Construction site accidents happen every day on all types of residential, commercial and industrial projects.  Construction sites are inherently dangerous places with many moving parts and hidden hazards.  Given the nature of construction work and site operations, an accident can result in serious, catastrophic and even fatal injury to a worker.  For these reasons construction sites are highly regulated environments, subject to various government safety codes. 

The United States Department of Labor, Occupational, Health & Safety Administration (“OSHA”), enacted a detailed set of “Safety and Health Regulations for Construction” devoted exclusively to construction site safety.  OSHA investigates construction site accidents for the purpose of enforcing its safety regulations and for punishing those violate them.  The Commonwealth of Massachusetts, like many states, has also enacted construction site safety codes in the State Building Code and the State Sanitary Code along with other miscellaneous sections of the Code of Massachusetts Regulations. 

Some construction accidents are unavoidable and, fortunately, there is worker’s compensation insurance that will pay for some of the medical bills and some of the lost wages.  For all of the good it does though, worker’s compensation is a flawed system that never fully compensates victims of avoidable negligence on construction sites.  When the injury is caused by some third-party negligence – that is, by someone other than the employer – claims can be brought against those entities whether they are the general contractor, other sub-contractors, the project manager, the project owner, safety consultants, project engineers, site planners, architects, even suppliers of defective equipment, machinery or toxic or hazardous construction materials.

Construction site accidents frequently involve scaffolding and staging collapses, wall and roof collapses, falls through unprotected floor openings, falls off of unguarded elevations, exposure to hazardous waste or toxic chemicals, failure of fall protection equipment, the negligent use of motor vehicles, power tools, cranes, aerial lifts, bobcats, forklifts, front-end loaders or excavators, construction vehicle overturns from improper loading or unsafe terrain or from dropped loads, electrocution, elevator malfunction and a failure to adhere to worker safety regulations.

Massachusetts construction accident law is a unique and complex subset of general negligence and personal injury law.  Many of those general negligence that I have discussed in prior blogs are applicable.  There are a few major areas though where construction accident cases are different from others.  First, the standards of acceptable conduct on a job site are almost always governed by safety statutes, regulations and contractual provisions, rather than the common law.  Second, construction cases almost always involve multiple defendants including the general contractor and any responsible subcontractors.  This complicates things and inevitably increases the amount of finger-pointing.  Third, aside from rare injuries to innocent bystanders, all construction cases involve an injury to a job site worker who must file a worker’s compensation claim through his or her employer’s insurance company.  Last, discovery is always harder in construction cases than in other negligence cases.  Construction workers justifiably worry about adverse impact on their job status if they cooperate or if their company is found at fault for an injury.  As a result, construction accident witnesses are generally less cooperative with the legal process.  In short, construction claims involve more difficult issues of fact and more complicated issues of law than your average personal injury claim.

Superimposed on these issues for the plaintiff’s attorney is the fact that construction site accidents usually involve life-altering personal injuries, unfortunately some catastrophic and others fatal.  Accordingly, the stakes are exceedingly high for an injured worker and his or her family.

A.        The Duty of Care on a Construction Site.

Establishing liability for a construction site accident is a complex endeavor.  Every case is unique and poses its own issues.  One of the fundamental challenges is to identify the parties responsible for an accident and then establish the factual basis for a legal of duty on their part.

1.         Safety statutes and regulations.

Safety on a construction site starts at the top with the general contractor for the project.  The general contractor has a “non-delegable” duty to provide a safe job-site and to adhere to both the federal and state construction safety regulations.  By non-delegable, we mean that a defendant general contractor cannot contract away its safety duties on a job site to some other entity like a sub-contractor or a safety consultant.  For this reason, general contractors are almost always named as defendants in construction cases.  The only exception would be where the plaintiff was employed by the general contractor.  In that case, the worker would be barred from suing his employer pursuant to the exclusivity provision of the Workers Compensation Act, also known as the worker’s compensation bar.

Potential co-defendants include sub-contractors, the project manager, the project owner, safety consultants, project engineers, site planners, architects, even suppliers of defective equipment, machinery or toxic or hazardous construction materials – in essence, anyone whose failure to comply with applicable safety regulations contributed to cause the accident and injury.

Federal and state construction safety regulations were designed to create safer job sites.  These safety regulations provide a basis for establishing legal responsibility against anyone who fails to comply with them.

