Tort law as it pertains to duties owed by general contractors and construction managers on a construction site has been on a rollercoaster ride for the past several years.  That ride came to an abrupt end when the Connecticut Supreme Court, in Pelletier v. Sordoni / Skanska Construction Co., 2008 Conn. Lexis 134 (2008), vacated a $41 million dollar judgment in favor of the plaintiff and directed the trial court to render judgment for the defendant.  In Pelletier, the Supreme Court clarified that under Connecticut law, a general contractor is not liable for the torts of its independent subcontractors except if the work contracted for:

1.   Is unlawful;

2.   May cause a nuisance;

3.   Is intrinsically dangerous;

4.   Is, in its nature, calculated to cause injury to others.

Alternatively, a general contractor may be liable for the torts of its independent subcontractors if:

5.   The general contractor negligently employs an incompetent or  untrustworthy  subcontractor;

6.   The general contractor reserves in the subcontract general control over  the subcontractor, its employees or the manner of doing the work;

7.   The general contractor in the progress of the work assumes control or interferes with the work; or,

8.   The general contractor is under a legal duty to see that the work is properly performed.

The Supreme Court addressed and clarified exceptions 3 and 6-8 above in its decision.

The plaintiff, Pelletier, was an employee of Berlin Steel, a subcontractor of Sordoni / Skanska Construction Company (“Sordoni”), the general contractor on a private construction project.  Pelletier was severely injured on the project site after the tack weld on a steel beam installed by Berlin Steel and under which Pelletier was working gave way.

After several dispositive motions were filed, one of which resulted in the Supreme Court’s determination that the Connecticut Building Code — which incorporates BOCA National Building Code — imposed a separate and distinct obligation on Sordoni as permit applicant to conduct special inspections of all steel welds to ensure they conformed to the contract and building code specifications, the case was tried to a jury.  The trial judge, over Sordoni’s objection, instructed the jury that Sordoni had the non-delegable duty described above and that a violation of the building code constituted negligence per se.  Not surprisingly, the jury returned a verdict for the plaintiff and Sordoni appealed.

After closely examining the language in the Building Code, the Supreme Court reversed its position and concluded that the Building Code does not impose a nondelegable duty on the permit applicant to conduct special inspections required under the Building Code (in this case for steel fabricated items / welds) so long as the permit applicant provides for such special inspections.  The permit applicant may delegate responsibility through a subcontract for special inspections as Sordoni did in this case.

The Court examined several provisions in the subcontract and concluded that the subcontract unequivocally required Berlin Steel to inspect all welds in accordance with the building and welding codes.  Sordoni had no such legal duty to inspect because the duty was delegated to Berlin Steel.  Sordoni had fulfilled its duty of providing for the special inspections.

The Court also considered several Connecticut statutes cited by the plaintiff that impose penalties for violations of the Building Code and concluded that these statutes “merely require that the plans and specifications for proposed and completed structures substantially conform to the building code and impose no specific duty on the permit applicant, the contractor or any other party to inspect all welds.”

The Court further ruled against the plaintiff on his cross-appeal claiming that the trial court failed to instruct the jury regarding Sordoni’s duty to inspect under principles of common-law negligence, inherently dangerous work and control of the project site.  The Court reached the following conclusions:

Sordoni had no legal duty to the plaintiff under principles of common-law negligence because the plaintiff’s injuries were not foreseeable to an ordinary person in Sordoni’s position.  There was no reason for Sordoni to foresee that its subcontractor Berlin Steel would not fulfill its contractual obligations to inspect all welds;

As a matter of law, the fabrication and inspection of welds is not the kind of work that, when properly done, naturally would expose others to injury unless special preventative measures were taken.  The Court also confirmed that typical construction work is not inherently dangerous; and

The evidence presented, including general safety and procedures manuals, clearly demonstrated that Sordoni did not retain control over the area or instrumentality that caused the plaintiff harm nor did Sordoni continue to exercise control over the fabrication and inspection of welds.  The fabrication and inspection of all steel elements was subcontracted to Berlin Steel.

Thus, in Pelletier, the Supreme Court has made it clear that the critical factors governing liability for negligence on a construction project between a general contractor and subcontractor are determined by reference to the terms of the subcontract governing responsibility for and control of the work as well as the general contractor’s actions regarding control during the course of the project.