Canterbury, Stuber, Elder, Gooch Surratt · Canterbury, Stuber, Elder, Gooch Surratt A Professional...

Canterbury,Stuber,Elder,GoochSurratt

A Professional Corporation Email: [email protected]

Attorneys at Law website:www.canterburylaw.com

Occidental Tower5005 LBJ Freeway. Suite 1000

Dallas, Texas 75244

Telephone: (972) 239-7493

Facsimile: (972) 490-7739

Paul LagerstedtNational Sales ManagerSuper Anchor Safety8522-216th Street SEWoodinville, WA 98072-8009

Re: Super Anchor Safety User Liability Questions

Dear Paul:

American Roof, Inc. DBA Super Anchor SafetyTM

has requested our opinion on

various liability questions related to the use of Super Anchor Safety'sTM

("Company's")

temporary and permanent fall protection anchors. This letter constitutes our opinion. It is

based on our legal research and study of the Company's products, including a visit to the

Company's offices, manufacturing, and assembling facilities in Woodinville,

Washington.

THEPRODUCTS

The Company's products include permanent and temporary fall protection

anchorage, the great majority of which are installed on the top chords of trusses, rafters, i-

joists, and beams as temporary protection for workers during construction or are flashed

into the roofing and left in place as permanent anchors for the protection of future

workers performing inspection, maintenance, repair, etc. following completion of

construction. The basic anchor is a patented device (U.S. Patent No. 5,370,202),

manufactured of 304 stainless steel. The anchors are tested by the Company using its own

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Canterbury, Stuber, Elder, Gooch Surratt

testing facilities and outside testing firms. The basic anchor has tested in excess of 7,000

pounds, but the Company represents the anchors as structurally tested to only withstand

an average force of 5,000 pounds as required by OSHA standard 1926:502. The

Company maintains a vigorous quality control and testing policy, and issues installation

instruction manuals with each order. Separate models are made for tile roofs. Custom

sized anchors and anchors for structural steel are made and sold only on a specially

manufactured basis for specific projects. Also, the Company's standard products include

vertical wall anchors installed on the top plate, secured with bolts through a rafter. '

Although used on some commercial projects, the majority of the Company's sales are for

use in home and multi-family projects in connection with wood framing.

Since 1994 the Company has sold approximately 600,000 Super Anchors TM

without a single reported incident of one of its anchors failing to hold a falling or slipping

worker, or otherwise failing to serve its intended purpose of protecting roofers (and other

construction trades) or Owners and their employees using the products following

construction, including home owners.

The Company's permanent and temporary anchors comply with OSHA standards

(29 C.F.R. 1926.502(d)(15)) as well as the regulations of various state OSHA statutes.

ISSUESAND SCOPE OF OPINION

Although the Company's anchors have been tested and proven on construction

sites and finished buildings to prevent falls, some Owners, Contractors, and even

Subcontractors have expressed concerns to you of potential liability if a worker ever did

' The Company also makes and sells various fall arrestor safety lines, harnesses, etc. These products havenot been the subject of customers' liability questions; therefore, they are not discussed in this opinion letter.(Descriptions of these products are found on the Company's website, www.superanchor.com, where theCompany's installation guidelines may be found in English and Spanish.)

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fall while tied off to one of the Company's anchors. Although the Company anchors are

designed to last for the life of the roofing system, it does not guarantee the structure

(normally wood trusses) to which an anchor is attached or that it is attached in

accordance with the Company's instructions. The question you have been asked is, "If

someone ever fell while tied off to a Super Anchor TM , would I be liable?" This question,

and other various "what if' scenarios, has caused some Owners, developers, design

professionals, and General Contractors to have legal concerns over using the Company's

anchors. In some cases safety directors for potential users have advised you that their

legal or risk advisors have counseled against installing safety anchors for fear of legal

exposure, although they realize the benefits of providing roof anchors to protect workers

who must get on roofs. Other customers have advised you that they install Super Anchors

TM temporarily for construction, but cut them off to prevent future use following

construction.

Although the Company has no problem in guaranteeing its products and certifying

their structural integrity, based on its ongoing testing and quality control programs, it

does not guarantee or warrant the structure to which the products are attached or that they

have been installed properly because it does not perform or inspect the installation of its

safety anchors. 2

This opinion will address legal exposure for various parties to construction

projects. Some Owners have required anchors as fulfillment of a moral duty to protect

workers from death or serious harm. Although I agree with that premise, this opinion

will not cover moral duties - only legal ones and potential legal risks of Owners, design

2The Company is currently developing plans for providing certified installers and inspections for an

additional fee, but that plan is not currently in place.



professionals, Contractors, and Subcontractors 3 . This opinion letter does not purport to

cover applicable law of all states, and there are variations; however, the legal principles

discussed are generally applicable in all states, particularly those adopting the

Restatement of Torts. 4 Particular emphasis is placed on Texas and Washington, where the

Company has a large sales volume of its product. Important decisions of California and

some other states where the Company has substantial sales are also included. The

opinions of this document on liability questions are based on current law, without

discussion of the historical development of Tort law as applied to potential construction

site accidents. 5 The opinions of this letter are for your use in discussing liability

questions. This opinion letter is not intended as a substitute for legal advice on specific

situations and does not substitute legal advice to your customers on specific situations.

