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Focus - Understanding the “Duty of Care”

image Kraig Kyle, CSP, CHST, CHSP, Vice President, CORE Safety, Dallas, TX

DALLAS/FT WORTH - In brief, this article discusses the duty of care businesses may create when hiring and controlling a subcontractor or independent contractor and ways to mitigate that risk and liability.






    Contractors often hire subcontractors or independent contractors to perform additional scopes of work on their behalf.  Often businesses do so without understanding the liabilities or significant risk associated by control-generated actions that create a duty of care.  Even when a contactor imposes contractual obligations, they often create a duty of care though unintentional and often-unnecessary safety management actions. Common law found in §414 of the Restatement (Second) of Torts (ALI, 1965) states:
    “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. (ALI, 1965)”
    The key extract of this law is the extent by which a contractor has control and the amount of reasonable care the prime contractor must take.  Each are open to interpretation, vary by situation and require a strategic balancing act.  For example, the prime contractor may overextend in their role by exerting too much control and directly managing its subcontractor’s safety obligations.  On the other hand, the prime contractor can also fail to meet its obligations to provide the appropriate amount of reasonable care by not prequalifying its subcontractor or by not providing sufficient oversight. 
    There are various strategies for mitigating these risks and it is important for companies to recognize their responsibility for ensuring the correct amount of reasonable care is exercised with its subcontractors without crossing the line of owing a duty of care.  Our clients have benefited from consulting with their insurance provider, legal counsel and their safety representatives to develop and implement an effective subcontractor safety management strategy to limit their liability exposures. 
    Tips for properly exercising reasonable care includes:
    •   Complete a safety pre-qualification review of your subcontractors that includes evaluating safety
         records and experience modification rates.
    •   Clearly define subcontractor responsibilities within subcontract
         agreements for safety and company employees.
    •   Ensure subcontracts contain strong indemnification language and that
         a certificate of insurance is established listing the prime contractor as additionally insured.
    •   Ensure the subcontractor has established a formal written safety program and is implementing
        its policies and procedures.
    •   Avoid directly managing or controlling the safety obligations of your subcontractor. This doesn’t
        mean avoiding oversight or taking necessary actions for violations that occur.
    A graduate of Indiana State University with a Bachelor of Science in Occupational Health and Safety Management, Kyle serves as the Vice President of CORE Safety Group and has over 15 years of practical safety management experience that includes developing and managing corporate safety programs and advising client leadership on best management and loss control practices. He has experience in loss control such as worker’s compensation, general liability, and claims management. These experiences include effectively developing and implementing safety and claims management strategies on billions of dollars of wrap-up insurance programs. -cmw

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Carol Wiatrek meditor@constructionnews.net