Minnesota Court of Appeals Reverses Seven-figure Award to Subcontractor on Construction Site.

The Minnesota Court of Appeals has reversed a $5 million award in favor of an independent contractor who performed painting work at a commercial concrete production facility. In Smith v. Wells Concrete Products Co., A14-0644 (Minn. Ct. App. Feb. 2, 2015) (unpublished), Susanna Smith fell while painting the facility. Smith was working 10-12 feet off the ground, and she had constructed a make-shift bridge across the top of a corridor which connected plywood “decks” for the first floor conference room and office. Smith did not believe the scissor lift supplied by the owner/general contractor would allow access to the narrow part of the corridor. The “decks” were constructed so workers could stand on them and work on the walls and ceilings above the offices. Smith did not put up any safety railings or request safety equipment for the owner.

Smith fell while walking towards the opening above the corridor and sustained serious injuries. Medical specials alone approached $400,000.

Smith sued Wells, the owner/contractor, alleging that railings on the deck areas would have allowed her to paint that part of the facility without the necessity of the makeshift bridge. Further, Smith alleged Wells failed to provide a temporary railing or other fall protection as required by OSHA regulations. The jury concluded Wells and Smith were both negligent, apportioning 60-40 comparative fault against Wells. The trial court denied Wells’ motions for directed verdict, judgment as a matter of law and motion for a new trial.

The court of appeals reversed, holding that Wells did not owe a legal duty to an independent contractor such as Smith, since it did not retain any control over her work on the project. A general right to order work stopped and resumed and to inspect is insufficient. Because Wells did not control or supervise Smith, and hired her for her expertise and experience, there was no legal duty owed Smith.

The court of appeals also found Wells’ premises liability theory unavailing, as a possessor of land is not liable to invitees for harm caused by known or obvious dangers. The exception to that rule, for harm the possessor should nonetheless anticipate despite such obviousness, did not apply as Smith herself created the danger by erected the makeshift bridge. The court also concluded that Smith’s claim was barred by the doctrine of primary assumption of the risk, as she knowingly and voluntarily encountered the risk of falling.

The opinion included a dissent by Judge Cleary, who wrote that the fact Wells built safety railings for other subcontractors in other areas of the project was sufficient for the trial court to conclude the landowner should have anticipated harm to Smith despite the known and obvious risks. Further, nothing Smith did was sufficient to relieve the landowner of a duty of care and invoke the doctrine of primary assumption of the risk.

If you have any questions about this or any other matter, please contact Bob Kuderer, Matt Johnson or Tom Brock.