OWNERS

An Owner may require permanent safety anchors on any project as part of basic

design with minimal legal risk. Owners may want permanent anchors for the safety and

convenience of their own employees or employees of service firms or Contractors who

may have future need to be on roofs for inspection, repair, maintenance, and warranty

work. Housing developers may want permanent anchors as a benefit to purchasers.

To help identify and distinguish application of legal principles we capitalize the terms "Owner","Contractor", or "General Contractor" and "Subcontractor" throughout this opinion letter. We alsocapitalize the term "Architect".

The Restatement of the Law is a compilation of common law legal principles derived from cases of manystates. The Restatement of TORTS was first published in 1934 and a second edition was published in 1965.This edition, Restatement (Second) of TORTS has been approved by many courts as controlling legalauthority on many of the issues and questions concerning construction site accidents. It will be referred toas "Restatement 2 "d" in this opinion. The Restatement is published by the American Law Institute.5 For a well written discussion of the historical development of Tort law, and a research source for thisopinion letter, see: Schneier, Mark M., Construction Accident Law, A Comprehensive Guide to LegalLiability and Insurance Claims, Joint Publication of Forum on the Construction Industry and Tort andInsurance Practice Section of American Bar Association (1999), referred to herein after as ConstructionAccident Law.



Owners would not be interfering in the means and methods of their General

Contractors and their Subcontractors by requiring the installation of safety anchors as part

of the basic building design. Of course Contractors installing or subcontracting the

installation of the anchors would have the contractual duty to the Owner and statutory

duties (OSHA and state safety laws) to their employees and common law duties to others

who may be reasonably anticipated to use the anchors, to install them correctly. From an

Owner's perspective there is no significant legal risk in requiring permanent anchors. Of

course, if an Owner knew that an anchor was improperly installed, a duty to correct or

warn would arise. Absent such knowledge, the safety duties during construction would

rest with the General Contractor. If an Owner specified temporary anchors and their

placement with related details, an argument of the Owner's interference or control over

the means and methods of an independent Contractor's work could be made in the event

of an injury related to the anchors attachments, but no such arguments should prevail on

an Owner's requiring permanent anchors.

If workers used the anchors during construction operations, the Owner would not

be responsible for any injuries, any more than the failure of any other portion of the

project. Also the General Contractor's indemnity and insurance obligations would

protect the Owner form such exposure.

The prevailing case law, much of which is based on Section 409 of Restatement

2"d , is that an Owner is not liable for construction accidents because the Contractor is the

temporary possessor of the land and the work is being performed by an independent

Contractor. If an Owner turns over complete control and possession of premises to a

General Contractor for construction the Owner has no liability for construction accidents



unless they arise from known defects 6 . For example, in Privette v. Superior Court, 854

P.2d 721 (Calif 1993) the California Supreme Court abandoned contrary precedent form

earlier cases and held that an Owner would not be subjected to vicarious liability under

the "inherently dangerous work" 7 exception to the general rule of non-liability of one

who hires an independent contractor. The "independent contractor" rule will protect

Owners, subject to exceptions based on "retained control", but that doctrine is weakening

as to Owners 8 and other exceptions discussed herein, such as a "statutory obligation"

exception like New York, which imposes liability on an Owner even though it did not

supervise the work or retain a right of control under New York's Labor Code, §240 and

241, covering scaffolding. 9 This law imposes an absolute duty on Owners and

Contractors.

6 A few cases adopting this premise of non-liability for construction owners injuries during constructionare: California: Smith v AC&S, Cal.Rptr.2d 457 (Cal.App. 4 th, 1994); Georgia: Kraft Gen. Foods v.Maxwell, 464 S.E>2 "d 639 (Ga.App. 1995); Louisiana: Permit v. Bernard Mech. Contractors, 669 S.0.2d599 (La.Ct.App. 1996); Oregon: B. King Construction v. NAT. CSL. On Comp. Ins., 852 P2d 927 (1993);Texas: Koch Ref Co. v. Chapa, 11S.W.3d 153 (Tex.19999); and Washington: Smith v. Mexers, 950 P.2d1018 (1988).For many more citations to cases of many states, see Construction Accident Law, Ch.3,pp.142-143, at fn. 337 and S. Stein, Construction Law, Vol. 2, §10.04[l] at En. 16, pp.10-56, Matt. Bender2002.7 The "inherently dangerous work" exception is based on Section 416, Restatement 2nd. It could be appliedto roofing operations. It is still applied in a few states. See fn. 27.8 The "retained control" doctrine is usually invoked against General Contractors. Decisions in Californiafollowing Privette have protected Owners as innocent principles, but have been less favorable to GeneralContractors under various exceptions to the independent contractor rule, including retained control, andviolation of a non delegable duty imposed by statute.9 Although these provisions primarily cover scaffolding, they are broad enough to cover falls. Section 240of the New York Labor Code provides: "All contractors and owners and their agents...shall furnish orerect, or cause to be furnished or erected for the performance of such labor, scaffoldings, hoists, stays,ladders, slings, hangers, blocks, pulleys, braces, iron, ropes, and other devices which shall be soconstructed, placed and operated as to give proper protection to a person so employed." For cases onactivities covered by the New York Labor Code see: Stein, Construction Law, Vol. 2, § 10.03 at fn. 37,pp.10-41.



