Quick AnswerIn many Delaware construction cases, an injured subcontractor’s employee may be able to pursue a third-party negligence claim against the general contractor in addition to receiving workers’ compensation from the direct employer. Whether the GC can be sued depends on the degree of control it retained over safety, the contract terms, and the specific facts of the accident.
Workers’ compensation is usually the only remedy you have against your direct employer. But construction sites involve many companies — general contractors, subcontractors, suppliers, owners — and a third-party claim against one of them may be available even when workers’ compensation covers your medical bills and lost wages.
The Detailed Answer
Delaware follows the rule that workers’ compensation is the exclusive remedy against your employer for a workplace injury. That bar does not extend to other companies on the job site. If a general contractor’s negligence contributed to your injury, you may be able to pursue a separate civil claim against the GC.
The Retained-Control Doctrine
Delaware courts have long recognized that a general contractor who retains control over the means and methods of a subcontractor’s work — particularly over safety — can be held liable when that control is exercised negligently. The analysis looks at:
- The contract between the GC and the subcontractor
- Site-safety policies and who enforced them
- Whether the GC held safety meetings or issued safety directives
- Whether the GC controlled access to the area where the injury occurred
- Who supplied the equipment or scaffolding involved
Non-Delegable Duties
Some duties cannot be delegated to a subcontractor. A general contractor that fails to coordinate trades, fails to address known hazards on common areas, or fails to enforce site-wide safety rules may face direct liability for those failures regardless of what its subcontract says.
OSHA’s Multi-Employer Doctrine
Under OSHA’s multi-employer worksite policy, a GC can be cited as a “controlling employer” for hazards created by subcontractors. While an OSHA citation does not by itself create civil liability, a citation issued to the GC for a violation that injured you may be powerful evidence in a Delaware construction injury claim.
What This Means for Your Case
If you were injured working as a subcontractor’s employee on a Delaware project, you may have two parallel paths: a workers’ compensation claim against your direct employer and a third-party civil claim against the general contractor or another subcontractor whose negligence contributed. The civil claim is governed by Delaware’s two-year personal injury statute of limitations under 10 Del. C. § 8119. Comparative negligence rules under 10 Del. C. § 8132 apply, which means your recovery may be reduced by your share of fault, but you can still recover so long as your fault does not exceed 50%.
Related Questions
Q: Will a third-party claim affect my workers’ compensation?
The workers’ compensation carrier may have a subrogation lien against any third-party recovery — meaning the carrier can recover what it paid out from your settlement or verdict. An attorney can help negotiate the lien.
Q: What if the GC subcontracted out all the safety work?
Subcontracting safety responsibility does not necessarily eliminate the GC’s duties. Courts look at what the GC actually did, not just what the contract said.
Q: Can I sue another subcontractor on the same project?
Yes. If a different subcontractor’s negligence — like an electrician leaving a live wire exposed — caused your injury, you may have a third-party claim against that subcontractor’s company.
When to Talk to a Delaware Construction Lawyer
Third-party construction claims involve careful contract analysis, OSHA review, and rapid evidence preservation. Joseph M. Jachetti has experience handling Delaware construction injury claims and worked as an insurance claims adjuster for ten years before joining the Delaware Bar. Read more about Joseph’s background, our construction accident practice, and related topics like workers’ compensation and scaffolding accidents.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.