This is the fifth of a six-part series on liability defenses that every inside counsel should know (Part 1, Part 2, Part 3 and Part 4). Based on more than 30 years of litigation practice, this series discusses the liability defenses I have found to most often result in successful summary judgments or dismissals, providing the best potential to end expensive and time-consuming litigation. This installment focuses on the ability of premises owners to obtain summary judgment when they are sued by employees of independent contractors or other invitees who perform work on their premises. These premises owners should be entitled to summary judgment early in the development of the case unless the plaintiff can show that the premises owner retained control over the work and failed to warn of some known danger.
The general rule is that there are important limitations on the ability of an independent contractor to sue a premises owner. The premises owner is not liable if the independent contractor or its employees created or knew about the dangerous condition that caused the injury or damages. The premises owner also should not be liable if it has relinquished control of the premises to the independent contractor for the purpose of performing the work. In order for a plaintiff to prove that a premises owner is liable based on the owner retaining control of the work, it is not enough for the plaintiff to show that the premises owner merely retained a general right to order the work stopped or resumed, to inspect its progress or to receive reports, or to make suggestions or recommendations that need not necessarily be followed. There must be a retained right of control over the work such that the contractor is not free to do the work their own way. A premises owner should not be subject to lawsuits by employees of independent contractors unless it is shown that the premises owner retained control over the work and was aware of some danger for which it did not provide a warning.