There is an exception if the Owner retains control of the means and methods of

construction. 10 However, many cases have held that the requiring of work being

performed in accordance with federal or state safety requirements does not create a duty

of the Owner for safety during construction. Tlus principle was discussed by the Texas

Supreme Court in the case of Dow Chemical v. Bright, 89 S.W.3d 602 (Tex. 2003). In

that case, Bright, an employee of the General Contractor, was injured while working on

Dow's property. Dow, by contract, required the General Contractor to "comply with all

safety rules and regulations of Dow...and all applicable provisions of the federal, state

and municipal safety laws and building codes to prevent accidents or injuries to persons

or damage to property..." The contract also contained the following provision which the

court held did not impose a duty upon the Owner because it did not retain the right to

control the means, methods, or details of the independent Contractor's work:

30.01. Responsibilities-CONTRACTOR shall be an independent Contractor underthis Contract and shall assume all of the rights, obligations, and liabilities,applicable to it as such independent Contractor hereunder and any provisions inthis Contract which may appear to give [OWNER] the right to directCONTRACTOR as to details of doing the work herein covered or to exercise ameasure of control over the work shall be deemed to mean that CONTRACTORshall follow the desires of [OWNER] in the results of the work only.

Bright argued that these provisions gave Dow a right of control, but that argument

was rejected by the Texas Supreme Court stating:

A premises Owner who actually exercises control over the Contractor's work maybe subject to direct liability for negligence. Koch, 11 S.W.3d at 155. However,"merely exercising or retaining a general right to recommend a safe manner forthe independent Contractor's employees to perform their work is not enough tosubject a premises Owner to liability." Id. (citing RESTATEMENT (SECOND)

10 In Texas, as well as many of the states, the question of whether or not an owner or Contractor haveretained a "right of control", which could form the basis of liability, is a question of law for the courtinstead of a question of fact for a jury. Lee Lewis Construction, Inc. v. Harrison, 70 S.W. 3d 778,783 (Tex.2001).

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OF TORTS § 414 cmt. c (1965)). In addition, "the control must relate to theinjury the negligence causes." Furthermore, if a premises Owner exercises controlby requiring a Subcontractor to comply with its safety regulations, the premisesOwner owes the Subcontractor's employees a narrow duty of care that its safetyrequirements and procedures do not unreasonably increase the probability andseverity of injury. Hoechst-Celanese, 967 S.W.2d at 358; Traylor Bros., Inc. v.

_Garcia 49 S.W. 3d 43Q, 435 (Tex.App.-San Antonio 2001,pe__t. denied).

89 S.W.3d at 607

In response to Bright's contention that Dow should have stopped the unsafe

practices that caused his injury, the court relying on its earlier decision in Hoecht-

Celanese v. Mendez, 967 S.W. 2d 254 (Tex.1998) [holding the right to stop work in and

of itself does not constitute sufficient control to imposed a duty of care on a construction

Owner] stated:

However, as the Restatement (Second) of Torts states, it is not enough that thepremises Owner has merely a general right to order the work stopped.RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965). To hold otherwisewould deter General Contractors from setting even minimal safety standards. SeeHoechst-Celanese, 967 S.W.2d at 358. As we stated in Hoechst-Celanese," `[w]e do to believe that a General Contractor or an employer is required to standidly by while another is injured or killed in order to avoid liability. Nor do webelieve that the liability rules contemplate putting those who employ independentContractors in that position.' Id. (quoting Welch v. McDougal, 876 S.W.2d 218,224 (Tex.App.-Amarillo 1994, writ denied)).

89 S.W.3d at 607, 608

Cases of other states are generally in accord with the Texas decisions on right of

control or "retained control" theory of Owner liability. The theory is stated in Section 414

of the Restatement (2nd) of Torts as:

One who entrusts work to an independent Contractor, but who retains control ofany part of the work, is subject to liability for physical harm to others for whosesafety the employer owes a duty to exercise reasonable care, which is caused byhis failure to exercise his control with reasonable care.



Although case law varies on the amount of control that is required to impose

liability, the great majority of those cases involve the control of a General Contractor

over Subcontractors '' . Also, comment b to Section 414 of Restatement2nd

provides that

the retained_ control is "usually, though_ pot exclusively"applied to General Contractors

instead of Owners.

The general rule of law is simply that an Owner or occupier of land does not owe

any duty to ensure that an independent Contractor performs its work in a safe manner. To

make the Owner liable it must retain control over the methods of performance and then

fail to exercise reasonable care in the details that cause an injury. The retention of control

must be more than the right to start, stop or inspect progress of the work of an

independent Contractor, and it must also "relate to the activity that actually caused the

injury". Coastal Marine Service of Texas v. Lawrence, 988 S.W. 223, 226 (Tex. 1999).

An Owner is further shielded from exposure for job site injuries by its contract

with the General Contractor, which usually requires indemnification, contractual liability

insurance, and often additional insured status under the General Contractor's CGL policy.

Since the General Contractor or its Subcontractors actually install permanent roof

anchors, any liability for improper installation would lie with them - not the Owner,

unless the Owner had actual knowledge of an improperly installed or defective safety

anchor.

' 1 See: Cindy L. Becker, "Retention of Control and Resulting liability in Texas Construction Law", 16 t1i

Annual Construction Law Conference of State Bar of Texas (March 2003) and Joe F. Canterbury, Jr.,Texas Construction Law Manual, 2d ed. S/McGraw-Hill 1992, West Group 2004 Supp. @ §11.04 and§11.04A for a discussion of Texas law of "retained control" cases.



