Common Issues in Handling a Construction Site Accident

In this series of construction accident blogs, we have focused on the notion of a controlling employer. Generally, the controlling employer is the General Contractor and has those responsibilities. That is, the controlling employer must satisfy its responsibility to exercise reasonable care to prevent and detect violations on the site by any of the subcontractors. As you can see, this is negligence-type language in that it focuses on the need to exercise reasonable care.

In dealing with a controlling employer, we start with step 1 of an analysis. What employer category applies to the employer? Once we know and establish that the General Contractor is the controlling employer, fitting within OSHA’s multi-employer definition, we look to the following factors:

• The scale and size of the project;
• The nature of the work that has been done from the life of the project until the accident, including the long term existence of the hazard;
• The safety history, safety practices of the sub-contractors under the General Contractor’s control;
• Given the information that the General Contractor has seen, or in the exercise of reasonable care should see, we examine how frequent the inspections were;
• The compliance of the subcontractor with the system of enforcement or graduated discipline exercised by the General Contractor.

All of the above requires the General Contractor to conduct periodic inspections and more frequent ones if the answers to the above factors are less than satisfactory. Furthermore, the General Contractor must implement an effective system for correcting the hazards. The expert witnesses will explain how compliance is typically assured from subcontractors on a construction site. As common sense tells us, some hazards could lead to very serious injuries. That situation can never be tolerated. Indifference to a safety violation can lead to the death of an injured worker.

We know that falls are the leading cause of death on a construction site. OSHA and other agencies, some governmental and some private, have numerous recommendations for how a fall hazard can be reduced or hopefully eliminated. There is no shortage of resources available from OSHA and industry groups. It is interesting to note whether those resources had been utilized by the relevant parties on the construction site.

A worker may have some appreciation of the risk. But the worker has countervailing considerations: working at a good pace, keeping up with coworkers, and just generally getting the job done. Yes, a worker is a “competent person” as defined by OSHA meaning that the worker can recognize and appreciate the harm. But the worker’s lawyer needs to give the whole picture of what is going on. In forming that picture, his/her lawyer needs to explain the objective of the worker. The client has to put “food on the table.” The client may not be someone who wants to rock the boat. As a result, the client’s focus may be on doing the job rather than on taking painstaking efforts to do everything in a safe manner as set out in the perfect world. That is just reality. For the defendant to then come into court to argue that the employee was careless is unfair it seems to me. The same party who wanted the job done, who wanted it done in a timely fashion, now is complaining about someone who was earnestly trying to meet that standard. Will that remove the worker’s so-called comparative negligence from the equation? Hopefully, it will. The injured worker has been well-served when all issues relating to the project are presented.