602-322-4000

Summary. The Court of Appeals recently affirmed a trial court’s summary judgment to a general contractor in a negligence and premises liability suit brought by an employee of a painting subcontractor. The Court recognized the limited duty of general contractors under Arizona law to maintain a safe worksite for subcontractors, and it refused to expand that duty in situations where the subcontract delegated safety to the subcontractor and where the employee was aware of the danger and disregarded it.

Background Facts. Plaintiff William Black filed a lawsuit against landowner Sensing Enterprises, Inc. and general contractor W.J. Sullivan after he fell through a skylight while repainting a warehouse. Black asserted negligence claims against both Sensing and W.J. Sullivan based on a theory that both breached their duties to maintain a safe worksite and warn subcontractors’ employees of safety hazards. After some discovery, the trial court granted summary judgment to both defendants, holding that neither defendant owed a duty of care to Black (or that the scope of any duty was too nominal) based on the fact that Black’s employer (Ghaster) had retained control of the worksite and was responsible for its employees’ safety. The trial court relied both on the subcontract language, which placed responsibility for safety on Ghaster, and on the facts of the case, which showed that Ghaster had complete control over the methods and manner of its work and the tools it used. Black appealed the trial court’s decisions.

Court of Appeals’ Ruling. The Arizona Court of Appeals Division One agreed and affirmed the trial court’s decisions, relying in large part on the Arizona Supreme Court’s holdings in Lewis v. N.J. Riebe Enter., Inc., 170 Ariz. 384 (1992) and Lee v. M & H Enter., Inc., 237 Ariz. 172 (2015). With respect to Appellee W.J. Sullivan, the Court of Appeals, citing Lewis, recognized that the duty of a general contractor to the employees of a subcontractor is limited and that it “extends ‘no further than the control retained’ by the possessor of land or the general contractor.” The Court also agreed that while the extent of a general contractor’s retained control is sometimes a question of fact for a jury, it is also appropriately decided on summary judgment when the facts are such that a jury could only come to one conclusion under applicable law. In this case, the Court considered the following facts in support of its conclusion that W.J. Sullivan did not retain sufficient control over Ghaster’s work or the worksite to impose a duty of care to Black: (1) the subcontract provided that Ghaster, not W.J. Sullivan, would be responsible for maintaining a “clean, safe work area”; and (2) undisputed testimony from both W.J. Sullivan’s and Ghaster’s principals confirmed that W.J. Sullivan did not supervise Ghaster’s work or direct Ghaster’s employees in any way. The Court further held that a general contractor’s tacit understanding that it assumed overall responsibility for project safety does not constitute evidence of actual control sufficient to confer a duty on a general contractor.

The Court additionally held that the alleged hazardous condition (the skylights) was open and obvious, and therefore, neither defendant had a duty to warn against such hazards. Specifically, the Court correctly recognized that Black had admitted during his deposition that he was aware of “a lot” of skylights on the warehouse ceiling and that they appeared old, sun damaged, and brittle, in that Black did not believe the skylights could bear his weight. Thus, the Court agreed with the trial court that any danger created by the skylights was known and obvious to Black and that the defendants could properly expect Black to recognize the danger of falling through the skylights.

Finally, although the Court of Appeals correctly held that Black’s argument regarding alleged violation of OSHA regulations by defendants was waived on appeal, it also clarified that while OSHA regulations may help establish a defendant’s compliance with a duty of care, they are not admissible to create a duty of care or define its scope.

Richard Mear’s litigation practice is driven by his desire to obtain effective and efficient results for his clients. His common sense approach is grounded in a complete immersion in his clients’ businesses, goals and products. Richard’s practice includes defending corporations in premises liability matters, product liability matters (including medical devices), and toxic tort matters involving asbestos and benzene exposure. He also  has significant experience in cases involving transportation/trucking claims, construction defect claims, professional liability, medical malpractice, and in commercial business disputes involving claims of officer and director liability. Mr. Mear has extensive experience in all aspects of litigation including trial, mediation and arbitration. He has first-chaired and second-chaired several jury and bench trials to defense verdicts. Mr. Mear first-chaired a month-long products liability trial in Federal Court and obtained a defense verdict for his client, despite the plaintiffs’ initial demand for $30 million and $12 million pre-trial demand. In February of 2017, Mr. Mear concluded a two-week jury trial to defense verdict, which included an award of Rule 68 sanctions. Mr. Mear can be reached at 602-322-4143 and rmear@cavanaghlaw.com.

 

Karen Stafford’s practice is primarily focused on insurance coverage, insurance bad faith litigation, general commercial litigation and appellate law. Ms. Stafford advises clients on a wide range of complex insurance issues, including first party property claims, third party liability claims, and bad faith actions. She has experience in all aspects of civil litigation and trial preparation. Ms. Stafford is a graduate of the Sandra Day O’Connor College of Law at Arizona State University where she served as both a staff writer and research editor of the Arizona State University Law Journal and participated in the leadership of various pro bono organizations. She has also served as an adjunct professor at the Sandra Day O’Connor College of Law. Ms. Stafford can be reached at 602-322-4049 and kstafford@cavanaghlaw.com.

 

 

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