Questions have also been raised on the obligations and liabilities of an Owner

who sells houses with permanent anchors. The Owner's obligations for the integrity of

permanent anchors are the same as any other component of the house. Although no

longer the _"owner"_after a sale, the_Owner must exercise reasonable care and correct or

warn of any known defects. Of course, the Owner has rights against the GC and its

installing Subcontractor depending on contractual terms. Also, an Owner may have direct

rights against these parties' insurance carriers if it is named as an additional insured under

their CGL policies.

Finally, you have been asked about any potential liability of a building owner to

third parties who may use safety anchors following construction. Their liability is based

on a common law duty to warn or deny use if they have knowledge, or by the use of

reasonable diligence should have knowledge, of an improperly attached anchor. This type

of liability is set forth in Section 343 of Restatement 2" d as follows:

A possessor of land is subject to liability for physical harm caused to his inviteesby a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, andshould realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail toprotect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

SUMMARY OF OWNER'S EXPOSURE

An Owner may require permanent anchors with little fear of liability to an

employee injured during construction. An Owner may suggest temporary anchors for



protection of workers and require that construction be performed in accordance with

applicable safety laws without interfering or controlling the means and methods of

construction. That suggestion should require installation in accordance with the

instructions of Super Anchor Safety or_another supplier.

DESIGNPROFESSIONALS

Design professionals would not incur liability for specifying permanent anchors

for any project. If the Architect specified Super Anchor Safety TM roof anchors -- or those

of other manufacturers -- and simply provided that they should be installed in accordance

with "manufacturer's recommendations", no liability should be found on the part of the

design professional for improperly installed anchors. A design professional who does not

inspect the work during construction owes no duty to construction workers for their

safety. There is also substantial precedent holding that an Architect who has a general

contractual responsibility to supervise or inspect construction may not be held liable to

injured workers, absent knowledge of the unsafe conditions causing injury. '2

An old decision of the Illinois Supreme Court in Miller v. DeWitt, 226 N.E.2d

630 (I11.1967) placed a duty on an Architect for safety based on the right to stop the work.

However, that case was based on a contract clause giving the Architect "general

supervision and direction of the work". Such clauses are rare, and other courts have

rejected the duty of a design professional based on a supervision or observation duty. 13

Absent a contractual duty of detailed construction supervision, which is indeed rare, a

1 2 Construction Accident Law Ch.5 at pp.286-287 and cases cited at footnote 154.13 For example, see the Wisconsin Supreme Court's decision in Luterbach v. Mochon, Schutte, et al.,involving the same contract language, but rejecting the Miller decision and refusing to find a duty of anarchitect for job safety based on general duties of supervision.

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design professional has little or no legal risk for construction safety or, in the case of

permanent anchors, safety of future users of safetyanchors. An exceptionwould be an

unlikely situation of a design professional's knowledge of an improperly secured anchor,

and failingto _ require correction or warn of the unsafe condition. '4 However, some states

have even found design professionals free of liability even if they knew of the existence

of a safety hazard. Decisions of Georgia, Nebraska, and Mississippi have held a lack of

duty of a design professional with knowledge of a safety hazard, based on the particular

contracts involved. 15 However, these decisions are the minority view and a prudent

design professional would warn of known safety problems. There is a greater likelihood

of exposure from knowledge that roofers or others are working without fall protection

than any possibility of exposure for an improperly attached roof anchor.

Some cases have been brought against design professionals on the "retained

control" doctrine of Section 414 of Restatement of Torts, but those cases have generally

been unsuccessful on the grounds that the Architect did not retain sufficient control over

the Contractor's work. ' 6 Also limited duties of job site inspection do not make an

Architect subject to OSHA standards. ' The Florida case of Miami v. Perez, 509 SO 2d

343 (Fla.Dist.Ct App 3d Dist. 1987) held that an Architect's on site inspections did not

14 The New Jersey case of Carvallo v. Toll Brothers & Developers, 675 A.2d 209 (N.J. 1996) discusses theliability of a design professional who knew of dangers [unstable trench] and failed to warn or requirecorrection. For a discussion of the Caravello decision concluding that it represents the majority view of adesign professional's liability based on knowledge see: Construction Accident Law, Ch.5, pp. 299-302.15 See: Yow v. Hussey, Gay, etc., 412 S.E.2d 565 (Ga. App. 1991) [architect owed no duty to injuredworker based on AIA Doc. A-201(97ed.) despite knowledge of hazard]; Belgum v. Mitsuo, Kawamoto &Assoc., 459 N.W.2d 226(Neb. 1990) [architect not liable despite knowledge of defective scaffolding]; andJones v. James Reeves Contractors, 701 S.0.2d 774 (Miss. 1997) [non supervising architect not liable forjob injuries despite knowledge of specific danger causing injuries].16 For examples see the Wyoming case ofMakinen v. PMPC, 893 P2d 1149 (Wyo. 1995) and the Indianacase of Teitge v. Remy Const. Co., Inc., 526 N.E.2d 1008, 1014-15 (Ind.Ct.App. 3d Dist. 1988) (architectdid not assume duty for overall safety merely by mentioning safety at progress meetings or by making twosuggestions concerning safety during daily on-site progress inspections.17 Skidmore Owings & Merrill, 15 BNA OSHC 1851 (1992), affd 3F3d 1 (1 St Civ. 1993).



mean that it or the City were active participants in the construction process so as to be

responsiblefor safety- control measures.

