Nebraska’s Non-Delegable Duties
Why Some Duties Cannot be Contracted Away
by Kari Scheer, Woods & Aitken LLP May 2016
The contracts are drawn up on a construction project. The owner has included contract provisions which state that the general contractor will be solely responsible to for the work and for worksite safety. In turn, the general contractor has included provisions in its subcontract stating that its subcontractor will be solely responsible for all work under its scope and will be solely responsible for the health and safety of its employees. So, the owner and the general contractor will not be liable for an injury to a subcontractor’s employee, right? Not so fast.
Under Nebraska law, the negligence of an independent contractor is generally not imputable to the person engaging the contractor. Stated another way, an employer of an independent contractor is generally not liable for physical harm caused to another by the acts or omissions of the independent contractor or its servants.
But there are exceptions to this general rule when the employer retains control over the contractor’s work or the employer has a nondelegable duty to protect another from harm. The three nondelegable duties include: (1) the duty of an owner in possession and control of the premises to provide a safe place to work, (2) a duty imposed by statute or rule of law, and (3) the duty of due care when the work involves special risks or dangers.
A. Control Over Work
The control exception exists because, where an owner or general contractor maintains control over an independent subcontractor’s work, it calls into question whether the subcontractor was actually independent at all. If the subcontractor is an agent of the owner or the general contractor, liability can be imputed under general agency law.
The Nebraska Supreme Court has clarified when the control exception applies in Gaytan v. Wal-Mart, 289 Neb. 49, 59, 853 N.W.2d 181, 193 (2014). Specifically, to impose liability on an owner or general contractor for injury to an independent contractor’s employee based upon retained control over the work, the owner or general contractor must have (1) supervised the work that caused the injury, (2) actual or constructive knowledge of the danger which ultimately caused the injury, and (3) the opportunity to prevent the injury. Thus, the control must manifest in an ability to dictate the way in which work was performed and directly relate to the work that caused the injury. It is not enough to have the right to start and stop work, inspect progress, or make suggestions that need not be followed.
In examining whether an owner or a general contractor exercises control over the work, both the language of any applicable contract and the actual practice of the parties should be examined. For example, if the contract states that the general contractor will have no control over the subcontractor’s work, but the general contractor proceeds to control and direct the work that ultimately causes injury to a subcontractor’s employee, the actual practice of the parties will likely show sufficient control to impute liability to the general contractor.
B. Safe Place to Work
The safe place to work exception is related to the physical condition of the premises, not the manner in which work is done. Only one in possession or control of the premises can be held liable for the failure to provide a safe place to work. It is not enough to own the property. Mere ownership is not sufficient to confer liability if the owner has not maintained possession or control of the premises during construction.
The extent to which an owner is deemed to be in “possession” or “control” of the premises may turn on the type of work being performed. For example, when an owner hires a general contractor for a complete construction project, the owner often turns possession and control of the premises over to a general contractor. In contrast, when the construction at issue is simply repairing an existing building, the owner is more likely to retain control over the premises. Regardless, courts will probably look both to the contractual language and the practice of the parties to determine whether an owner, a general contractor, or both had sufficient possession or control over the premises to owe a duty to provide a safe place to work.
Keep in mind that the safe place to work exception is a non-delegable duty. That means that neither an owner nor a general contractor in possession or control of a premises can shift the duty to keep the premises reasonably safe to a subcontractor.
C. Statute or Rule Imposing a Specific Duty
Nebraska courts have long stated that a non-delegable duty may exist where it is conferred by statute or other rule. However, the Gaytan Court clarified that this limited exception will only be found if a statute or regulation specifically confers an obligation on only the employer of the independent contractor and at least implicitly prohibits delegation. Thus, the Gaytan Court declined to find a non-delegable duty imposed by regulation, even where the general contractor had been cited for an OSHA violation, because the Court found the OSHA provision was insufficient to confer a non-delegable duty.
Thus, general contractors who wish to limit their exposure to liability may want to evaluate the statutes and regulations that apply to their construction projects to determine whether any rule could be construed to create a non-delegable duty to employers of independent contractors on a construction project. So far, however, it appears that Nebraska courts have been reluctant to find that particular statutes impose non-delegable duties.
D. Special or Peculiar Risks
The peculiar risk exception is the third and final non-delegable duty. This exception can apply where there are special hazards resulting from the nature of the work done which calls for special precautions. The most common recitation of the duty is as follows:
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
Restatement (Second) of Torts § 416 (1965). This exception only applies to harm caused to “others,” and not workers actually involved in the construction project. Thus, this exception would not apply to personal injury claims by employees of subcontractors against general contractors or owners. Instead, this exception would likely be found where a general contractor failed to take certain precautions for a subcontractor’s dangerous work, and a passerby was injured as a result. Once again, because this is a non-delegable duty, general contractors will want to ensure that special precautions are taken where a subcontractor’s work involves a peculiar risk of physical harm to others.
While it is vital to have strong contract language for each construction project, keep in mind that there are some duties that cannot be contracted away. Take the necessary precautions to determine what duties are owed and ensure those duties are fulfilled to limit potential liability on each project.