Control vs. Non-Delegable Duty in Construction Cases | GoSuits

• What do “control” and “non-delegable duty” mean in construction site liability?
• Why does the difference between control and non-delegable duty matter for your construction accident lawsuit?
• How does the retained control doctrine work in Texas, California, and Illinois?
• What are non-delegable duties in construction cases, and what are common examples?
• Do OSHA violations create civil liability against owners or general contractors?
• Is a construction injury a premises liability case or a contractor negligence case?
• Who can you sue in a third-party construction injury or wrongful death case?
• What evidence proves control or a non-delegable duty?
• What defenses do owners and general contractors raise in control vs. non-delegable duty disputes?
• What state-specific rules apply in TX, CA, and IL?
• What deadlines apply to construction injury and wrongful death claims in TX, CA, and IL?
• How do insurance and indemnity clauses affect your construction claim?
• What steps should you take after a construction site injury in Texas, California, or Illinois?
• How can GoSuits help with a control vs. non-delegable duty case?
• What authoritative sources were used for this guide?

What do “control” and “non-delegable duty” mean in construction site liability?

On construction projects, multiple companies work side-by-side: owners, developers, general contractors (GCs), subcontractors, and suppliers. When a serious injury occurs, courts look first at “who controlled” the work that led to the harm, and whether any “non-delegable duty” made an owner or GC legally responsible even if another company was performing the task.

Control (often called the retained control doctrine) addresses whether an owner or GC kept the right to direct the methods, means, or safety of an independent contractor’s work. If a hirer retained control and negligently exercised it, civil liability may follow. This concept traces to the Restatement (Second) of Torts § 414 and is widely recognized in state courts.

Non-delegable duty is different. It means the law imposes a duty on a party (often a landowner or GC) that cannot be avoided by hiring an independent contractor. If a duty is non-delegable, the hirer can be legally responsible for the contractor’s negligence even without day-to-day control. Examples can include certain statutory duties (like traffic control in the right-of-way), inherently dangerous activities, and some premises liability duties. See LII’s explanations of independent contractor, vicarious liability, and nondelegable duty.

Because “control vs. non-delegable duty” can determine who pays damages and how insurance applies, it is central to many construction site liability disputes in Texas, California, and Illinois.

Why does the difference between control and non-delegable duty matter for your construction accident lawsuit?

The difference can shape both the legal theory and the practical path of your claim:

• Who can be sued: Control may create direct negligence liability against the hirer for how it directed the work. A non-delegable duty can create vicarious liability for the contractor’s negligence, expanding potential defendants and insurance coverage.
• Evidence needed: Control claims often hinge on contracts, site practices, and safety directives. Non-delegable duty claims focus on statutes, ordinances, jury instructions, and categories of duties the law will not allow a party to shift to a contractor.
• Defenses: Defendants often argue they did not control the means and methods and that no non-delegable duty applies. State-specific rules can limit claims by injured workers against hirers in some circumstances.

Construction is one of the nation’s most dangerous industries. OSHA reports construction continues to account for a substantial share of workplace fatalities each year, and highlights “Focus Four” hazards (falls, struck-by, caught-in/between, electrocutions) as leading killers (OSHA Commonly Used Statistics). According to the U.S. Bureau of Labor Statistics, there were 5,486 fatal work injuries across all industries in 2022, and construction is consistently among the sectors with the highest number of fatal injuries (BLS CFOI 2022 Summary).

Because injuries can be catastrophic, sorting out construction site liability early, particularly whether the case turns on control vs. non-delegable duty, can help you and your legal team identify the right defendants, preserve evidence, and protect your rights in Texas (Houston, Dallas, Austin, San Antonio), California (Los Angeles, San Diego, San Jose, San Francisco), and Illinois (Chicago and statewide).

How does the retained control doctrine work in Texas, California, and Illinois?

Retained control asks a simple question with complex facts: did the owner or GC keep the right to control the manner and means of the contractor’s work, or exercise that control in a way that contributed to the injury?

How does Texas apply retained control (and Chapter 95)?

Texas follows the retained control doctrine derived from the Restatement (Second) of Torts § 414. The Texas Supreme Court has long recognized that a party who hires an independent contractor ordinarily is not liable for the contractor’s negligence, but liability can arise when the hirer retains control over the contractor’s work and negligently exercises that control. Texas also has a specific statute—Texas Civil Practice and Remedies Code Chapter 95—that can limit claims by an independent contractor or its employees against a property owner for injuries arising from the condition or use of an improvement to real property if the contractor was in control of the work. Under Chapter 95, a plaintiff generally must show the owner had actual knowledge of the danger and retained some control over the work that caused the injury.