For a sense of how comprehensive the OSHA construction regulations are, below are listed the general categories that they cover.  Bear in mind that each category has dozens of subparts that define the minimum standards for compliance.  A complete set of these regulations can be found at  OSHA construction standards impose detailed rules for the following:

  • Job-site safety training and education
  • Documenting and reporting injuries
  • First aid training
  • Fire protection and prevention
  • Debris removal and housekeeping
  • Illumination
  • Sanitation
  • Personal protective equipment (foot, head, hearing, eye and face, respiratory, safety belts, lifelines, lanyards and safety         nets)
  • Radiation protection
  • Gases, vapors, fumes, dusts
  • Ventilation
  • Toxic and hazardous chemical handling (including asbestos, coal tar pitch, carcinogens, naphthylamine, methyl chloromethyl ether, dichlorobenzidine, 4-Aminodiphenyl, ethyleneimine, beta-Propiolactone, benzidine, acetylaminoflourene, dimethylaminoazobenzene, nitrosodimethylamine, vinyl chloride, arsenic, chromium, cadmium, benzene, coke oven emissions, acrylonitrile, ethylene oxide, formaldehyde, methylene chloride, lead and methylenedianiline)
  • Toxic and hazardous waste handling
  • Signage, signals and barricades
  • Tools (including hand tools, power tools, woodworking tools, jacks, levers, ratchet, screw and hydraulic tools, mechanical power transmission tools)
  • Welding and cutting
  • Electrical (including wiring design, methods, components, equipment, installation and lock-out/tag-out of circuits)
  • Scaffolds and climbing platforms
  • Fall protection and guard-rails
  • Cranes and derricks
  • Helicopters
  • Material hoists, personnel hoists and elevators
  • Base mounted drum hoists
  • Overhead hoists
  • Conveyors
  • Aerial lifts
  • Motor vehicles
  • Mechanized equipment and pile driving
  • Marine operations
  • Excavations
  • Concrete and masonry construction
  • Steel erection
  • Underground construction, caissons and cofferdams
  • Demolition
  • Blasting and use of explosives
  • Power transmission
  • Rollover protection and overhead protection for tractors, scrapers, loaders, dozers and graders
  • Ladders

Massachusetts also has enacted a comprehensive set of similar regulations in the State Building Code and State Sanitary Code.  The violations of these state codes can also provide a basis for establishing liability.

Invariably if an accident and serious injury occurs on a construction site, there will probably be some safety regulation that is implicated.  The goal is to ascertain what regulation was violated and which parties were responsible.

In order to properly utilize construction safety codes in a legal claim, it is important to determine which relevant edition applies.  The various federal and state codes are continually revised and updated to fill in any gaps, clarify any topics and generally to make them more rigorous.  As a general rule, the applicable code is the code in effect when the building or structure was constructed.  If the work complied with the code at the time of construction, it is “grandfathered” with respect to subsequently enacted codes.  There are of course exceptions like where the performance of certain subsequent work removes or limits the grandfather protection.  In addition, certain elements of buildings and structures may be deemed so crucial to safety that they must be kept current with the latest codes.

Construction safety codes establish only minimal standards of conduct.  The parties are free to contractually agree to heighten (but not lower) the standard of care, and they often do.

2.         Contract documents.

Almost every construction project is undertaken pursuant to at least one written contract.  Large projects will typically involve multiple contracts between the owner and the general contractor, the general and the sub-contractors, and even between sub-contractors and sub-sub-contractors.  These construction contracts frequently impose standards of care that exceed the standards set forth in the applicable safety regulations.  This happens because, from the top down, each contractor wants to impose stricter safety requirements on sub-contractors since they are closest to the actual work.  Thus, it is quite possible for a contractor to breach a contractual safety provision without violating the federal or state regulations.  A violation of a contractual safety provision can be used to prove that the violator was negligent since it agreed to live up to a certain standard but failed.

The process of determining what contract governs a particular hazard or accident requires sifting through a complicated maze of documents.  It is customary in Massachusetts for contracts between parties to incorporate by reference other sets of contract documents that then become binding on the parties to the first contract.

3.         Job-site documents.

Job-site documents include various types of written project materials such as building and site design plans and specifications, safety booklets, weekly tool-box or job-site meeting minutes, daily logs and attendance sheets and progress photographs.

The plans and specifications are usually referenced in or attached to the contract documents.  If so, they can inform a contractor’s legal duties the violation of which might provide a basis for establishing liability.  The plans and specifications often contain safety obligations as well as construction details.

Safety booklets can also establish a standard of care that in many instances exceeds that established by statute or regulation.  Safety booklets routinely contain statements proclaiming the contractor’s commitment to safety with specific examples.  The company’s actual practices in the field might differ drastically.  This difference may enable the plaintiff to argue that the company is not following its own self-established safety standards.  Such evidence can be very persuasive at trial.  If the company felt a safety point was important enough to crow about in its safety booklet, the company should have ensured that the safety point was followed on the job site.

