Injuries from ladders are very common during construction. Often, these ladders are supplied by employers or homeowners in a faulty condition. In such cases, the ladder can be in a dangerous or defective condition, and therefore e a case for negligence may exist. Moreover, if the homeowners controlled or directed the work if they were responsible for the safety equipment or training, they can be liable for the injuries sustained. The article explains the law of ladders, and how Florida homeowners can avoid potential liability when having workers on their premises.
I. Background Florida Ladder Law
“The origin of this heightened duty of an owner/general contractor is the supreme court’s decision in Conklin.” Worthington Cmtys., Inc. v. Mejia, 28 So. 3d 79, 83 (Fla. 2nd DCA 2009). In Conklin, the plaintiff was employed as a workman on a commercial building that was under construction. Conklin v. Cohen, 287 So. 2d 56, 60 (Fla. 1973). While he was working, the scaffolding that he was standing on broke, and he fell seventeen stories to his death. Id. His widow sued multiple parties, including the owner, the architect, the engineering firm, and the worker’s compensation carrier for the contractor and subcontractor. Id. The complaint alleged that each of these entities “negligently breached their duty to provide the deceased with a safe place to work by failing to see that certain safety regulations were followed.” Id.
In addressing the potential liability of the property owner, the Florida Supreme Court explained:
“[A]n employee of an independent contractor may maintain against an owner an action at law for damages suffered as a result of the latter’s negligence.” [State ex rel. Auchter Co. v. Luckie, 145 So.2d 239, 242 (Fla. 1st DCA 1962)].
The phrase “as a result of the latter’s negligence,” above means that the owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an owner who is not an employer as defined by the [worker’s compensation] statute, one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established.
Id. at 59-60 (emphasis added; footnote omitted).
“Thus, under Conklin, an owner who is also the general contractor, and thus by definition is actively participating in the work, may be held liable for a workman’s injuries if that workman can prove that the owner either negligently created or negligently approved of the dangerous condition that resulted in the injury or death.” Worthington, 28 So. 3d at 83-85 (e.o.).
Applying Conklin, the court in Worthington considered whether the lower court properly denied an owner’s motion for a directed verdict. Id. The court noted that “because Worthington was an owner that was ‘actively participating’ in the construction, it could be held liable if the Mejias could establish ‘one or more specific identifiable acts of negligence’ committed by Worthington that resulted in his injury.” Id. at 84; see also § 489.103(7)(b), Fla. Stat. (“The owner may not delegate the owner’s responsibility to directly supervise all work to any other person unless that person is registered or certified under this part and the work being performed is within the scope of that person’s license.”).
After analyzing the facts in the light most favorable to the plaintiff, the court in Worthington held that “[b]ecause the Mejias presented some evidence supporting their position that Worthington either negligently allowed the dangerous condition to be created or negligently approved it, even if only by simply ignoring it, Worthington’s directed verdict motion was properly denied, and the case was properly sent to the jury on this issue.” Id. at 85. Moreover, this duty cannot be delegated because, “As Conklin teaches, an owner/general contractor has a duty to keep the entire jobsite reasonably safe for all employees…The owner/general contractor cannot delegate its obligation to keep the entire jobsite safe to a single subcontractor. . .” Id. at 87. Likewise, a homeowner cannot delegate their obligation to provide a safe working environment for the roofing work – work they directly engaged the worker to perform and which was outside the scope of his job.
II. A Homeowner’s Duty
When a homeowner fails to supply safety equipment to a worker, and if they supply no training at all, nor any supervision, there can be legal issues. This not only creates a jury issue as to whether a homeowner satisfied their obligation to provide a safe working environment for the roofing work, but it is also a direct violation of OSHA standards. Specifically, 29 C.F.R. § 1926.501(b)(1) states:
Unprotected sides and edges. Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.
The homeowners can therefore be involved in creating the negligent condition and in approving the dangerous condition that ultimately led to the injuries.
III. Duties to an Independent Contractor
A principal has a duty to see that the instrumentalities that he provides to an independent contractor are reasonably safe and suitable for use. Noel v. M. Ecker & Co., 445 So. 2d 1142 (Fla. 4th DCA 1984). In Noel, Ecker was a company that supplied construction equipment. Id. at 1143-44. Ecker supplied a nail gun to Noel, who was employed as a carpenter by a labor subcontractor for the construction project. Id. at 1143. Noel had operated the nail gun for several months before suffering a partial loss of hearing. Id. Noel sued Ecker for negligence. Id. Liability was premised upon Ecker’s negligence in supplying the nail gun to Noel without also supplying adequate safety equipment. Id. The trial court directed a verdict in favor of Ecker, and Noel appealed. Id.
On appeal, the Court noted that even though Noel was an employee of an independent contractor, Ecker had assumed certain duties towards Noel for which Ecker could be found liable. Id. at 1144. Specifically, the Court stated:
Where the employer undertakes to furnish his own employee or those of an independent contractor, some of the implements or instrumentalities for executing the required work, he thereby assumes a duty to exercise ordinary or reasonable care, measured by the surrounding circumstances, to provide such instrumentality as will be reasonably safe and suitable.
The Noel court recognized a duty owed by one who undertakes to supply equipment to an independent contractor to both make sure the equipment is safe and suitable under the circumstances and a separate duty to warn the independent contractor if the supplier of the equipment has actual or constructive knowledge of the potential danger or, in lieu of warning, to provide adequate safety protection under the circumstances. See also Ortiz v. Lorie, 921 So. 2d 868 (Fla. 4th DCA 2006) (reversing summary judgment where plaintiff relied on a theory of liability based upon the duty of a principal to see that the instrumentalities that he provides to an independent contractor are reasonably safe for use; plaintiff alleged that defendant negligently furnished a defective ladder for his use).
When homeowners directly engage a worker to perform roofing work, they can suffer liability in the event the worker is injured. By causing the workers to perform that roofing work, homeowners were obligated to supply a safe working environment.
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