Key takeaways for Texas retained control disputes:

• Contract language matters: Provisions that give the owner/GC authority over “methods and means” or safety can support retained control, but Texas courts distinguish between general oversight and control of operative details.
• Actual site practices count: If the owner or GC issues specific work directives, dictates safety procedures, or supervises the day-to-day methods beyond general oversight, retained control is more likely to be found.
• Chapter 95 filters claims: For many claims against property owners by contractor employees in Texas, Chapter 95 requires proof of both knowledge and control; this is a frequent defense argument.

How does California apply retained control after Privette?

California’s “Privette doctrine” generally provides that a hirer (like a property owner or GC) is not liable for injuries to the employees of an independent contractor. But California recognizes several exceptions that bring control back into play. One leading exception allows liability when the hirer retains control over safety or work methods and negligently exercises that control in a manner that affirmatively contributes to the injury. Other recognized exceptions include negligent provision of unsafe equipment and certain concealed premises hazards encountered by the contractor.

California’s approach can be summarized:

• General rule of no hirer liability to the contractor’s employees, subject to exceptions grounded in retained control and other narrow circumstances.
• Affirmative contribution requirement: For retained control, California courts look for affirmative acts or directions by the hirer that contributed to the harm.
• Non-delegable duties contracted to the contractor: California case law has held that, in many situations, workplace safety duties are delegated to the independent contractor, affecting non-delegable duty arguments.

California negligence law is rooted in Civil Code § 1714, which imposes a general duty of care and interacts with these construction-specific doctrines.

How does Illinois apply retained control under Section 414?

Illinois recognizes the Restatement (Second) of Torts § 414 retained control doctrine. An owner or general contractor that entrusts work to an independent contractor can be liable if it retains supervisory control over the operative details of the work and fails to exercise that control with reasonable care. Illinois courts distinguish between general oversight (scheduling, inspecting for progress, ensuring contract compliance) and control over the means and methods, with liability more likely when the latter is present.

In Illinois, retained control often turns on:

• Contractual rights and safety authority: Clauses requiring the GC to implement site-wide safety or giving stop-work authority can support a retained control theory when combined with evidence of how those rights were exercised.
• On-site supervision and directions: Daily directives about specific methods or safety measures, toolbox talks with mandatory rules, or direct supervision of how to perform a task can weigh in favor of retained control.
• Interplay with premises liability: Illinois separately imposes duties on possessors of land by statute in the Premises Liability Act (740 ILCS 130), which can overlap where a hazardous condition of the land is at issue.

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What are non-delegable duties in construction cases, and what are common examples?

A non-delegable duty is a legal obligation that remains with the hirer even if an independent contractor performs the work. If a duty is non-delegable, the hirer can be liable for the contractor’s negligence related to that duty. The concept is discussed in LII’s overview of nondelegable duty and in doctrines of vicarious liability.

Common contexts where non-delegable duties are argued include:

• Statutory or regulatory duties: Some statutes impose duties that courts treat as non-delegable for civil liability. On road or utility projects, traffic control requirements, signage, and barricading often reference the federal Manual on Uniform Traffic Control Devices (MUTCD). If a jurisdiction treats those obligations as non-delegable for an owner or prime contractor, the hirer can face liability when a member of the public is harmed.
• Work posing peculiar risks: Some states treat inherently dangerous or peculiar risk activities as grounds for a non-delegable duty. The details and availability of this doctrine vary by jurisdiction.
• Premises liability duties: Possessors of land generally owe a duty to keep premises reasonably safe for lawful entrants. While many states allow delegation of tasks, certain premises duties may be treated as non-delegable in specific circumstances (e.g., safeguarding open trenches accessible to the public or maintaining safe access routes shared by multiple trades).
• Public way and utility responsibilities: Where work encroaches on sidewalks, roads, or public rights-of-way, statutes or ordinances may place ultimate responsibility on the permittee or project owner, which can support a non-delegable duty theory if harm results from inadequate warnings or protections.

Non-delegable duty theories are nuanced and state-specific. California, for example, has narrowed some non-delegable duty arguments for injuries to a contractor’s own employees, while claims by third parties (like passersby) may be treated differently. Texas and Illinois approaches depend on how courts interpret statutes, premises liability duties, and Restatement provisions in each context.

