A contractor has the opportunity to bid on new project. He/she performs due diligence by reviewing the project, analyzing the available plans, conducting meetings with the owner/developer and identifying the subcontractors to be contracted to work on the project. Satisfied that his/her company is the right one for the project, the contractor submits a bid and is ultimately awarded the project. The contractor receives the contract for the project, signs it and is officially the general contractor of record for the project. 

What are the general contractor’s responsibilities and duties to the project and to the owner? Can those responsibilities be shifted to subcontractors and/or design professionals? Those are just a few of the many questions that a contractor must ask in order to understand the full extent of potential liability in any given project. A key factor in that analysis is what are the terms of the contract that is being signed by the contractor and what are the applicable provisions for any given state?

Some States Hold That General Contractors Have a Non-Delegable Duty to Comply With the Building Code

For instance, in Florida and Maryland the qualifying agent for a business organization is jointly and equally responsible for supervision of all operations of the business organization, for all field work at all sites and for financial matters, both for the organization in general and for each specific job.¹ Likewise, as a matter of law, “contractor” means “the person who is qualified for, and is only responsible for the project contracted for . . . and means the person who . . . undertakes to, submit a bid to, or does himself . . . or by others construct . . . any building or structure for others . . . .” ²

In Florida for example, it is unlawful for any person or company to construct any building without first obtaining a permit from the appropriate enforcing agency.³ Therefore, if the general contractor pulling the building permit is in Florida, he must be a licensed general contractor. As such, the general contractor is deemed to have a non-delegable duty to construct the project in compliance with the Florida Building Code.⁴ Additionally, the Third Court of Appeals has explained:

The duty of care, with respect to the property of others, imposed by a city building permit upon a general contractor cannot be delegated to an independent sub-contractor. Rather, the law implies that both of these parties were to use a degree of skill adequate to the competent performance of this operation.⁵

However, not all states follow the non-delegable duty requirement adhered to in Florida. For example, in Indiana the long-standing rule is that a principal is generally not liable for the negligent acts of an independent contractor absent a specific contractual provision wherein the contractor contractually assumes said obligation. The location of the project is just as important as to the terms within the contract in order for a general contractor to know what obligations are being assumed beyond the merely construction of the project. 

Does the contract between the contractor and developer include additional obligations that are not typical for a general contractor, i.e., does the contract require the general contractor to review and approve of design plans? Does the contract require review and approval of design changes? Are there provisions within the contract that place duties and obligations upon a general contractor that are not adhered to in the particular jurisdiction?

Is it possible for a contract between the general contractor and the developer to include certain obligations that are not typical for a contractor or beyond those obligations imposed by law? Certainly, but the general contractor must be aware of those obligations and prepared to carry out those duties during the course of the project. As with other contracts and agreements, the general contractor and, for that matter, the developer should consult with their counsel to ensure that all terms are understood and agreed upon prior to the commencement of the project in order to avoid conflicts during the course of the project that may result in delays, defective construction and legal battles.