Plaintiff is taking the deposition of the General Contractor in a construction negligence case. Counsel asks the GC, “Did you instruct your carpentry subcontractor on how to build the ladder for access to the roof level?” On its face, it appears to be a very benign question – one that the typical GC would be more than happy to answer affirmatively to show that the GC was actively involved. However, the question has a larger purpose and a very significant impact on the litigation.
A GC who entrusts work to an independent contractor will not be liable for the tortious acts or omissions of that independent contractor. An exception to that general rule is captured in comment (c), Section 414 of the Restatement (Second) of Torts and followed in well-established case law in this jurisdiction. Consequently, liability cannot be imposed upon owners and general contractors who do not also control the “operative details” of the subcontractor’s work. It is not enough that a GC has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alteration or deviations. There must be such retention of a right of supervision that the contractor is not free to do the work in his own way.
In other words, the only way that a GC can be held liable for the negligent acts/omissions of an independent contractor in a construction injury case is if the GC also controls the “what, when, where, how and why” of the means by which the contractor goes about performing his job. Direction by the GC must be so involved in this regard that it prevents the contractor from doing the work “in his own way.” So, that seemingly mild and harmless question to the GC about whether he instructed the contractor as to how to build the ladder may turn out to be the pivotal factual predicate that determines liability.