A premises owner and a contractor enter into a construction contract, and a third party is injured on the premises of the owner. The fundamental question at issue here is under what circumstances does a duty of care arise between the contractor and the third party?
A federal case was decided in
A gas/service station was remodeling and moving its Subway location. An employee of the service station sued a contractor for “injuries sustained when, during a remodeling of her employer's premises, a door, temporarily removed and stored outside of the construction zone, fell on her because it was stored upright and where, if placed there at all, it should have been laid on its side at an angle.”
The decision walks the reader through an interesting history of duty, contractual obligations, misfeasance and torts. Good stuff, believe you me.
But the best way to explain the court’s thinking in this case was the story it told of an older case. A contract for snow removal services made explicit that the snow removal contractor would "not be responsible for any damage or injury caused by slipping or falling on any pavement surface." But in the course of actually performing the contract the snow plow contractor placed snow "on a portion of the premises when it knew, or should have known or anticipated, that the snow would melt and freeze into ice on the abutting sidewalk, steps, and walkway, thus posing a dangerous and hazardous condition to individuals who traverse those areas." While the snow removal contractor lacked a pre-existing duty to the person who slipped, in contract or otherwise, a duty arose anyway out of the contractor’s acts because it placed plowed snow from the parking lot on an otherwise clean sidewalk. The snow removal contractor was responsible for creating an unsafe condition where one previously did not exist.
In this Subway case, the contractor removed the door and placed it in an area that it knew was used by the store’s employees. The contractor created the hazard when persons working for it leaned and left the door unsecured in an area outside the construction zone. If one having assumed to act, does so negligently, then liability exists as to a third party for failure of the contractor to exercise care and skill in the performance itself.
Today’s shocking and profound legal insight: if you, as a construction contractor, do something, you have a duty to do it in a safe way.
The
Contract to Decision: 4 years 11 months
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