Do OSHA violations create civil liability against owners or general contractors?

OSHA creates workplace safety standards. The federal Occupational Safety and Health Act’s General Duty Clause (29 U.S.C. § 654) requires employers to provide a workplace free from recognized hazards and to comply with OSHA standards. On multi-employer construction sites, OSHA can cite more than one employer under its Multi-Employer Citation Policy (CPL 02-00-124), including “controlling,” “creating,” “exposing,” and “correcting” employers.

For civil lawsuits:

• No direct private OSHA cause of action: The OSH Act is enforced by OSHA; it does not create a standalone private civil claim for an injured person. Courts across jurisdictions have recognized this general principle.
• OSHA as evidence of negligence: Many states allow OSHA regulations to be used as evidence of the standard of care. In some states, an OSHA violation may support a negligence per se theory; in others, it is admissible as some evidence of negligence. See LII’s overview of negligence per se.
• Control and OSHA oversight: For retained control disputes, a GC’s assumption of site-wide OSHA compliance responsibilities can be relevant to whether it controlled safety means and methods.

Is a construction injury a premises liability case or a contractor negligence case?

It can be either or both. If a dangerous condition of the property (like a hidden hole in a floor, unsecured opening, or hazardous access route) injures you, premises liability principles may apply. If the injury arises from the manner of performing work (like an unsafe hoisting method or removing guards from equipment), contractor negligence and retained control issues are central.

In Texas, Chapter 95 expressly addresses suits against property owners by contractors and their employees for injuries “arising from the condition or use of an improvement to real property,” tying liability to the owner’s knowledge and control. In Illinois, the Premises Liability Act defines duties to entrants. In California, Civil Code § 1714 supplies the general duty framework, with Privette-line cases defining when a hirer is responsible for contractor injuries. Sorting out whether the case is premises-based, methods-based, or both affects who you can sue and what you must prove.

Who can you sue in a third-party construction injury or wrongful death case?

Workers’ compensation may bar direct suits against your direct employer, but third-party civil claims are often available. Depending on facts and state law, potential defendants include:

• Property owners and developers: For premises hazards, retained control, or non-delegable duties.
• General contractors and construction managers: For retained control, negligent safety management, or contractual duties.
• Subcontractors and trade contractors: For negligent acts that harm other trades or third parties.
• Equipment manufacturers and suppliers: For product defects, negligent maintenance, or rental issues in product-related injuries.
• Traffic control firms or utilities: For right-of-way work affecting the public, including signage and barricading governed by the MUTCD.

Wrongful death and survival claims from construction incidents involve additional statutes and beneficiaries, which vary by state. Prompt evaluation helps preserve claims against all responsible parties.

What evidence proves control or a non-delegable duty?

Evidence is the lifeblood of a construction case. Helpful categories include:

• Contracts and subcontracts: Clauses on safety responsibility, stop-work authority, inspection rights, method-of-work control, and indemnity/insurance obligations.
• Site safety plans and manuals: Project-specific safety programs, JSAs/JHAs, toolbox talk schedules, and task hazard analyses showing who dictated safety measures.
• Daily reports and meeting minutes: GC or owner directives on how to perform work, sequencing changes, and safety instructions.
• Emails, texts, and RFIs: Communications with prescriptive instructions or approvals tied to methods or safety.
• OSHA records: Citations, inspection notes, and classification of “controlling” employers under the multi-employer policy.
• Photographs, videos, and site mapping: Conditions at the time of the incident, barricading, signage, and access control.
• Permits and public way plans: Traffic control plans and compliance with the MUTCD and local ordinances.
• Incident reports and witness statements: Who directed the work and what safety measures were in place or bypassed.

What defenses do owners and general contractors raise in control vs. non-delegable duty disputes?

Common defense themes include:

• No operative control: The owner/GC had only general oversight, not control of means and methods.
• Independent contractor autonomy: The contractor chose its own methods and safety plans.
• No non-delegable duty applies: Any duties were delegated and performed by the contractor; statutory obligations do not create civil vicarious liability in this context.
• Open and obvious hazards or comparative fault: Plaintiff knew or should have known of the hazard; fault lies with the contractor or injured party.
• Chapter 95 (Texas) limitations: For suits by contractor employees against property owners, plaintiff cannot meet the statute’s knowledge-and-control requirements.
• Privette (California) bar and exceptions not met: Injured worker was employed by the contractor; no affirmative contribution or applicable exception.
• Lack of causation: Even if there was some control, defendant’s actions did not cause the injury.

