Yesterday, the Second District Court of Appeal reversed judgment in favor of a general contractor, finding that the general contractor was liable for an electrical subcontractors injuries suffered when he fell into an open drain on a second floor stair landing. The case illustrates the importance of job site safety and the specific items a general contractor must take into account when keeping a job site safe.
In Pratus v. Marzucco’s Construction & Coatings, Inc., an employee of an electrical subcontractor sued a general contractor for damages after the employee was injured when he fell into an uncovered drain on the construction site. The drain was outside a door on a second floor landing of parking garage that was being built by the general contractor. The employee stepped fell into the drain after opening a door to exit the parking garage and go upstairs to the third floor. At the time of the injury, the garage lighting was dim, and when the employee stepped outside he was blinded by the sunlight and dust from concrete grinding at the site, causing him to step into the open drain.
While the general contractor had previously had the door marked with caution tape, that tape was not in place at the time of the accident. Further, there were approximately 100 drains all around the jobsite, and they were intermittently covered and uncovered depending on the phase of work being completed. The employee sued the general contractor negligence, arguing that the general contractor had a duty to keep the premises reasonable safe and that it had failed to do so by leaving the drain uncovered and failing to warn that it was a dangerous condition. In response, the general contractor argued that the drain was an open and obvious condition on the job site and that the employee had been there many times and was aware of the drain. The trial court agreed with this argument and granted summary judgment in favor of the general contractor.
On appeal the Second District Court of Appeal reversed, finding that issues of fact remained that needed to be resolved before judgment could be entered. The District Court began be noting that the general contractor owed two duties to the subcontractor’s employee:
(1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and
(2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered through the exercise of reasonable care
While there is an exception to these duties for dangerous conditions that are known or obvious to the injured party, the test in applying that exception is not whether the condition is open and obvious, but whether the dangerousness of it is. Further, the general contractor was still not excused from maintaining the premises in a reasonably safe condition if it could have anticipated the harm to the employee.
In reaching the conclusion to reverse the trial court, the District Court found that there were several fact issues requiring resolution, including (1) whether other routes across the construction site would have been similarly dangerous, (2) whether the general contractor should have anticipated that the other construction activities on the site (e.g. the concrete grinding) would have made the open drain more dangerous, and (3) whether the general contractor should have taken other steps to prevent the injury.
This case is a great example of how important job site safety is and how critical it is that safety stay top of mind during a construction project. General contractors should make sure that their employees and all subcontractors and their employees know about dangerous conditions on job sites and that they provide warnings, markings, and safe pathways. While some parts of construction are inherently dangerous, that is not an excuse for failing to take reasonable safety measures.