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Employee Injured In Trench Collapse Loses Case Vs. Contractor

August 1, 2005

A construction worker injured in a worksite accident had his case thrown out by an appeals court in Downs v. Steel and Craft Builders Inc. (2005 WL 1492077, Ill. App. Ct. 2d Dist.).

Richard Downs, an employee of P&M Water and Sewer, was severely injured when a trench collapsed on a construction site, and he eventually filed a negligence claim against the general contractor, Steel and Craft Builders Inc.

One issue the Illinois Appellate Court faced in the case of a collapsed trench, presenting a question of first impression under Illinois law, was whether federal safety statutes imposed a non-delegable duty on a general contractor. Affirming summary judgment for the defendant, the Appellate Court declined to follow precedent from New Jersey, or the dissent from a Pennsylvania Supreme Court case.

Downs argued that Steel and Craft was liable for breaching a non-delegable duty to comply with two federal safety statutes, the Occupational Health and Safety Act and the Construction Safety Act. The contract between the general contractor, Steel and Craft, and Down's employer, P&M Water and Sewer, obligated the subcontractor to comply with the OSHA and CSA.

The court began its opinion by noting that "plaintiff acknowledges that the contract obligates only P&M, not defendant, to comply with the OSHA and the CSA. Nevertheless, plaintiff argues that defendant owed him a duty under the contract by virtue of adopting those regulations, because a subcontractor cannot comply with them unless the general contractor shares certain responsibilities and performs certain obligations."

In addressing the plaintiff's OSHA argument, the court said "The OSHA explicitly declares that it shall not be construed to supersede, to enlarge, to diminish or to affect in any manner 'the common-law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries ... of employees arising out of, or in the course of, employment.'"

The court would not follow New Jersey cases imposing a non-delegable duty on general contractors to maintain safe job sites under OSHA "because to do so would affect the rights and the liabilities of defendant under Illinois law with respect to plaintiff's injuries arising out of, or in the course of, employment."

The Construction Safety Act, which predates the OSHA, the court explained, "provides occupational safety and health protections only to employees who work on federal, federally financed or federally assisted construction projects."

In rejecting the plaintiff's arguments, the court said "Plaintiff relies upon this section for his proposition that defendant has a nondelegable duty under the CSA. However, the CSA, like the OSHA, creates only a government program to enforce compliance and does not deal with the assignment of liability among contractors. Therefore, a nondelegable duty does not arise.

Answering the question of first impression, the Illinois Appellate Court concluded that Steel and Craft, having delegated its duty to comply with federal safety statutes, was not liable for P&M's alleged violations of these provisions.