Construction Defects – General Contractor Cannot Escape Liability By Blaming Its Subcontractors
Colorado law prevents builders and general contractors from avoiding
liability for damages resulting from a breach of contract by their subcontractors.
Simpson v. Digiallonardo, 488 P.2d 208, 210 (Colo. App. 1971). In an
unpublished opinion, the Colorado Court of Appeals held that parties can be
responsible for damages caused by the negligence of an independent contractor.
Weaver v. Harmon, 508 P.2d 418, 420 (Colo. App. 1972). Several district courts have relied on the holding in the construction defect context.
The Colorado General Assembly enacted legislation requiring businesses to perform their work under a nondelegable duty of care. See C.R.S. § 13-21-111.5(6)(a)(IV) (“It is the intent of the general assembly that the duty of a business to be responsible for its own negligence be
nondelegable.”) Nothing in the statute suggests that the law is inapplicable to the
construction industry.
Generally when a party hires an independent contractor, the hiring party is not liable for the independent contractor’s negligence. Vikell Investors Pac., Inc. v. Hampden, Ltd., 946 P.2d
589, 595 (Colo. App. 1997). The nondelegable duty doctrine, however, creates
an exception to the independent contractor rule. Daly v. Aspen Center for
Women’s Health, Inc., 134 P.3d 450, 454 (Colo. App. 2005). Consequently, the
nondelegable duty of care imposed upon businesses by the General Assembly
imputes vicarious liability to a business for the negligence of its independent
contractors. Springer v. City and County of Denver, 13 P.3d 794, 804 (Colo.
2000). Courts use several factors to determine whether a party is an independent
contractor, the key factor being the degree of control the hiring party exercises
over the hired party. Perkins v. RTD, 907 P.2d 672, 674-75 (Colo. App. 1996),
cert. dism’d (1996).
The general contractor assumes the nondelegable duty to perform construction on a project without negligence. The general contractor can not avoid liability
by subcontracting portions of the work it undertook to others – even if those
others are “independent contractors”. Simpson and Weaver support the finding that builders,
developers and contractors owe a nondelegable duty of care and may be held
vicariously liable for the negligence of the independent contractors they hire.
C.R.S. § 13-21-111.5(6)(a)(IV) explicitly imposes a nondelegable duty upon
businesses to perform work with care.
Each of the subcontractors and sub-subcontractors also haave nondelegable duty with respect to their scope of work. The Homeowner claiming construction defects may well have a valid cause of action against any such individuals or entities. However, that does not mean that the Homeowner is required to proceed against all or any subset of them. However, the General Contractor may sue its own subcontractors who may be responsible for the negligence giving rise to the damages for which the Homeowner is seeking to hold the General Contractor liable – even if the Homeowner elects not to pursue such a claim.