A cement truck struck and injured a flagman just outside a construction site. When the flagman sued the driver and the subcontractor that employed him, a battle began over the apportionment of fault among the plaintiff, the general contractor, and various subcontractors. The trial court ruled that the defendant subcontractor was not entitled to an apportionment of fault, as its contract appeared to make it solely responsible for worker safety. The Fourth District Court of Appeals disagreed in Continental Florida Materials, Inc. v. Kusherman, reversing the trial court’s ruling and remanding the case so the court could apportion fault among the various contractors.
The accident occurred when a concrete truck hit a flagman while driving in reverse, knocking him to the ground and running over his legs. The construction foreman, who was employed by the general contractor, had instructed the truck driver to exit the construction site, which the driver had to do in reverse. The foreman was not formally responsible for directing traffic within the site, but the general contractor was responsible for controlling street traffic around the site. The plaintiff was the only flagman directing traffic at the time, and he claimed that he was turned away from the truck and did not hear a backup indicator. By the time he saw the truck, the plaintiff claimed it was three to four feet away and he did not have time to avoid being hit.
The plaintiff sued the truck driver and the subcontractor, alleging negligence. The defendants asserted comparative negligence as an affirmative defense, meaning that they sought to have their own liability reduced by the percentage of fault that the court could apportion to the plaintiff or other parties. They listed the general contractor, the construction foreman, and the agency that provided workers for the project as non-party defendants.
The plaintiff moved for summary judgment to preclude the defendants from requesting the court to apportion fault, arguing that the subcontractor’s contract with the general contractor made the subcontractor exclusively responsible for worker safety, and that the subcontractor’s duty to operate the truck safely was non-delegable. The court agreed and ruled in the plaintiff’s favor, excluding any apportionment of fault and granting summary judgment on liability. A trial resulted in a $6.5 million verdict for the plaintiff.
The appellate court found that Florida’s comparative negligence statute, as interpreted by the Florida Supreme Court in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), requires a fact-finder to consider all possible sources of comparative fault, whether or not a party could be joined as a defendant. This, the court held, entitled the defendants to an apportionment of fault even if the contract would ultimately make them fully liable for damages.
The court also held that the contract between the general contractor and the defendant subcontractor did not limit liability to the subcontractor. Under the terms of the contract, the general contractor had final say over worker safety, and it had the ability to take action on worker safety itself and bill the cost to the subcontractor. This led the court to conclude that both fault and damages could potentially be apportioned among the defendants and non-party defendants.
The personal injury attorneys at Cohn & Smith represent the rights of people in South Florida who have been injured in construction accidents, and are skilled at analyzing the web of contractual relationships involved in many construction projects. Contact us today online, at (954) 431-8100, or at (305) 624-9186 to schedule a free and confidential consultation with one of our lawyers.
