12.3.1.3 General Contractors and Landowners

• Jurisdiction: Arizona

. One of the most fertile sources of third-party claims is the typical large construction project managed by a general contractor under contract with the landowner. A serious construction site injury to a subcontractor’s employee usually results in a lawsuit against the general contractor and the owner.

A substantial body of law has developed nationally and locally concerning the rights of an injured subcontractor’s employee to pursue civilly the general contractor or the landowner for a job site injury. Although the common law on the subject is voluminous, some general principles emerge. The subject is clarified further by a recent opinion of the Arizona Supreme Court.

There is generally no vicarious liability for the negligence of an independent contractor. However, a general contractor may be independently liable for the negligent exercise of retained control over the work of the subcontractors.^[175] A general contractor has a duty to provide a reasonably safe workplace for employees of subcontractors. The scope of that duty is defined by the Restatement (Second) of Torts § 414 (1965):

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.

Under this rule, the crucial questions are what control the general contractor had and whether the general contractor exercised that degree of control with reasonable care.

For years, an ongoing question in this state was whether the general contractor’s retained control over jobsite safety, an obligation usually included as a condition in its contract with the owner, was sufficient to invoke liability under § 414. Previous cases held that retained control over safety, as evidenced by either the general contractor’s contract with the owner or through the distribution of safety pamphlets and the implementation of a safety program at the jobsite, were sufficient to make the general contractor liable in the absence of other evidence of actual detailed control over the work of subcontractors.^[176] That position was confirmed by the supreme court in Lewis v. N. J. Riebe Enterprises, Inc.^[177]

In Lewis, the scope of the general contractor’s retained control was determined by standard provisions imposing responsibilities for jobsite safety in the American Institute of Architects’...