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Can a Subcontractor Employee File a Personal Injury Lawsuit Against the General Contractor?

Can Subcontractor Employee File a Personal Injury LawsuitThe general rule in Illinois is that workers’ compensation is an injured employee’s sole remedy for workplace injuries unless certain very limited exceptions apply. 820 ILCS 305/5 states that there is no right to recover for these injuries or death “other than the compensation herein provided.” Of course, the compensation that the statute is referring to is workers’ compensation. However, there may be some scenarios under which an injured employee can file a negligence lawsuit, namely when someone else is responsible for their injury.

It is common in the construction industry for there to be a general contractor and multiple subcontractors on a worksite. It is a standard business practice. Each entity is responsible for different parts of the job. As a result, there are hundreds of construction workers on a site answering to different people. However, they only answer to their direct employer.

In Illinois, the laws are very strict about workers being required to stay within the workers’ compensation system. There are very limited exceptions to the rule that workers’ compensation benefits are the sole remedy for injured workers. In Illinois, there is not even an exception for gross negligence as there is in some states. Essentially, the employer has to act intentionally to be liable in a lawsuit. Otherwise, workers’ compensation benefits are the exclusive remedy for a worker’s injury.

An Injured Subcontractor Should Always Explore a Personal Injury Lawsuit

First, for some background, it is important to know why an employee of a subcontractor would prefer to file a negligence lawsuit instead of a workers’ compensation claim. The short answer is that they can get more money in compensation. Workers’ compensation claims do not pay for pain and suffering and generally pay you lost wages and medical bills.

There are a couple of different scenarios that can lead to a negligence lawsuit for a workplace injury. They involve situations in which a general contractor’s employee can sue a subcontractor. Alternatively, a subcontractor’s employee may be able to file a negligence lawsuit against the general contractor.

Construction sites may usually not just be staffed with employees of the general contractor. Instead, the general contractor may hire various subcontractors to handle certain discrete tasks. There may be numerous different companies working on-site, each with control over their own parts of the job. Many companies have their own employees. They each work for their statutory employer.

A subcontractor’s employee does not work for the general contractor and vice versa. Normally, the remedy that the Illinois Workers’ Compensation Act requires when a worker gets hurt is that they file a lawsuit against their own employer for their injuries.

Workers’ Compensation Cases Have Challenges When There Are Multiple Employers on a Construction Site

The interrelationship of the general and subcontractor can make liability complicated in Illinois injury cases. In some instances, that may actually work to the injured employee’s advantage.

One scenario under which there may be a possible negligence lawsuit is when the subcontractor’s employee is injured, but it is due to the negligence of someone else. However, even in this case, the rule of thumb is that the general contractor is not liable to an employee independent contractor that it employs at the site.

The reason for this general rule is that the subcontractor’s employee works for the subcontractor who has the responsibility for overseeing their work conditions. In other words, the general contractor retains no control over the site that would get in the way of the normal employer/employee relationship of the independent contractor.

How Retained Control Impacts Your Case

The concept of “retained control” is what would possibly make a general contractor liable for the injuries suffered by a subcontractor’s employee.   In Illinois, the retained control exception to workers’ compensation laws is not found specifically in Illinois law. Instead, it happens because of a common law principle that takes a subcontractor employee and makes them into an independent contractor if someone other than their employer can direct their work.

This will almost always be an issue when a subcontractor’s employee is injured on a job site. The Illinois Supreme Court weighed in on this matter in 2016 in its decision in the case of Carney v. Union Pacific R. Co. In this case, a subcontractor employee was injured on the job and sued the general contractor. The Illinois Supreme Court held that the usual principle is that the general contractor would not be liable. However, when they exercise some control over the subcontractor’s work, they can assume responsibility for injuries caused by subcontractors.

This could occur when the general contractor retains control of the site through a foreman who oversees the entire project. It could also occur when the general contractor issues safety directives to the subcontractors on the site under threat of termination.

It is important to understand the concept of retained control because that is also the basis of when a general contractor could be liable to the subcontractor’s employees in a negligence claim. When the general contractor retains control over the site, it must exercise control with reasonable care.

The way that you can think of it is this. The general contractor generally does not owe the duty of care to the employees of the subcontractor. However, the minute it assumes control over the site or aspects of the subcontractor’s work, they form a relationship in which they owe this duty of care. This is what is the beginning of any negligence lawsuit.

When there is an incident at a job site, while the court may look at the contract between the general contractor and the subcontractor. However, the court will pay more attention to what actually happened on the job site.

This is exactly what happened in the case of Larsen v. Ephraim. Here, the general contractor accepted responsibility for making sure that a certain roof was cleared of snow. Then, the general contractor’s foreman asked one of the subcontractor’s employees to go onto the roof, even though the contract between the general contractor and the subcontractor excluded work in winter conditions. When the subcontractor’s employee slipped on the roof and was injured, the court held that the general contractor had retained control of the site and was liable in a negligence lawsuit.

As you can see, whether you can sue the general contractor for negligence is a complicated issue. This is where an Illinois workers’ compensation lawyer can help you decide whether you can try to work outside of the workers’ compensation system to try to get a larger verdict or settlement. This will benefit you because you can receive more compensation in a negligence lawsuit than you would in a workers’ compensation claim.

Contact the attorneys at Rosenfeld Injury Lawyers for legal advice about whether your injury may fall outside typical workers’ compensation coverage. Even if you cannot file a lawsuit for your construction project injury, we can help you file a claim under your employer’s workers’ compensation insurance.