Waitress' Fall Raises Questions about Contractor's Negligence

Louisville, KY (WorkersCompensation.com) – When construction is completed, the contractor usually isn’t held liable for injuries that occur after the job is done.

However, in Windus v. Buffalo Construction Inc., No. 2020-CA-1035-MR (Ky. Ct. App. 05/20/22) a question arose as to whether a waitress’ injury related to construction work at the restaurant where she worked showed that the building contractor was negligent.

The waitress tripped on a raised drain and pipe located on the floor in front of counter. She fell and experienced injuries to her right arm, elbow, and face. As a result, the waitress underwent four surgeries on her right arm and elbow and was unable to work for six months.

The general manager of the restaurant reported that he complained to the contractor’s foreman that the drain and pipe area was a hazard and that the foreman agreed to make the necessary modifications, but they did not occur prior to the waitress’ injury. Later, the contractor placed metal strips and caution tape around the drain and pipe.

She sued the building contractor, claiming it was responsible for the drain’s installation and maintenance. The court ruled in favor of the contractor, prompting the waitress to appeal.

Generally, possessors of business premises have a nondelegable, affirmative duty to protect invitees – like workers – from unreasonably dangerous conditions on the premises. The contractor was not the owner or possessor of the premises.

However, the court pointed out that a “fair application” of four previous cases allowed for an interpretation of the law under which a building contractor could be held liable for negligence resulting from work performed.

Because of that, the court reasoned that Kentucky law did not “automatically insulate” the contractor in the waitress’ case from potential liability for her injuries. As a result, the court sent the case back for trial and the issue of whether the contractor’s negligence caused the waitress’ injury.

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