A cement truck struck and injured a flagman just outside a construction site. When the flagman sued the driver and the subcontractor that employed him, a battle began over the apportionment of fault among the plaintiff, the general contractor, and various subcontractors. The trial court ruled that the defendant subcontractor was not entitled to an apportionment of fault, as its contract appeared to make it solely responsible for worker safety. The Fourth District Court of Appeals disagreed in Continental Florida Materials, Inc. v. Kusherman, reversing the trial court’s ruling and remanding the case so the court could apportion fault among the various contractors.
The accident occurred when a concrete truck hit a flagman while driving in reverse, knocking him to the ground and running over his legs. The construction foreman, who was employed by the general contractor, had instructed the truck driver to exit the construction site, which the driver had to do in reverse. The foreman was not formally responsible for directing traffic within the site, but the general contractor was responsible for controlling street traffic around the site. The plaintiff was the only flagman directing traffic at the time, and he claimed that he was turned away from the truck and did not hear a backup indicator. By the time he saw the truck, the plaintiff claimed it was three to four feet away and he did not have time to avoid being hit.