We rely on state and local governments for all kinds of public works – parks, roads, public transportation, etc. Those works, though planned and orchestrated by governing bodies, are often ultimately constructed and carried out by third party individuals and private entities. So, when someone is injured due to such work, they usually turn to both the government entity and the private party for compensation. Depending on the circumstances, the third-party contractor may have absolute defenses to liability.
Indeed, in Georgia, "a contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless that damage or injury results from the contractor's negligence or willful tort."1 In these cases, a contractor will not be found liable "if it appears that the contractor has followed the plans and directions of his employer."2
This principle can be applied to bar a wide range general liability claims against third-party contractors. For instance, in C.W. Matthews Contracting Co., Inc. v. Marasco, a driver sued the DOT and a private contractor after the driver's side view mirror struck a sign that the contractor installed at the DOT's instruction.3 The Court of Appeals granted summary judgment for the contractor because there was no evidence that the contractor negligently installed the sign, and that, instead, it had simply adhered to the DOT's instructions, including the precise location of where the sign was to be erected.4 The Court further confirmed that the issue of whether the location of the sign – which was undoubtedly chosen by the DOT – was negligent bore no relevance to the contractor's dispositive defenses.5 It was simply following orders from the DOT.6
Of course, this is not to say that contracting for a government project automatically bars a third party from any and all liability. Indeed, liability may lie where injury appears to have resulted not from improper design on the government entity's part, but from the third party's negligence in carrying out those designs. 7
The defining question is: what act is the alleged cause of the plaintiff's damages? Consider the following hypothetical:
Homeowner sues Contractor and City after Contractor, pursuant to City's instructions, cut down a 150-year-old tree in Homeowner's yard (City had deemed the tree a public nuisance). Assume that in Scenario A, Homeowner only claims damages for the loss of his beautiful tree. Conversely, in Scenario B, Homeowner claims damages for the loss of his house, which, in this scenario, was destroyed when the tree landed on top of it.
In Scenario A, Contractor should have no liability. The City instructed it to cut down a specific tree, and it performed its duty without negligence. In Scenario B, however, Contractor may be liable, since it appears to have negligently felled the tree, causing it to land on Homeowner's house.
As with all cases, the applicability of this potentially dispositive defense will come down to the underlying facts. Attorneys should keep this principle in mind when tasked with defending work performed by a subcontractor pursuant to a government entity plans and instructions.
Footnotes
1. C.W. Matthews Contracting Co., Inc. v. Marasco, 184 Ga.App. 150, 151 (1987) (emphasis added).
2. Id. at 150.
3. 184 Ga.App. at 150.
4. Id. at 151.
5. Id. ("pretermitting the questions of whether the sign was negligently placed and whether the placement of the sign was the proximate cause of appellee's injuries...").
6. Id.
7. See Hollis & Span, Inc. v. Hopkins, 301 Ga.App. 29 (2009) (issue of fact as to whether independent contractor negligently performed construction of handicap ramp precluded summary judgment).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.