Alexander Heritier

In Larsen v. Vision Quest Consulting et al., a subcontractor’s employee moved a barricade to enter a building that was under construction and subsequently fell down an open stairway shaft. The general contractor, Vision Quest, hired BQW to manage the construction site, and BQW’s employee, Brian Kemppainen, was on site most days to enforce Vision Quest’s safety program. Vision Quest contracted with another sub-contractor, A4H Construction, to install barricades at all entry points to the building under construction, and hired subcontractor Complete Enclosures to do work on the building. As part of that work, Complete Enclosure’s employees unfastened a barricade from the building to gain access and told Mr. Kemppainen that they had reinstalled the barricades, but in fact they failed to properly fasten the barricade back to the building. The next day, Plaintiff was on site to make deliveries and, unable to access the building any other way, found the loose barricade. Plaintiff removed the barricade, entered the building, and fell suffering injuries.

The trial court granted Vision Quest’s motion for summary disposition as to general contractor liability under the common-work area doctrine, but denied Complete Enclosure’s motion for summary disposition as to comparative negligence and proximate cause.

On appeal, the Court of Appeals’ majority affirmed both lower court decisions. As to Vision Quest, the Court analyzed the common work area doctrine which supports general contractor liability for a subcontractor’s negligence only if (1) the general contractor failed to take reasonable steps within its supervisory and coordinating authority, (2) that could guard against a readily observable and avoidable danger, (3) which creates a high degree of risk to a significant number of workers that occurs (4) in a common work area. The majority found that Vision Quest had taken reasonable steps when it had a barricade installed and even confirmed with Complete Enclosures that the barricade had been reinstalled after their work, which it deemed sufficient to satisfy the guardrail provisions in the relevant OSHA regulations.

The majority also found that the danger at issue was not the opening in the floor through which Plaintiff fell, but rather confronting the opening without proper safety measures in place which was the condition here. The majority also found no evidence that a large number of workers used the specific area where Plaintiff fell. Evidence that others worked outside the area or above and below the area was not sufficient to satisfy the third element. Similarly, the fourth element was not met because other workers did not use the area around this barricade on a regular basis.

The dissenting Judge believed that the common work area doctrine elements had been met and that Vision Quest should not have been granted summary disposition. The dissent opined that reasonable steps would have resulted in additional fall-risk protections, such as a guardrail around the stairwell shaft itself inside the barricaded door. The dissent also believed that other workers working “around the landing” were sufficiently close to establish a question of fact whether the injury occurred around a significant number of workers in a common work area.

Both the majority and dissent agreed, however, that Complete Enclosures was not entitled to summary disposition. They found Complete Enclosures breached its common-law duty to not unreasonably endanger the well-being of others on the job site by not only failing to properly reinstall the barricade, but also by actively removing the barricade in the first place. Complete Enclosures argued that it was not foreseeable that a person would move the barricade if it was not properly secured to enter the building but the Court found sufficient evidence to support a finding that the very basis for securing the barricade was to prevent others from entering the building and thus, Plaintiff doing so was foreseeable.

Finally, Complete Enclosures argued that the Plaintiff was comparatively negligent and committed a criminal act of entering without obtaining permission. The Court disagreed, finding that the Plaintiff’s comparative negligence was not a bar to his recovery and the weight of that comparative negligence was an issue for the jury to determine. Further, despite the fact that Plaintiff was supposed to deliver through another entry point, Plaintiff had previously received permission to deliver items to other entry points if the main entrance was locked.

Ultimately, the Court provided fairly clear guidance on what level of reasonable steps were necessary for a general contractor to avoid liability. Conversely, the Court found that if a subcontractor creates a risk of harm, they will be responsible for the outcome of that risk.