Federal: Issue of Fact Regarding Control Means Tort Action May Proceed Against General Contractor

Where a subcontractor’s worker sustained serious injuries when he attempted to use a grinder—owned by the project’s contactor and which did not have a required safety guard—and where there was a conflict in the evidence as to whether the injured worker was subject to the direct control of any of the contractor’s supervising personnel, factual issues as to whether the worker was both the employee of the contractor and the subcontractor existed, held a federal district court, applying Ohio law. Accordingly, summary judgment was not appropriate. The court stressed that under Ohio law, whether someone was an employee was ordinarily an issue to be decided by the trier of fact. Here the evidence tended to show that the subcontractor hired the worker, provided paperwork to him, withheld taxes from his wages, and maintained a workers’ compensation policy that covered the worker. That there was a close corporate relationship between the contractor and subcontractor—the subcontractor had been created to bid on non-union projects on behalf of the contractor—did not control. While the contractor had effective control over the project, it did not necessarily follow that it exerted the necessary control over the subcontractor’s worker to make him a borrowed servant.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Wilson v. Wintrow Constr. Corp., 2016 U.S. Dist. LEXIS 6438 (S.D. Ohio, Jan. 20, 2016) [2016 U.S. Dist. LEXIS 6438 (S.D. Ohio, Jan. 20, 2016)]

See generally Larson’s Workers’ Compensation Law, § 111.04 [111.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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