Owner Liability in the Context of Construction: Seeking to Circumvent Workers' Compensation in Favor of Tort Liability

Despite the best safety practices implanted con construction jobsites, injuries occasionally occur during construction.  If contractors are properly insured with workers’ compensation coverage, all contractors on the job site should be protected from tort liability via horizontal and vertical workers’ compensation immunity.  See Fla. Stat. § 440.10(1)(e).  Workers’ compensation immunity has been held to be extremely expansive in this context and essentially provides workers’ compensation immunity for all contractors on the jobsite as long as the injured claimant is covered by any contractor’s workers’ compensation policy.  See Amorin v. Gordon, 996 So. 2d 913 (Fla. 4th DCA 2008) (an example of how expansive horizontal and vertical immunity during construction can be).

Claimants, of course, usually prefer tort damages to workers’ compensation damages because tort damages allow for a greater recovery if liability can be proven.  Therefore, creative claimants’ lawyers frequently attempt to circumvent the limitations of workers’ compensation damages.  This raises the issue addressed in this blog:  can a claimant injured on a construction jobsite during the course and scope of employment sue the property owner who hires the contractor?  And if so, in what situations?

The case law is clear that in Florida, “as a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employee in performing their work.”  Morales v. Weil, 44 So. 3d 173, 176 (Fla. 4th DCA 2010) (citing Johnson v. Boca Raton Comty. Hosp., Inc., 985 So. 2d 593, 595 (Fla. 4th DCA 2008)); see also Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446, 447 (Fla. 5th DCA 1999) ("[O]ne who hires an independent contractor is not liable for injuries sustained by that contractor's employees in their work.”).  However, there is an exception to this rule if the owner of the property is “actively participating in the construction to the extent that he directly influences the manner in which the work is performed.”  Morales, 44 So. 3d at 176 (citing Johnson, 985 So. 2d at 595-96).  Importantly, an owner is permitted to retain “various controls over an independent contractor’s work without usurping the shield of liability.”  Id. (citing City of Miami v. Perez, 509 So. 2d 343, 346 (Fla. 3d DCA 1987)). According to Florida law, the amount and degree of control must be “extensive” in order to “pierce the shield of liability” and has been described as the following:

It is not enough that [the owner] 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 alterations and deviations.  Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail.  There must be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way.

Id. at 176-178 (quoting Cecile Resort, Ltd v. Hokanson, 729 So. 2d 446, 448 (Fla. 5th DCA 1999)) (finding owners direction to complete demolition by hand, instead of with a bulldozer, was not enough to subject the owner to liability).

The Florida Supreme Court has described the basis for this principle by noting that an "independent contractor is usually placed in charge of the work site and is responsible for all incidental contingencies and is aware or presumed to be aware of the usual hazards incident to the performance of his contract."  Florida Power & Light Co. v. Price, 170 So. 2d 293, 298 (Fla. 1964).  Further analyzing this principle, Florida’s Third DCA has held that a repairman at a construction site who fell on a piece of pipe lying on the floor could not recover for his injuries because he should have anticipated that construction materials may have been present and a reasonable inspection would have revealed the potential hazards.  Roberts v. Dacra Design Associates, Ltd., 766 So. 2d 1184, 1185 (Fla. 3d DCA 2000) (“When an independent contractor goes to a construction site, he must anticipate that there may be construction materials on the premises, and that working conditions on the site may be less favorable than would be true once the work has been completed.”)

In conclusion, a property owner should not generally be liable to an injured construction worker providing labor for the property owner, but property owners should limit the level of control exerted over a contractor as to the means and methods the contractor uses to accomplish its scope of work.  If the property owner chooses to exhibit such control, it may expose itself to tort liability.

If you have any questions, please do not hesitate to contact Ryan Charlson, Esq., at 954-343-3919 or ryan.charlson@csklegal.com.

Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.

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