Construction Site Accidents: Proving Liability with OSHA Standards

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Construction sites have tremendous potential to injure and kill.  The hazards they present include falling objects, poisonous gases, scalding temperatures, electrocution, explosions, and everything that can go wrong when using ladders and power tools.  Workers on these sites often have nothing other than hardhats and safety glasses to protect them against forces that can maim and kill them in an instant.

Early Investigation
Investigating a construction site accident case involves both pinning down the facts and understanding the law. Witness observations, photos, business records, and tangible evidence may be obtained through workers’ compensation carriers, property insurance investigators, or incident reports from the Occupational Safety and Health Administration (OSHA).  Supplementing these sources with a private investigator may be important for getting details that only a plaintiff’s lawyer will think of.

Construction site accidents are often dramatic, chaotic events.  Witnesses’ memories may not be perfectly consistent. An early, well-planned, careful investigation can make a substantial difference in the outcome of the case.

Using OSHA Standards
While the factual investigation is going on, the plaintiff’s lawyer must be pursuing the second part of the investigation, which involves recognizing and overcoming employer immunity issues and developing a theory of liability.  For administrative penalty purposes, OSHA regulations apply between an employee and an employer.  However, they are frequently used in construction site cases to establish the applicable standard of care for potential defendants working on the site when those potential defendants are not the “employer” in the traditional sense.  The OSHA standards include concepts such as the “creating employer,” which actually creates the hazard; the “exposing employer,” which exposes people to the hazard; the “correcting employer” whose responsibility it is to correct the hazard; and the “controlling employer” who controls the hazardous area.  Any of the vendors, subcontractors, general contractors, owners, and others who exercise any form of control over the construction site may fit into these categories even though they did not pay or provide workers’ compensation coverage for the injured person.  They should all be considered as potential defendants.

The OSHA standards also describe categories of hazard control such as “hazard elimination” (removing sulfuric acid from a job site); “hazard substitution” (covering a floor opening by bolting-down a sheet of plywood over it); engineering controls (concrete barriers to prevent vehicle traffic in pedestrian walkways); administrative controls (warning signs); and personal protective equipment (a safety harness for working on surfaces more than six feet above ground).  These OSHA standards are well known to potential defendants and can provide critical support to persuasive liability arguments.

For example, assume that the owner of a construction project knows that, in order to speed up the work and reduce the price of the job, the roofing sub-contractor allows his crew to work without proper staging, safety equipment, and safety training.  That owner may be a “controlling employer” subject to the OSHA standards.  If so, he or she may have a duty to ensure that personal protective equipment and safety training are in use on the job.  In a civil case in which a worker has been seriously hurt in a fall from the roof, the “controlling employer” regulations provide a basis for arguing the owner’s liability.  While the defense may argue comparative fault, any comparison between a worker who is doing what he is told in order to make a living and a landlord/building owner who is trying to make money by cutting corners is likely to come out in favor of the worker.

Workers on construction sites are exposed to dangerous and powerful forces every day and usually have little power to protect themselves.  When they are hurt, they need vigilant, experienced counsel to gather the critical facts concerning what led up to the injury, to preserve evidence, and to use the available safety standards, including the OSHA regulations, to hold the responsible parties accountable.  If you or someone you know has been injured in a construction site accident, we at Berman & Simmons are prepared to help.