-SUMMARY- OF DESIGN-PROFESSION-AM S- EXPOSURE

A design professional that does not provide construction services has no liability

for job site injuries. A typical architectural contract requiring the Architect to generally

observe the progress of the work and to protect the interest of the Owner does not provide

the basis of design professional liability. An Architect may specify the Company's

permanent anchors without incurring liability. Absent knowledge of an improperly

attached anchor, an Architect has no exposure for job site accidents, should one occur

from that condition.

CONSTRUCTIONMANAGERS

A Construction Manger's (C.M.) liability for job site accidents is dependent on the

contract. If a C.M. is merely serving as the Owner's agent or advisor, his exposure would

be minimal and similar to that of a design professional, but an at-risk C.M.'s exposure

would be the same as a General Contractor's liabilities, which are discussed below. '$

C.M.'s are subject to OSHA exposure and an at-risk C.M. can incur OSHA penalties if

fall protection is not provided 19 . It has also been held that a C.M. advisor who performed

no actual construction work is vicariously liable for the failure of trade Contractors to

comply with OSHA standards. 20 A C.M. cannot stand by without taking action if trade

I S See Michael C. Loulakis', Construction Management: Law of Practice at 319-328 for a discussion ofC.M.'s exposure.'y Construction Accident Law, Ch. 7V, pp.413-416.20 Bechtel Power Corp., 4 B.N.A. OSHC 1005 (1976), aff'd 548 F.2d 248 (8th Cir. 1977).



contractors allow their employees to work on roofs without fall protection. The

following--discussion--o-f-General-Contractor' e posu-r-e isapplicable to-C M.'s at-risk.

GENERAL CONTRACTORS

General Contractors ("GC's") that are independent and separate from a

Developer/Owner would not be able to require permanent anchors unless they had a

written change order or written directive from the Owner or its Architect. Many General

Contractors install or sub contract the installation of the Company's permanent anchors.

Their potential exposure for installing anchors is the same as other portions of their work.

If the anchors are not properly installed, the GC is liable to employees of Subcontractors

and others that might be injured because of defective installation.

The tougher question is the potential liabilities of GC's that mandate the

installation and use of the Company's products by Subcontractors. By contract, a GC

who subcontracts the installation of permanent or temporary anchors has the defense of

work by an independent contractor (the installing Subcontractor) 21 . However, the

"retained control" exception to the "independent contractor" defense is applied much

more frequently to GC's than Owners. A GC faces a "retained control" exception if it

specified detailed safety procedures or does nothing in the face of open and obvious

dangers to the employees of its Subcontractors. The reasoning for increased GC liability

over that of an Owner is the GC's knowledge, contractual obligations for safety and

continuous presence on a project. Also, comment b to Section 414 of Restatement 2 t'd sets

71 See f.n. 6 and Section 409, Restatement 2 'd



the stage for judicial reasoning for applying the "retained control" exception to GC's

becauseif provides:

The rule stated in [section 414] is usually, though not exclusively, applicablewhen a principle contractor entrusts a part of the work to subcontractors, but--- - -himself or through a foreman superintends the entire job. In such a situation, theprinciple contractor is subject to liability if he fails to prevent the subcontractorsfrom doing even the details of the work in a way unreasonably dangerous toothers, if he knows or by the exercise of reasonable care should know thatsubcontractors' work is being so done, and has the opportunity to prevent it byexercising the power of control which he has retained in himself So too, he issubject to liability if he knows or should know that the subcontractors havecarelessly done their work in such a way as to create a dangerous condition, andfails to exercise reasonable care either to remedy it himself or by the exercise ofhis control cause the subcontractor to do so. (Emphasis added.)

Id.; RESTATEMENT (SECOND) OF TORTS §414 cmt.b (1965).

Applying the above comment to a situation of a GC's turning a "blind eye" to

roofers, framers, and other workers on sloped roofs with no or inadequate protection,

indicates that a GC may well be in a better legal position by requiring safety anchors than

doing nothing out of fear of assuming "too much control" over Subcontractors' safety

details.

The risk of exposure is increased if the GC mandates the Company's products and

installation requirements instead of merely requiring the Subcontractor to perform its

work "in accordance with all state and safety laws". The increased risk arises out of the

"right of control" or "retained control" doctrine of Section 414 of the Restatement (2 "d) of

Torts. Although the GC can shift the risk of exposure to an installing Subcontractor by

subcontract, it may still be vulnerable to suits of injured employees under the "retained

control" or another exception of the independent contractor rule of Section 409

Restatement 2t'd . The GC is usually protected by the Subcontractor's indemnification



obligations backed up by the contractual liability coverage of the Subcontractor's CGL

-insurance, and perhaps even further protection as an additional insured on the

Subcontractor's CGL policy.

GENERAL CONTRACTOR'SCHOICE

A GC must make a basic decision to rely on the "independent contractor" rule and

try to avoid any control or interference with its Subcontractors operations, or insist that

its Subcontractors provide protections for those working on roofs, even to the point of

requiring the installation of the Company's safety anchors or those of another

manufacturer. Our research reveals that a GC should adopt the position of being pro-

active even if it crosses the line of retained control. Our practical and legal reasons for

this position are:

1. Best Defense is "No Accident"

The best defense of a GC –and all other parties involved in construction - is

that there is no accident to defend. Roofing may certainly be classified as

"dangerous work", which is still an exception to the "independent contractor"

rule. 22 Also, without considering the legal application of the "dangerous work"

exception, anyone knowledgeable in construction knows that work on roofs is

dangerous. Fall protection violations of 29CFR1926.501 were the third most cited

violation in the construction industry for fiscal year 2004, and second in the

amount of penalties assessed. Although these figures include fall protection

22 The "dangerous work" exception is based on Sections 413, 416 and 427 of Restatement 2° d .Itsapplication has declined in recent years. See: Construction Accident Law, Ch. 3, pp.182-196, but is stillapplied in some states.



violations for more than roofing operations, roofing is the highest. Also, roofing

continues to be a major cause of employee deaths, with 94 reported in 2004, an

increase over 55 roofer deaths in 2003. 23 Serious injuries form roofing falls

continue to be a major source of construction accidents. The insisting of safety

anchors by Subcontractors can certainly avoid law suits by preventing accidents

in the first instance.

