Can a general contractor control how the subcontractor runs his business?
Full Question:
Answer:
The answer depends on how much control the general contractor retains in the agreement he has with his subcontractors. It would be recommended that you examine the details of your contract with the general contractor (GC) to determine how much control was retained.
Independent contractors are not employees which means that their work is not completely in the control over those who hire them. Usually this issue is raised in the context of whether or not the GC is liable for the injuries of others and acts of the subcontractor.
It is well settled in the law that a party can prove the right to control in two ways: first, by evidence of a contractual agreement that explicitly assigns the premises owner their a right to control; and second, in the absence of a contractual agreement, by evidence that the premises owner actually exercised control in the manner in which the independent contractor's work was performed. For a general contractor to be liable for its independent contractor's acts, it must have the right to control the means, methods, or details of the independent contractor's work. Further, the control must relate to the injury the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done. Determining whether a contract gives a right of control is generally a question of law for the court rather than a question of fact for the jury.
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts §414 (1965).
The “retained control” element is explained in comment (c) to §414, which states:
“In order for the rule stated in this section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Restatement (Second) of Torts §414, comment (c) at 388 (1965). (Emphasis added.)
