The general rule is that contractors are not liable for the injury or death of a subcontractor’s employee. Among the exceptions, however, are Ohio’s “active participation” rule and Kentucky’s “retained control” doctrine.
In Ohio, the active participation doctrine limits the contractor’s liability to situations where the contractor actually directed the activity that resulted in the injury and/or gave or denied permission for the critical acts that led to the employee’s injury. Situations where there is no active participation include: (1) merely exercising a general supervisory role over the project; (2) contractor’s knowledge of the activities giving rise to the injury; or (3) contractor’s retention of control over general safety procedures unless the contractor directs or interferes with the subcontractor’s work.
Kentucky has adopted the “retained control” exception. Generally, this exception provides that the contractor is not liable unless it retains at least some degree of control over the manner in which the subcontractor’s work is done. If the contractor implements and requires a safety program that sufficiently affects the subcontractor’s means and methods of doing its work, then it could be liable for injuries to the subcontractor’s employees. It is not enough that the contractor has a general right to order worked stopped or resumed, to inspect progress or to receive reports, to make suggestions, or to prescribe alterations or deviations.
Under either doctrine, the more involved the contractor becomes in the subcontractor’s safety program, the more likely it will subject itself to liability. Accordingly, if the contractor provides an extensive safety program that subcontractors are required to follow and intensely monitors safety performance, it could likely be liable for injuries to the subcontractor’s employees. However, if the contractor merely provides some basic safety guidelines to the subcontractor, there is much less risk of incurring liability.« Back to news