A Win in a Construction Site Accident Case

On March 27, 2014 the Georgia Court of Appeals ruled for our client, RFM Development Company (“RFM”), in a lawsuit in which the Plaintiff was severely injured when he fell through an uncovered hole on a construction site where he was working. Seimer et al vs. RFM Development Co. et al. Nicole Leet and I represent RFM and were successful in obtaining summary judgment in the State Court of Cobb County on behalf of RFM. The Plaintiff appealed and the Court of Appeals agreed that summary judgment for RFM was appropriate.

Plaintiff Steve Pickelsimer was a temporary worker employed by Bradford Building Company (“Bradford”), a general contractor building a Walgreens Pharmacy in a shopping center being developed by RFM (the property was owned by our client and co-defendant RFM Bremen, LLC which also was granted summary judgment). RFM hired Bradford and signed a standard American Institute of Archictects (AIA) contract which contained general provisions regarding the owner’s right to stop work. The same contract indicated that Bradford would be solely responsible for, and have control over, construction means, methods, techniques, etc. Bradford was tasked with maintaining and supervising all safety precautions and programs in connection with the performance of the work. Under the contract, Bradford was required to take reasonable precautions for the safety of employees on the worksite. In his deposition, the president of RFM testified that RFM had the right to “direct” the work but that Bradford controlled it. He stated “we paid for it, but we didn’t control it.”

Mr. Pickelsimer was injured in August of 2008 when he stepped through a hole which was usually covered with an unsecured, unmarked forty pound piece of plywood. Mr. Pickelsimer fell twenty-five feet suffering a brain injury. He had no recollection of the accident or the events leading up to it.

In his lawsuit against RFM, Plaintiff contended that by contract RFM had retained sufficient control over the property so as to make it liable for this injury. The trial court found that summary judgment was appropriate because undisputed evidence, including the contract, showed that RFM had not retained any control over Bradford’s method of work; RFM had not expressly assumed responsibility for compliance with OSHA regulations; and RFM was not a “controlling employer” for purposes of the so called “multi-employer doctrine.”

The Court of Appeals agreed, finding that a property owner who surrenders possession and control of its property to an independent contractor generally is not liable for injuries sustained by the contractor’s employees on the property due to unsafe conditions. The Court of
Appeals ruled that RFM did not retain the right to direct the time, manner, methods and means of execution of the work but only contractually retained the right to insist that Bradford perform the work pursuant to the contract. Nothing in the AIA contract relied on by the Plaintiff created sufficient “control” over the work on behalf of RFM. Undisputed evidence showed that the RFM officer supervising the progress of the construction project stopped by the site infrequently and usually did not even get out of his car. Even if RFM retained the right to enter the premises for the limited purpose of checking on the progress of the work, RFM did not retain the right of supervision and Bradford was entirely free to do the work in its own way.

As to Plaintiffs argument that OSHA’s multi-employer doctrine applied and RFM was a “controlling employer” the Court of Appeals found that the Plaintiff had not provided sufficient legal argument on this issue. Although not cited by the Court of Appeals, we retained a former OSHA director as an expert who testified that RFM was not, in fact, a “controlling employer” and the multi-employer doctrine did not apply.

Please let us know if you would like a copy of this opinion.

About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.