Construction Manager Liable for Injury in Common Work Area
Titles don’t really matter.
The Michigan Court of Appeals ruled as much when it held that a construction manager was liable for injury to a worker that occurred in a common work area. In Latham v Barton Malow Co. (February 2014), a subcontractor’s carpenter was injured in a fall at a construction site. The worker was not using any fall protection gear. The injured worker sued Barton Malow claiming that Baron Malow was liable under the “common work area doctrine” because Barton Malow failed to take reasonable steps within its authority to guard against readily observable and avoidable dangers (working without fall protection) that created a high degree of risk to a significant number of workers in a common work area. Barton Malow disputed the claim, arguing that it was merely a “construction manager,” not a general contractor and therefore not liable because it lacked sufficient control over the subcontractor. Relying upon the language in its contract with the Owner, Barton Malow claimed that it was only responsible for coordination, not control of the subcontractors, as the subcontractors had responsibility for their own means and methods and the safety of their workers. Barton Malow asserted that its responsibility for coordination of safety programs did not extend to direct control over the acts or omissions of the subcontractors.
The court disagreed with Barton Malow and sided with the plaintiff ruling that while “there can be differences between a construction manager and a general contractor, that does not translate to mean that a construction manager is never liable under the common work area doctrine.” The Court concluded that Barton Malow’s title as a construction manager was “irrelevant for purposes of the common work area doctrine” particularly where there was evidence that Barton Malow’s role on site was consistent with having supervisory control and where other language in the owner/construction manager contract conferred general supervisory authority upon Barton Malow. Lesson learned – even a carefully crafted contract will not shield a Construction Manager from liability under the “common work area doctrine” where the construction manager actually exercises authority over safety on a job site.