Who is responsible for a slip and fall at a construction site in Wisconsin? Let’s assume the injured worker is and employee of a subcontractor. First, the injured worker is entitled to workers compensation from his own employer or his employer’s workers compensation insurance carrier. This is true whether the accident causing the injury was caused by the worker himself, his employer or anyone else. Workers compensation is almost always payable without regard to fault. Secondly, if there is negligence that caused the accident, then the injured worker may have a third-party claim against the responsible party as long as the responsible party was not his own employer. Generally, one cannot sue his own employer for negligence, workers compensation is his only remedy against the employer. But let’s assume the injured worker tripped on some rebar that was negligently left where it was not supposed to be by employees of the general contractor; can the injured worker make a claim against the general contractor? In most circumstances the answer is yes.
There are three Wisconsin jury instructions which best address this situation.
1022.2 NEGLIGENCE OF GENERAL CONTRACTOR: INCREASING RISK OF INJURY TO EMPLOYEE OF SUBCONTRACTOR
A general contractor who sublets all or a part of a contract to a subcontractor has a duty not to commit an affirmative act, which would increase the risk of injury to an employee of the subcontractor. An affirmative act is an act of commission that is, something that one does as opposed to an act of omission, which is something one fails to do.
1022.4 NEGLIGENCE: BUILDING CONTRACTOR
A building contractor has a duty to exercise ordinary care in the construction or remodeling of a building. This duty requires such contractor to perform work with the same degree of care and skill and to provide such suitable materials as are used and provided by contractors of reasonable prudence, skill, and judgment in similar construction.
1022.6 LIABILITY OF ONE EMPLOYING INDEPENDENT CONTRACTOR
Generally, an (owner) (principal contractor) is not responsible to a third person for the negligence of an independent contractor. However, an (owner) (a principal contractor) must exercise ordinary care to prevent injury to third persons or damage to their property if: [the work to be done is inherently dangerous] [a contract between the (owner) (principal contractor) and the third person requires that the (owner) (principal contractor) will take ordinary care to (prevent injury to the third person) (prevent damage to the property of the third person) (secure the proper performance of the work)]. Ordinary care is that degree of care which you would expect a reasonable person to use under the same or similar circumstances.
McCormick Law Office, Milwaukee, Wisconsin.
