Contractors risk tremendous potential exposure for liability for personal injuries sustained by employees. A worker injured on a construction site may maintain a negligence action against contractors on the site under three separate theories of tort duty:
- a general duty to ensure workplace safety;
- a premises liability duty to maintain property in a reasonably safe condition; and
- a contractor’s duty to exercise reasonable care in performing work to avoid foreseeable harm.
Indiana case law formerly held that prime contractors had a statutory duty to provide workplace safety for all employees on the site based on administrative rules enacted under Indiana’s Labor and Industrial Safety Act. However, changes in the administrative code and recent cases have eroded the prime contractor’s statutory duty to provide general workplace safety. Moreover, independent contractors may gratuitously assume a duty for general workplace safety through their conduct on the site. In construction cases, the provisions of the contracts are definitive as to the obligations assumed by contractors. The standard owner/contractor agreement often used by parties provides that general contractors are responsible for initiating, maintaining, and supervising all safety precautions and programs.
Indiana law specifically recognizes that a party can contractually agree to liability based on compliance with construction regulations. Moreover, an injured worker might qualify as a third-party beneficiary of the contract. An independent contractor who occupies or exerts control over land assumes the landowner’s common-law duty to maintain the premises in a reasonably safe condition. Only a party who exerts control over the premises owes a duty to persons coming on the premises. Thus, workers injured from a defect in the premises may sue contractors under a premises liability duty.