2. Contractual Obligations of GC for Safety

Most general contracts require GC's to be in charge of job site safety.

For example, AIA Document A-201 (98ed) provides in 10.2.124 :

"The Contractor shall take reasonable precautions for safety of, and shallprovide reasonable protection to prevent damage, injury or loss to:

1. employees on the Work and other persons who may be affectedthereby;

2. the Work and materials and equipment to be incorporated therein,whether in storage on or off the site, under care, custody or controlof the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and

The terms "employees on the Work and other persons" certainly could

include the employees of independent Subcontractors. Also, Paragraph

10.2.3 of A201 requires the General Contractor to "maintain...reasonable

safeguards for safety and protection, including...promulgating safety

regulations..."; and Paragraph 10.2.6 requires the General Contractor to

23 Les Christie, "America's Most Dangerous Jobs", CNN/MONEY, 08/26/05.24 The authors ofBruner & O'Connor on Construction Law, West 2002, Opine at Vol. 23 5:197 at pp.339-340, "The AIA scheme is quite clear in its approach to safety. The contractor is the party primarilyresponsible for maintaining a safe work site." Language similar to the AIA General Conditions on safety isfound in most housing and multi-family contracts.



"designate a responsible member of the Contractor's organization at the

site whose duty shall be the prevention of accidents."

Also, most subcontracts necessarily give a General Contractor broad

control over a Subcontractor's safety practices, in spite of the typical

language that the Subcontractor is "solely responsible..."

Some courts have applied a "retained control by contract" theory of

liability to GC's based on the terms of the contract between the GC and the

Subcontractor employer of an injured employee. 25 However, others have relied on

the extensive duties for job site safety assumed by a GC for support of liability

under the retained central doctrine 26 , including cases in Arizona (Lewis v. Riebe

Enterprises, 825 P.2d 5 (1992)) and Washington (Kelley v. Howard S. Wright

Construction Co., 582 P.2d 500 (1978); and Massachusetts (Corsetti v. Stone

Company, 483 N.E.2d 793 (1985). Also some states allow an injured

Subcontractor's employees to sue the GC on the peculiar risk or dangerous work

exception27 .

To comply with its contract, a GC has safety duties, including roofing

operations, even if those duties have been subcontracted. Those contractual

25An examination of Texas case law reveals that the right of control must be found in the specific contract

between a general contractor and its subcontractor as opposed to the duties assumed by the generalcontractor in its prime contract. For example, see Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801 (Tex1999).26 In Smith v. U.S., 497 F.2d 500 (5 th Cir. 1974), the extent of contractual safety duties was used to hold aGC liable on a federal project for job injuries even thought the entire job was subcontracted.27 Construction Accident Law, Ch.3, p.143 cites cases at FN's339-343 holding direct liability of the GC onthe "dangerous work" exception from Iowa, Michigan, North Dakota, Pennsylvania, and South Dakota.



obligations can form the basis in some states for a GC's exposure to suits from

employees of Subcontractors.

3. OSHA and State Safety Laws Place Safety Duties on GC's

GC's are frequently held liable for those Subcontractor violations that are

known or by the use of reasonable diligence should have been known, and even

for latent violations of their Subcontractors. In Secretary of Labor v. Blount

International,28

the GC was assessed OSHA penalties because its electrical

Subcontractor had installed an electrical panel distribution box that had some

outlets not protected by ground-fault interrupters. In affirming the Secretary of

Labor's position, the Occupational Safety and Health Review Commission

conceded that the electrical Subcontractor's violations were latent, but relying on

testimony that a GFCI system was basic knowledge of Contractors on all job sites,

affirmed the citations against Blount. Blount's argument that it was entitled to

rely on the assumption that its electrical Subcontractor complied with the

appropriate OSHA standard was rejected. Of course, since work on roofs is open

and obvious, liability of a GC would be much easier to prove if no fall protection

was used by the roofing Subcontractor's employees or any other workers on

roofs.

Although subsequent decisions have held General Contractors were not

responsible for latent conditions, the facts of those cases reveal an active safety

program and frequent inspections by the General Contractors. For example, in

2815 BNA OSHC 1897 (OSHRC 1992).


Canterbury, Stuber, Elder, Gooch . Surratt

Centex-Rooney Constr. co.'', the general contractor was cited for perimeter

guarding violations and GFCI violations of Subcontractors. The Review

Commission affirmed the perimeter guarding citations for lack of enforcement

when Subcontractors removed but did not replace guardrails, but dismissed the

GFCI violations on proof that the Contractor conducted random inspections of the

electrical outlets more than once a month. The perimeter guarding violations of

the Subcontractors in Centex-Rooney were similar to a roofing Subcontractor's

failing to require full protections. The GC would be held vicariously liable for

OSHA or comparable state safety law penalties.