What state-specific rules apply in TX, CA, and IL?

What should Texas owners, GCs, and injured workers know (TX and cities like Houston, Dallas, Austin, San Antonio)?

• Chapter 95 governs many owner claims: CPRC Chapter 95 can limit suits by contractor employees against the property owner unless the owner had actual knowledge of the danger and retained some control over the work that caused the injury.
• Retained control requires more than general oversight: Safety inspections or the right to stop work alone may not be enough; directing methods or issuing specific safety commands can support retained control.
• Third-party claims still viable: Claims against GCs or other subcontractors, or product manufacturers, remain important paths to recovery.
• Evidence of site control matters across major Texas markets: The same principles apply statewide, including on large projects in Houston, Dallas–Fort Worth, Austin, and San Antonio.

What should California owners, GCs, and injured workers know (CA and cities like Los Angeles, San Diego, San Jose, San Francisco)?

• Privette general rule with exceptions: Hirers are generally not liable for injuries to a contractor’s employees, unless a recognized exception applies (e.g., retained control with affirmative contribution, negligent provision of unsafe equipment, or certain concealed premises hazards).
• Affirmative acts are key: For retained control, courts often look for specific hirer actions that contributed to the harm, not just a right to control or passive oversight.
• Civil Code § 1714’s duty of care: California’s broad duty framework interacts with these doctrines; facts drive whether an exception fits.
• Public-facing injuries are different: Claims by members of the public (e.g., pedestrians injured by poor barricading) can involve different duty and non-delegable duty analyses than claims by contractor employees.

What should Illinois owners, GCs, and injured workers know (IL and Chicago statewide)?

• Section 414 retained control: Illinois recognizes liability where a hirer retains control over operative details of the work and fails to exercise that control with reasonable care.
• Premises duties remain important: The Premises Liability Act can apply when a land condition is unsafe for lawful entrants (including workers in some circumstances).
• Evidence of safety authority: Safety manuals, stop-work authority, and daily supervision can support or defeat retained control depending on how they were used in fact.

What deadlines apply to construction injury and wrongful death claims in TX, CA, and IL?

Deadlines vary by state and claim type, and can be shorter if government entities are involved (notice-of-claim rules). Statutes of limitations are strictly enforced and can change; confirm current rules for your situation. Generally:

• Texas: Personal injury claims are typically subject to a two-year limitations period; wrongful death claims generally share the two-year period, with specific accrual rules.
• California: Personal injury claims are generally two years; wrongful death is generally two years; claims involving public entities often require a government claim within six months.
• Illinois: Personal injury is generally two years; wrongful death typically two years; claims against local public entities may have shorter notice or filing requirements.

Because construction cases often involve many defendants and insurers, engaging legal help early helps preserve evidence, identify the correct defendants, and meet all deadlines in TX, CA, and IL.

How do insurance and indemnity clauses affect your construction claim?

Construction contracts often contain layered insurance and risk transfer provisions:

• Additional insured (AI) coverage: Owners and GCs commonly require subcontractors to name them as AIs on liability policies. If the claim arises from the subcontractor’s work, AI coverage may apply.
• Indemnity agreements: Contracts may require one party to indemnify another for claims “arising out of” the work. Many states regulate construction indemnity provisions, and anti-indemnity statutes may limit indemnity for a party’s own negligence.
• Primary and noncontributory endorsements: These endorsements can determine which policy responds first, affecting settlement leverage and defense coordination.
• OSHA citations and coverage issues: Safety control by a GC or owner can influence how insurers evaluate AI coverage and indemnity tenders.

Risk transfer often turns on who controlled the work and whether any non-delegable duty applies. Early tendering and coverage analysis can significantly affect case strategy.

What steps should you take after a construction site injury in Texas, California, or Illinois?

• Get medical care immediately and report the incident to your employer or site management.
• Preserve evidence: Photograph the scene, equipment, signage, barricades, and weather conditions; note names and roles of witnesses and supervisors.
• Request key documents: Contracts, subcontracts, safety plans, incident reports, and any OSHA documents related to the site or incident.
• Identify all responsible parties: Owner, GC, construction manager, subcontractors, equipment suppliers, traffic control firms, and utilities.
• Mind the deadlines: Calendar statute of limitations and any government notice requirements.
• Seek legal help: Construction liability is complex. Aligning theory to facts early can shape a stronger claim.

