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Construction and Procurement Blog

Contractor’s Risk of Personal Injury Claims

In an appellate opinion released June 28, 2013, a contractor and its subcontractor were found not liable for injuries sustained by a personal-injury plaintiff.  The court found that Plaintiff had presented no evidence that Contractor and Subcontractor failed to properly perform their work, or that they should have discovered the defect that caused Plaintiff’s injury.

The case involved renovations at the federal building in Atlanta by Contractor and Subcontractor.  After the project was completed, Plaintiff was injured when her heel stepped into a depression in the carpet in a hallway.  The carpet was then removed, and an inspection revealed a “Walker” duct that was not covered with a steel plate.  It was also filled with construction debris.

Plaintiff brought suit against Contractor and Subcontractor based on negligence.  She contended that Contractor and Subcontractor failed to properly inspect the flooring and failed to install a steel plate over the Walker duct. 

Employees of Contractor and Subcontractor testified that they inspected the floor, and that if any Walker ducts were uncovered, they would have covered them.  Plaintiff did not refute this testimony with contrary evidence.  As a result, the trial court granted Contractor’s and Subcontractor’s motion for summary judgment.

On appeal, Plaintiff’s primary argument was that, based on the evidence of the Walker duct’s condition, a jury would have inferred that Contractor and Subcontractor caused her injuries.  The fact that the duct was filled with construction debris and loose concrete indicates that the hole was not covered, Plaintiff argued. 

The Court of Appeals upheld the trial court’s judgment in favor of Contractor and Subcontractor.  The inference relied upon by Plaintiff was “purely speculative and not supported by any evidence.”  In addition, the size of the hole, and the fact that the hallway had been used for months before Plaintiff’s injury, provided further evidence to refute the proffered inference.


Opinions like this one are not common.  Usually a trial court will deny summary judgment if there is evidence that tends to support the non-movant’s claim, construing the evidence in favor of the non-movant.  So a plaintiff that relies on a reasonable inference from the evidence may overcome the defendant’s motion for summary judgment.  In this case, however, the courts were not willing to accept the plaintiff’s inference.   

Even though the case resulted in a favorable judgment for the contractor and subcontractor, others should not take it as reason to be any less diligent in documenting concealed conditions.  While there is no way to predict all scenarios that may give rise to liability, especially after a project is occupied, contractors and subcontractors should give some thought to precautionary actions to avoid liability in these cases. 

For instance, contractors and subcontractors should consider where their risk of personal-injury liability is greatest.  Then, they could develop a plan to mitigate the risk, such as through video documentation of conditions — especially conditions that will be covered by finished work. 


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