According to a recent ruling by the Nebraska Supreme Court, general contractors that exercise control over the worksite can be sued by a subcontractor’s injured employee.

In the case of Gaytan v. Wal-Mart, a roofing subcontractor’s employee died after falling through the roof of a under-construction Wal-Mart. The deceased employee’s estate sued Wal-Mart and Gram Construction, the general contractor, alleging that they were negligent in maintaining a safe worksite.

The court initially acknowledged that an owner does not typically owe a subcontractor’s employee a duty because the owner usually has no control over the manner in which the work done by the contractor. This general rule, however, has exceptions, such as where the owner retains control over the contractor’s work. But, for the exception to apply, the owner must have supervised the work that caused the injury, have knowledge of the danger that caused the injury, and have had the opportunity to prevent the injury.

Here, the deceased employee’s estate argued that Wal-Mart controlled the general contractor’s work. The court found otherwise, relying on the contract which stated that Wal-Mart had no right to exercise control over the general contractor, its employee, or  its agents, and the lack of evidence that Wal-Mart actually exercised any control over the construction site.

Additionally, the court found it significant that OSHA had penalized the general contractor, noting that even though the general contractor’s employees were not exposed to the roofing hazard, the general contractor had explicit control for the overall safety and health of the worksite. 

The court found that the general contractor had a duty to monitor and control the safety of the worksite and had actually done so, even though its employees did not access the roof. Thus, the general contractor could be found liable for the injuries suffered by the roofing subcontractor’s employee.