Victory for General Contractors
After a 12-year court battle, the Harris Construction Company, Inc., case finally comes to an end. (State of California Occupational Safety and Health Appeals Board, Docket No. 03-R2D5-3914.) Harris, a general contractor, was cited as the controlling employer after a subcontractor employee was injured when a piece of pressurized piping attached to a valve broke off and smashed his leg against a concrete block. According to Cal-OSHA, Harris was in a position to abate the violation per the “multiemployer worksite standard.” For the bottom line, scroll to the end of this article.
After an administrative law judge (“ALJ”) upheld the violation, the Appeals Board took the case under reconsideration and reversed the ALJ. A union got involved, and the decision was again reversed – the trial court holding that DOSH (Division of Occupational Safety and Health) does not have the burden of
proving that a controlling employer was not in a position to abate dangerous conditions as part of its case. The Appeals Board, under remand, held that Harris acted with due diligence and was not liable for the general violation because it had appropriately hired, supervised, monitored and followed up on the subcontractor’s work. The hazard was unknown and an “inadvertent creation.”
The Bottom Line: Cal-OSHA was hoping to win this case so that it could cite general contractors for almost everything. Going forward, it is expected that general contractors will not be cited as the “controlling employer” as often.
About the Author: Christina Denning
Christina Rimkus Denning, who has been in practice since 2000, joined Higgs Fletcher & Mack as a partner in 2011 after maintaining a practice in construction law, business litigation and personal injury. Ms. Denning recognizes that litigation can be expensive, so she proactively counsels businesses and individuals in carefully drafting contracts and other legal documents with the goal of avoiding litigation. If necessary, she litigates a wide array of disputes from the claim stage through arbitration or trial and post-judgment collection efforts. Click Here to View Her Bio
This article is provided for information only and is not intended for use as legal advice.
This article was published in the National Association of Women in Construction newsletter: The Hard Hat, March, 2015.