GC's must be involved in their Subcontractors' safety compliance to avoid

OSHA citations. Also General Contractors, by OSHA standards, have ultimate

responsibility for job site safety.

A basic premise of General Contractor liability is premised on the rules of

construction of OSHA's Construction Standards, 29 C.F.R. 1926:

1926.16(a)

The prime contractor and any subcontractors may maketheir own arrangements with respect to obligations whichmight be more appropriately treated on a jobsite basisrather than individually. Thus, for example, the primecontractor and his subcontractors may wish to make anexpress agreement that the prime contractor or one of thesubcontractors will provide all required first-aid or toiletfacilities, thus relieving the subcontractors from the actual,but not any legal, responsibility (or, as the case may be,relieving the other subcontractors from this responsibility).In no case shall the prime contractor be relieved of overallresponsibility for compliance with the requirements of thispart for all the work to be performed under the contract.

29 16 BNA OSHC 2127 (OSHRC 1997).



1926.16(b)

By contracting for full performance of a contract subject tosection 107 of the Act, the prime contractor assumes allobligations prescribed as employer obligations under thestandards contained in this part, whether or not hesubcontracts any part of the work.

Necessarily, a General Contractor must have a substantial right of control

over Subcontractors' safety procedures. In fulfilling OSHA obligations, can a

General Contractor assume "too much" control over Subcontractors' means and

methods and thereby incur tort liability? Assuming control over the means and

methods of a Subcontractor's performance can result in liability under traditional

common law principles. However, a "don't see -- don't interfere" policy will not

work on multi-employer construction sites. If a GC sees roofers without adequate

protection, action should be taken to avoid vicarious OSHA citations. Contractors

and their supervisors cannot engage in speculation of how much control is too

much when workers are exposed to danger of harm or death. They must act!

In addition to the potential for vicarious liability, a GC has direct

obligations to provide safety protections for its own employees. Therefore, if a

GC's superintendent needs to be on a roof for inspection or any other reason, the

requiring of safety anchors, installed by the GC or subcontracted to a roofing or

framing Contractor, would fulfill a GC obligations under OSHA and state safety

laws.



4. Possibility of Retained Control Exposure

Even in states that have favorable case law for GC's on right of control or

retained control, allowing Subcontractors to engage in unsafe practices such as allowing

their employees to work without proper fall protections can lead to a GC's tort liability

for injuries or death of the offending Subcontractor's employees. A GC's problem is

illustrated by the Texas Supreme Court's decision in Lee Lewis Construction, Inc. v.

Harrison, 70 S.W.3d 778 (Tex. 2001). In that case the court upheld a $12.5 million dollar

jury verdict in favor of the survivors of a Subcontractor's employee against a General

Contractor, Lee Lewis Construction (LLC). Harrison, who worked for KK Glass, a

Subcontractor on the job, suffered fatal injuries after falling from the 10th floor where he

was working.

Testimony by LLC employees and experts indicated that if a lifeline had been

used , it would have prevented Harrison's death. Testimony also indicated that "an

effective fall protection system would have mandated using independent lifelines." LLC

hired one of its superintendents to supervise the work, and to ensure that the proper safety

procedures were being followed. The superintendent observed KK Glass employees using

a bosun's chair (a wooden board suspended from the roof by a rope) and lanyard system

but failing to use lifelines or safe work platforms. The superintendent did not require the

employees to use an independent lifeline, even though such lifelines were mandatory for

all LLC employees. There was also ample evidence to prove that LLC was aware of the

extreme danger involved in the job.

The court restated the rule that a General Contractor does not owe a duty to

ensure the work is performed in a safe manner unless the Contractor retains control over

W:\Super Anchor Safety-7I42 \Super Anchor Safety Opinion Paper.doc 22


the work. (If the Contractor does exercise control over the work, the Contractor could be

liable for failing to use reasonable care in supervising the activity. Elliott-Williams Co.,

Inc. v. Diaz, 9 S.W.3d 801 (Tex. 1999); Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.

1985).) The court held that the evidence was sufficient to conclude that LLC had retained

control over the safety procedures used by KK Glass and other Subcontractors, and could

therefore be held liable for failing to exercise reasonable care in supervising KK's

procedures. LLC was held grossly negligent based on its imputed awareness of the extreme

risks involved, and its failure to take the proper safety precautions and ensure that they

were followed by Subcontractors.

Since there is a risk of liability, the prudent GC would be wise to require fall

protection by its Subcontractors. Washington law places a non delegable duty on GC's to

provide a safe work place (State v. P.B.M.C., 788 P.2d 545 (1990)). A GC's requirement

that its Subcontractors furnish safety equipment, including fall protection, could help the

GC avoid liability because the contract terms could be admitted in evidence. 30 To prove

that the GC met his duties under WISHA regulations "to furnish safety equipment or to

contractually require Subcontractors to furnish adequate safety equipment relevant to their

responsibilities." Therefore, GC's in Washington seem to have no fear of increased legal

risks by requiring the use of Super Anchors TM , since they have the ultimate duty for job

safety. The case of State v. P.B.M.C., Inc., 114 Wash.2d 454, 463-64 (1990) held that GC's

in Washington have a duty to furnish adequate safety equipment or to "contractually"

require that their Subcontractors do so. A review of cases of various states reveals that the

30 See Washington Court of Appeals decision in Dergroot v. Berkley Construction, Inc., 920 P.2d 619(Wash. App. Div. 3, 1996) [subcontract requiring subcontractor to provide safety equipment; comply withsafety regulations; and to "protect its own employees, employees of contractor, and all other persons fromrisk of death, injury or bodily harm", is as allowed in evidence to show that General Contractor hadfulfilled duties under WISHA.]



emphasis of vicarious liability under Section 414 of Restatement 2 "d is much more likely

for GC's than Owners, as discussed above at page 13.