How can GoSuits help with a control vs. non-delegable duty case?

Construction cases are rarely straightforward. Determining whether your claim turns on retained control, non-delegable duty, premises liability, or a mix of all three requires a disciplined, evidence-driven approach. GoSuits focuses on serious personal injury and wrongful death cases in Texas, California, and Illinois, and we structure our work to move quickly while staying thorough.

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What availability and communication do we offer?

• Available 24/7: You can reach us any time for a free consultation. An attorney and staff are on call at all office locations to review your situation, start preserving evidence, and answer your questions.
• Multilingual support: We provide multilingual customer service, with Spanish and Farsi available 24/7. We can coordinate interpreters in additional languages as needed.
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What are our fee policies and cost transparency?

• No win, No Attorney Fees: You owe no attorney fee unless we obtain a recovery.
• No hidden administrative fees: We are upfront about costs and how they are handled, and we explain the financial terms before engagement so you can make informed choices.

How do our tools and case workflow help your claim?

• Purpose-built injury software: We created proprietary personal injury software for internal use that helps us work faster and better across investigation, medical record analysis, demands, negotiation, filing suit, and discovery. We are a law firm first, and we apply forward-looking tools to level the playing field with insurance carriers.
• Early liability mapping: From day one we chart who controlled what (owner vs. GC vs. subs), what duties were potentially non-delegable, and how OSHA and contract provisions impact your claim.
• Evidence preservation plans: We send immediate hold notices, seek site access where appropriate, and gather contracts, safety plans, and communications before they disappear.

What is our experience and track record?

• 30 years of combined experience: Our attorneys have litigated complex injury cases involving construction sites, product failures, trucking collisions, and more.
• Litigated 1,000+ cases: Settlement and verdict results are publicly posted: see GoSuits prior cases.
• High-stakes litigation: In product liability, 18-wheeler crashes, traumatic brain injury, spinal injury, and other complex matters, we retain qualified, court-approved professionals to analyze causation, standard of care, and damages when needed to establish liability.
• Multi-state presence: We litigate severe injury cases in Texas, California, and Illinois. Our local familiarity with courts in Houston, Dallas–Fort Worth, Austin, San Antonio, Los Angeles, San Diego, San Jose, San Francisco, and Chicago helps us move efficiently.
• Awards and recognitions: Our team and results have been recognized in TopVerdict rankings across multiple U.S. counties; Top 100 Settlement in Texas; National Trial Lawyers Top 40 Under 40 (Sean Chalaki); Best Lawyers (2023–2025); and Super Lawyers (since 2021). These honors reflect dedication to clients and case outcomes; they are not guarantees of future results.

Community involvement

• Local engagement: We are active with schools, chambers of commerce, and local non-profits in the communities we serve.
• Professional leadership: Team members serve on boards and are active in trial lawyer organizations such as the Texas Trial Lawyers Association and consumer rights groups.

Where are we located, and how can we help immediately?

• Nearest office locations: We maintain offices serving clients across Texas (including Houston, Dallas, Austin, San Antonio), California (Los Angeles, San Diego, San Jose, San Francisco), and Illinois (Chicago and statewide). An attorney and staff are present at each location and ready to help 24/7.
• Immediate actions we take: We start with a free consultation, secure evidence, contact insurers to stop adjuster pressure, coordinate needed medical care, and set timelines for investigation and, if necessary, filing suit.
• Focused caseload: We are not a volume firm. We prioritize quality legal service, consistent communication, and a case plan tailored to you.

If you are searching “construction accident attorney near me” in TX, CA, or IL, we are available now to discuss how control vs. non-delegable duty applies to your case and to take the first steps to protect your claim.

Sources and references

• LII Wex: Independent contractor
• LII Wex: Vicarious liability
• LII Wex: Nondelegable duty
• LII Wex: Negligence per se
• 29 U.S.C. § 654 (OSH Act General Duty Clause), via LII
• OSHA Directive CPL 02-00-124: Multi-Employer Citation Policy
• OSHA: Commonly Used Statistics
• BLS: Census of Fatal Occupational Injuries (CFOI), 2022 Summary
• Texas Civil Practice and Remedies Code Chapter 95
• California Civil Code § 1714
• Illinois Premises Liability Act (740 ILCS 130)
• Federal Highway Administration: MUTCD