Construction Law

Ironworker was injured when he fell from steel beam at construction site. Ironwork subcontractor did not retain control over erection work of ironworker's employer, as it did not have ongoing presence at jobsite, and its officer was not knowledgeable about steel erection. Thus, evidence of subcontractor's control was insufficient, under retained control exception of Section 414 of Restatement of Torts, for Plaintiff and general contractor to survive summary judgment. (R.E. GORDON and GARCIA, concurring.)

Constuction worker died after falling through an unprotected window opening at condominium construction project, after bundle of bricks broke and he lost his balance on scaffold. Estate filed suit for construction negligence against several entities involved in project. Jury verdict against general contractor for $3.286 million, finding Decedent 1% contributorily negligent. Plaintiff was mistaken as to the correct identity of the general contractor, which should have known it was not named as a Defendant in original complaint only due to misunderstanding of which company was the general contractor. Thus, relation back doctrine applies, and amended complaint naming actual general contractor was timely filed. Contract shows that parties intended general contractor to be responsible for general right of control, including responsibility for site safety. Thus, evidence was sufficient to find Defendant vicariously liable. (SALONE and STERBA, concurring.)

(Court opinion modified upon denial of rehearing 5/20/11.) Plaintiff sued construction manager corporation for injuries he suffered at construction worksite. As Plaintiff does not allege that construction manager actually selected the contractors or subcontractors, manager cannot be said to have entrusted them with the work, absent which Section 414 of Restatement (Second) of Torts is inapplicable. Whether construction manager exercised control at construction site is irrelevant, as control alone does not trigger liability under Section 414. Manager is not liable under Section 434(a) of Restatement, as no evidence that it possessed the land at issue. (J. GORDON and HOWSE, concurring.)