The answer to this question is not as straightforward as it may seem. For example, if a case involves a specific situation such as a concrete wall falling on a salesperson on a construction site, a painter falling through an unguarded skylight, a collapsing stairway, or part of a building literally falling off and striking you, the relationship between the property owner, the general contractor, the subcontractor, and the injured victim must be examined. As a general rule, an employer is not responsible for the torts of his employee when such employee is employed as an independent contractor. O.C.G.A. 51-2-4. However, O.C.G.A. 51-2-5 provides several exceptions to this general rule: (1) When the work is wrongful in itself or, if done in an ordinary manner, would result in a nuisance; (2) If, according to the employer's previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed; (3) If the wrongful act is the violation of a duty imposed by express contract upon the employer; (4) If the wrongful act is the violation of a duty imposed by statute; (5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of a master and servant or so that an injury results which is traceable to his interference; or (6) If the employer ratifies the unauthorized wrong of the independent contractor. O.C.G.A. 51-2-5 does not represent an exclusive list of exceptions to the limitation of liability, so, there are other exceptions which might also exist. Peachtree-Cain Co. v. McBee, 254 Ga. 91 at 93-94 (1985). In order to determine who is responsible, you must first determine whether O.C.G.A. 51-2-4 applies and whether there are any exceptions. For example, in one of the more frequently encountered situations a small company or homeowner hires a general contractor to perform construction work. The general contractor then hires a subcontractor to install certain items such as Windows, staircases, or exterior ladders. In such cases, the general contractor owes a duty to the company or homeowner which he may not escape from simply because the general contractor hired a subcontractor. Numerous Georgia cases have been decided establishing this rule. See, for example, Crispin's enterprise Inc. V. Halstead at all, 209 Ga. App. 133 (1993) where the Georgia Court of Appeals held that a commercial construction company could not escape liability for a defective concrete wall simply because the general contractor hired a subcontractor to install the retaining wall. In summary, you should carefully look at the contractual relationship between the builder and the contractor, or subcontractor involved and the nature of the work being performed to determine who will ultimately bear responsibility for the negligent act and the injury caused.
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