In Ohio, liability of general and subcontracts for injuries sustained by independent contractors arises under the “active participation" doctrine. This doctrine applies to contractors that actually participate in independent contractor’s job operations who fail to eliminate a hazard which could have been eliminated in the exercise of ordinary care. If such a hazard is not eliminated, the general or subcontractor can then be liable for injury or death of employees of the independent contractor.

Recently, in Rockett v. Newark Builder Supply, Inc., the Fifth District Court of Appeals further defined the “active participation” doctrine, and offered further protections for contractors that use independent contractors on a job site. In Rockett, Arrow Home Services, a general contractor constructing a residential home, hired Newark Builders as a subcontractor for drywall work. Newark hired two independent contractors, including Jonathon Rockett, to sand the drywall of the residential home.

Prior to Rockett’s arrival on the jobsite, Arrow had constructed a guardrail around a floor opening that led from the first floor to the basement. Thereafter, Newark removed the guardrail. Tragically, while sanding the drywall, Rockett fell through the floor opening into the basement, to his death.

Importantly, no workers from either Arrow or Newark were present on the jobsite on the day of Rockett’s fall. After Rockett’s death, his father brought a lawsuit on behalf of his son’s estate against Newark & Arrow alleging negligence and wrongful death. Plaintiff essentially argued two claims: 1) The general and subcontractors involvement in building and removing the guardrail and scaffolding amounted to “active participation” in Rockett’s job operation, thereby giving rise to a duty of care; and the erection of scaffolding and a guardrail created an assumed duty of the contractors to protect Rockett.

In considering Rockett’s claims, the trial court re-examined the “Active Participation Doctrine,” which has been defined and redefined by courts throughout the years. Currently, in examining a duty of a general contractor owed to an independent contractor on a job site, the duty to eliminate an “inherit risk” arises only if there is active participation by the general contractor. Specifically, “a general contractor, who has not actively participated in the subcontractors work, does not, merely by a virtue of its supervisory capacity, owe a duty of care to employees of the subcontractor who are injured while engaged in inherently dangerous work.”

In examining the conduct of Arrow and Newark in creating and taking down scaffolding and railings in the area where Rockett fell to his death, the trial court granted summary judgment to both general contractor and subcontractor, finding that the general contractor and subcontractor did not owe Rockett a duty of care because they did not “actively participate” in his job operation. Regardless, the court held there was no evidence that the general contractor directed any of the activity of Mr. Rockett as an independent contractor or that the general contractor gave or denied permission for any critical acts that lead to Mr. Rockett’s inujury.

The trial court further held that the contractors assumption of enforcing safety rules and regulations does not by itself give rise to “active participation” such that would create a duty of care on the part of a general contractor or subcontractor under the active participation doctrine.

If you would want a complete copy of the opinion or have any questions regarding construction design or liability exposures, call any member of our Construction Design Liability Practice Group. 

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