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Chuck Boyk
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If a contractor injures himself at your home, are you responsible?

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Toledo, Ohio car accident attorney Dale Emch answers general legal questions relating to many subjects including car accidents, personal injury, workers compensation, and trucking accidents, in his “Legal Briefs” column. Attorney Emch’s column can be found every other Sunday in the Toledo Blade.

DEAR DALE: Last summer I had a new roof put on my house. I asked several contractors for estimates. One of the contractors, to my surprise, decided to crawl out a third-floor window onto a very high, very narrow roof ledge to measure the roof in order to write his estimate. Looking back, I wonder what would have happened if he had fallen and was not covered by Workers’ Compensation and other liability insurance. Also, what if an uninsured contractor fell from my roof onto my neighbor’s driveway at the very spot where her toddler grandson was strapped in a car seat and they both suffered injuries or death?

Answer: Wow. With the hypothetical situations thrown into your question, this reminds me of a law school exam.

Let’s tackle the first issue you’ve raised, which is whether you would be liable for any injuries the roofer who crawled out on to your roof might have sustained had he fallen. I don’t think Workers’ Compensation is a factor here from your point of view. First of all, the roofer wasn’t an employee of yours. You hadn’t hired him for any job – he was simply there to provide an estimate. But, let’s say you had hired him and the fall happened while he was putting on a new roof for you. I still don’t think you’d have any liability.

This guy likely would be deemed an independent contractor rather than an employee. In Ohio, a homeowner does not have a special responsibility toward an independent contractor if the work is inherently dangerous. A lot of cases talk about how to determine whether a job is inherently dangerous, but I think we can agree that roofing in a fairly dangerous occupation.

The equation changes if the homeowner actively participates in the contractor’s work. Active participation has to be more than generally supervising a project. The homeowner would have to exercise a fair amount of control over the specifics of how a job is done as opposed to simply hiring someone to complete a project. If the homeowner or a general contractor actively participates in the work, they could be deemed an employer.

So, if I were the judge in this case, I’d find that the roofing job was inherently dangerous, which eliminates any special responsibility you would owe to the roofer. And unless you were up there telling the roofer what nails to use, how to place the shingles, and blowing the lunch whistle, I’d find that you hadn’t actively participated in the work.

The equation would change if you sent the guy up to the roof knowing that there was little supporting the shingles in one area and that someone walking on that area would fall through. Failing to warn of that condition would be negligent unless the dangerous condition were so open and obvious that the roofer would be reasonably expected to discover it on his own.

OK, we’ve knocked off that part of the exam question. Let’s look at the twist you’ve added where the roofer falls onto your poor unsuspecting neighbor – and her grandson, no less. I still don’t see how any liability would attach to you in this circumstance.

Let’s assume that the roofer knows the grandmother is out there with the toddler and he decides to dance a little jig on your steep roof for their entertainment before getting down to the business at hand, causing him to take his fateful tumble. I think it’s safe to say that his conduct would be negligent, but I don’t see that negligence attaching to you.

You certainly wouldn’t have told him to dance the jig, it’s outside of his course of employment, and you probably wouldn’t have known about your neighbor and her grandchild waiting in the driveway to meet their untimely demise.

The only thing Granny and the kid – or their estates, since I killed them off when I expanded your hypothetical – might get would be some money from the medical payments coverage of your homeowner’s policy. That coverage, which typically provides a relatively small amount of money, is available without regard to liability.