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Harris v. Rio Hotel & Casino6/21/2001
law. Frith held, at least implicitly, that a real property owner is not, as a matter of law, subject to common law liability for workplace injuries incurred by employees performing construction work on the property pursuant to a general construction contract.
In Frith, an injured worker alleged that the property owner -- although having hired a general contractor to construct improvements –- enjoyed no NIIA immunity because it retained a degree of control over the construction project. We affirmed the district court's conclusion that the property owner was statutorily immune "regardless of whether [the owner] or [the general contractor] was in fact [the injured worker's] employer." We further held that:
"If Harrah[, the owner,] could be deemed the principal contractor and the principal employer of Frith[, the injured worker], it would not be excluded from coverage under the Nevada Industrial Insurance Act and the insulation from common law liability just because it was also the owner of the real property where the injury occurred. If Campbell Construction Company[, the general contractor that directly employed Frith,] is the bona fide employer of Frith, then both Harrah and Campbell would be insulated by the Nevada Industrial Insurance Act from any common law liability.*fn19"
Frith implies that, with or without retention of some control over the course of construction by the owner, the owner and its general contractor stand in the same shoes for the purposes of NIIA immunity. This proposition is underscored by the rationale for the decision, that if immunity were not granted, "no owner of real property in this state would dare allow a workman upon his property."
In concluding that NIIA immunity barred the worker's common law suit against the property owner regardless of the control the owner exercised over the project, the Frith court relied in part on our decision in Simon Service v. Mitchell. Simon Service is the seminal case in which we articulated a broad-based immunity under the NIIA.
In Simon Service, a real property owner constructed improvements through various independent contractors without using a general contractor as an intermediary. A worker employed by one of the independent contractors was injured during the course of construction and sued the property owner in a common law negligence action. Both the owner and the worker's employer paid premiums for industrial insurance for their respective employees.
Relying on the general purposes of the Nevada workers' compensation laws and the language of NRS 616.085(1) (re-codified as NRS 616A.210(1)) that "subcontractors, independent contractors and the employees of either shall be deemed employees of the principal contractor," this court concluded that the landowner was immune under the Act. We equated an owner parceling work to various independent contractors with a general contractor working through "subcontractors." Notwithstanding that the 1951 Legislature had previously eliminated explicit immunity for "other person [persons other than principal contractors] having the work done," the court noted that to conclude otherwise "would compel an owner, who is himself an experienced construction [person], to employ a 'principal contractor' who would, perchance, let out every phase of the work in subcontracts precisely as the owner would do without the intervention of a 'principal contractor.'" Thus, we reasoned that a contrary construction of the statute would encourage property owners with construction expertise to undergo the unnecessary expense of hiring an intermediary to avoid loss of NIIA immunity. This statement of policy tipped the balance in favor of immunity in that instance.<
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