Another state placing ultimate responsibility for job safety on the GC is Michigan. 31

Most safety laws also place general job duties on the GC. For example, Washington places

specific duties on GC's for compliance with fall protection 32 .

SUMMARY OF GENERAL CONTRACTOR'SEXPOSURE

In view of the chances that a court would find liability of a GC under an established

exception to the "independent contractor" defense such as "retained control", "dangerous

activity" of roofing work, is in violation of a "statutory duty" (OSHA and various state

safety laws) or some other exception, and the vicarious exposure to penalties under OSHA

or state safety laws, it is our opinion that any risk of increased liability under the retained

control doctrine pales in comparison to the benefits of requiring the use of the Company's

safety anchors, or those of some other manufacturers.

SUBCONTRACTORS

Liability for improperly installed anchors for injuries to users would fall on the

installing Subcontractor. Rather installed to protect its own employees or as subcontracted

from a GC, an installing Subcontractor (usually roofers or framers) should install the

Company's anchors pursuant to the Company's instructions and inspect the framing to

which they are attached. Subcontractors whose employees use roof anchors for fall

protection have safety duties pursuant to their subcontracts and state and federal safety laws

to avoid falls by their employees and all others that may use the anchors. If permanent

31 Funk v. General Motors, 220 N.W.2d 641 (1974). [court stated that "part of the business of the generalcontractor was to assure reasonable steps...to guard against readily observable, avoidable dangers..."]32 RCW 48.17006(2).

W:\Super Anchor Safety-7142\Super Anchor Safety Opinion Paper,doc 24


anchors are not allowed, temporary anchors must be used, spaced as recommended by the

Company in its installation instructions.33

CONCLUSION

Owners and their Architects have little to fear in specifying the Company's products for

permanent components of their buildings. The specifying of only the Company's

temporary anchors could lead to an increased chance of exposure under the "retained

control" doctrine, but requiring the GC to comply with state and federal safety laws with a

suggestion of the Company's permanent anchors would not amount to "retention of

control". A GC has to make a decision to avoid specific requirements of fall protection or

to be pro-active. Our opinion is that a pro-active GC - even to the point of requiring use of

the Company's safety anchors- leaves less risk in most states than doing nothing. Also to

comply with OSHA and state safety laws, GC's must prevent obvious dangers to

employees such as roofers without safety lines and anchors to secure them. They must stop

such work until fall protection is provided.

On a final note, the legal position of all parties is best if no one falls. The prevention

of falls should get past "what if s" and legalized ponderings of the unlikely situation of an

anchor failing because of improper attachment.

Yours very truly,CANTERBURY, STUBER, ELDER,GOOCH & SURRATT, P.C.

33 Although we think the Company's safety anchors are superior to other tie off points for workers on roofsof wood framed buildings, we do not mean to imply they are the only acceptable method of protection.



Joe F. Canterbury, Jr. is a founding shareholder of the Canterbury, Stuber, Elder, Gooch& Surratt, P.C. He represented Connell Construction Company before the United StatesSupreme Court and won the first case in the United States placing unions under antitrustlaws for unilateral union action since the enactment of the Norris-La Guardia Act in1932. Connell Const. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616(1975).

Mr. Canterbury is a noted author and lecturer on construction and labor and employmentlaw issues. He is the author of the Texas Construction law Manual, and is acontributing author to several other construction law publications. He frequently speaksto national, state and local bar associations, as well as various trade associationsregarding construction and labor and employment law issues.

Mr. Canterbury has been Board Certified in Labor and Employment Law by the TexasBoard of Legal Specialization since 1975. He is also a frequent arbitrator and mediator ofconstruction-related disputes.

Canterbury, Stuber, Elder, Gooch, & Surratt, P.C. opened its doors on February 1, 1981as Canterbury and Elder with four attorneys practicing primarily in the area ofconstruction law. Today, the Finn has grown to 15 attorneys and has over 200 years ofcombined experience representing the legal interests of its clients on a local, state, andnational level. Located in Dallas, Texas, many of the Firm's attorneys have substantialexperience in complex construction litigation, arbitration, and mediation.

The Finn's primary practice area continues to be construction law and litigation. Many ofthe Firm's clients include general contractors, subcontractors, owners, sureties, andconstruction industry trade associations. However, our practice areas are not limited toconstruction law. The Firm has continually expanded into the areas of labor andemployment law, real estate, corporate law, personal injury, and business litigation.

Many of the Finn's attorneys are frequent speakers before national, state, and localconstruction industry associations in addition to various programs sponsored by theAmerican Bar Association and the State Bar of Texas. Several Shareholders in the Finnserve as arbitrators and mediators through the American Arbitration Association.

The Firm's practice areas include:

■ Construction Litigation in Federal, State, and Administrative Courts■ Negotiation and Drafting of Contract Documents■ Labor and Employment Law■ Arbitration and Mediation■ Real Estate Law■ Corporate Law■ Business Litigation■ Mechanic's and Materialman's Lien Claims■ Performance and Payment Bond Claims■ Claims Preparation and Analysis■ Bid Protests

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