Stick to Supervision: Best Practices For General Contractors To Avoid Liability Under The “Doctrine of Active Participation”

It has long been established under Ohio law that a construction site is an inherently dangerous workplace and a subcontractor who works at a construction site is engaging in inherently dangerous work.[1]  Generally, Ohio law imposes no duty upon a general contractor to render a workplace safe for its subcontractors who are engaged in inherently dangerous work.[2]  However, the above general rule is not unconditional.  The primary exception to it, commonly referred to as the doctrine of active participation, provides an avenue for a general contractor to nevertheless be held liable for the injury or death of an employee of a subcontractor sustained at the construction site.

Under Ohio law, a general contractor has no duty to render a workplace safe for its independent subcontractors engaged in inherently dangerous work, unless it actively participates in, rather than merely supervises, the subcontractor’s work.[3] Such active participation will be found where the general contractor either (1) directed the activity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee's injury, or (2) retains or exercises control over a critical variable in the workplace.[4]

Ohio courts have provided substantial guidance over the past 40 years and counting on what is considered “active participation” by a general contractor in the inherently dangerous work of its subcontractors. Ohio courts have primarily issued opinions designed to limit the exception’s application and afford general contractors some understanding of what to avoid doing with respect to its subcontractors’ work.

The following are some subcontract “best practices” for a general contractor to help avoid liability to its subcontractors’ employees under the doctrine of active participation.

1. Provide the Duty to Control and Ensure Workplace Safety Is On Subcontractor Alone - While this may seem obvious, such a subcontract provision is considered by Ohio courts in determining whether or not control was retained or exercised by a general contractor over workplace safety.  Such evidence was considered in a recent Ohio decision that was favorable to the general contractor when determining if it retained or exercised control over a critical variable in the workspace.[5] By establishing this clear contractual duty for the subcontractor, and more importantly not acting contrary to said duty, a general contractor can avoid liability under the doctrine of active participation.

2. Provide That Subcontractor Alone Is Responsible For Means and Methods to Accomplish Their Work - Similar to above, this standard language in a subcontract is often a key piece of evidence favorable to a general contractor to avoid liability under the doctrine of active participation.  By placing a contractual duty on the subcontractor to have exclusive control over the means and methods to accomplish its work, Ohio courts will presume that, absent evidence of a general contractor affirmative exercising control over the work, that subcontractor alone had full control over the critical acts required to complete the work.  The provision further can be instrumental in a court’s determination of whether the general contractor gave or denied permission for the critical acts in the subcontractor’s work which lead to its employee’s injury.[6]

3. Explicitly State And Strictly Follow “Supervisory” Duties of General Contractor - The primary reason Ohio courts have consistently held that liability under the doctrine is not triggered merely by virtue of a general contractor’s supervisory capacity over its subcontractor’s work is the subcontract definition of “supervisory” duties.[7]  However, given the vast amount of activities that can fall under “supervisory capacity” that may also potentially trigger liability, Ohio courts have consistently held that contractual provisions providing for a general contractor's retention of the authority to monitor and coordinate activities of subcontractors and the retention of control over safety policies and procedures do not rise to the level of “active participation.”[8]

Conclusion
While not an exhaustive list, the foregoing constitute several key subcontract provisions that were ultimately considered by Ohio courts tasked with determining if the doctrine of “active participation” applied and exposed the general contractor to liability.  While these provisions will aid in protecting a general contractor from liability, strict adherence to these provisions by its employees while on site will also be important to preventing the application of the doctrine of active participation.