contractor to
prevent such dangers. The court rejected this argument without
inquiring into whether the plaintiff was injured due to
work that presented a "special danger." Thus, this exception
to the general rule on vicarious liability was not applied.
Casanova next argued that, under the Industrial Safety Act,
Marathon was an "employer" and, therefore, had a duty to
provide a safe workplace for Casanova, despite the fact that
Marathon was not Casanova's direct employee.
The Industrial Safety Act, D.C. Code § 32-808(a), places an
affirmative duty on "[e]very employer," among other things,
to "furnish a place of employment which shall be reasonably
safe for employees...." The Industrial Safety Act "creates a
statutory duty when an entity has control or custody over
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'the place of employment.'" Thus, under one reading of the statute,
if an individual working at a "place of employment" over
which a general contractor exercises some control is injured,
the general contractor may be legally liable for the injury.
The key issue, as the Casanova court explained, is whether
the defendant's "control over the jobsite" caused it to be defined
as an "employer" under the Industrial Safety Act. The
Casanova court concluded that, as a matter of law, it could
not determine that a general contractor will necessarily be
considered the "employer" of a subcontractor's employee
under the Industrial Safety Act. Rather, whether an entity
qualifies as an "employer" under the Act "is a question of
fact to be confronted in each case."
What makes the court's ruling somewhat curious is that, in
the first part of its opinion, it determined that Marathon did
not have the power to supervise or control the party directly
responsible for Casanova's injury. If the court had determined
that Marathon possessed such control, common law
principles of vicarious liability may have applied, as the subcontractor
would not be truly independent. Thus, the court
permitted the jury to find that a general contractor could be
considered an "employer" of a subcontractor's employees
under the Industrial Safety Act based solely on the general
contractor's ability to "control" the jobsite and without regard
for the traditional standards of a vicarious liability.
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