Weekly tool-box or job-site meeting minutes also can help in establishing liability.  Such minutes may reveal, for example, an ongoing problem with a hazardous condition on the site that was not timely addressed and that led to the plaintiff’s injury. These records will also show what safety topics were discussed at various stages of the project and may identify potential witnesses.

Daily logs and attendance sheets identify each trade as well as the number of workers from each trade on the job each day. These documents are very helpful in refuting arguments that workers from particular trades could not have created the hazard resulting in the incident.  Daily logs also provide a snapshot of the conditions on the job site at regular intervals.  They can shed light on issues such as whether a particular contract had assigned enough laborers to clean up a debris riddled area in a timely manner.

4.         Strict liability.

Under certain circumstances, Massachusetts law imposes strict liability for injuries arising from the failure to comply with the Massachusetts State Building Code. However, the circumstances under which such liability can be established can be unclear.

The statute in question, G.L. c. 143, § 51 provides as follows:

“The owner, lessee, mortgagee in possession or occupant, being the party in control, of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building shall comply with the provisions of… the state building code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation of any of said provisions.”

While on its face the statute appears to impose broad liability, this is not the case in practice.  The statute’s application has been significantly restricted by the courts due to a very narrow definition they have assigned to the word “building” as that word is used in the statute.  The courts have ruled in different cases that the statute does not apply to single-family homes, to an owner-occupied, two-family home in which the owner rents one unit to a tenant, or to three-family homes whether owner-occupied or not and certain condominiums.

Perhaps the most significant restriction on the statute, however, is the set of facts that must exist to trigger its application. The courts appear to be in some disagreement regarding this point.  Suffice it say that there is still a lot of confusion on this point and the area remains unsettled. 

B.        Defenses.

Everyone involved in the day-to-day operations of a construction sites is aware of the inherent dangers of such work.  Construction workers receive formal training and informal on-the-job training on best safety practices and how to avoid accidents.  For that reason, construction accident cases almost always involve the defenses of comparative negligence and the “open and obvious” danger rule.

1.         Comparative negligence.

Comparative negligence is when the injured worker was also negligent to some degree in causing the accident.  The comparative negligence statute bars recovery in any negligence claim where the plaintiff was more than 50% at fault.  The statute will also reduce any recovery by the percentage of the plaintiff’s fault that is 50% or less.  Thus, the comparative negligence defense can present a serious impediment to an injured worker’s legal claim.

Any comparative negligence analysis will probe into the plaintiff’s construction background.  It will focus on what the plaintiff knew about a particular potential hazard and when he knew it.  Relevant topics include any formal pre-incident training such as vocational training, employer-run training sessions, union classes and even government-sponsored training like OSHA safety courses.  Indeed, smart contractors will not even let subcontractors onto a jobsite until they undergo specialized safety training.  For example, if a demolition sub-contractor is likely to encounter asbestos, the contractor will require the demolition teams to be specially certified for such work.

A plaintiff’s informal on-the-job training will also inform what he knew about the hazard and, perhaps, whether he acted reasonably at the time of the accident.  A plaintiff’s attendance at weekly tool-box or job-site meetings can also evidence his pre-accident understanding and appreciation of a particular work hazard.  A plaintiff’s personal work experience and history in the various construction trades is also relevant.  This is especially true for the more experienced workers who may have at one time or another served as a safety steward or foreman.  Such position reflects the worker’s experience and competence but also his superior ability and track records of avoiding the hazard associated with the accident.

2.         “Open and obvious” danger rule.

A project owner or general contractor owes all site workers a duty to maintain the project site in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.  This includes a duty to warn of any unreasonable dangers of which the defendant is aware or reasonably should be aware. 

In general negligence cases, the courts have carved out a common law exception to this duty of care called the “open and obvious” danger rule.  According to the rule, no duty is owed to anyone as to dangers that are open and obvious to a person of average intelligence with ordinary perception and judgment who is exercising reasonable care for his or her own safety.  The rule requires an objective assessment by the court of the circumstances and whether a warning would be necessary to apprise a person of average intelligence of a particular risk.  Here is the rub, though.  The application of the open and obvious rule is determined by the court as a matter of law sometime before trial.  If the trial judge thinks that the rule applies, then the case will be dismissed and never even make it to trial before a jury.

Though defense counsel will argue for it, the rule’s application to construction accident cases is in doubt.  If permitted, this rule would have the effect of narrowing if not abrogating the legal duties established by the federal and state safety regulations in OSHA regulations and in the State Building Code and State Sanitary Code.  If the rule were applied, a general contractor would have no obligation – despite the existence of specific safety regulations – to install perimeter cables or safety nets, barricade floor openings or erect handrails so long as the dangers created by their absence were open and obvious to the reasonable construction worker.  And unlike the usual “open and obvious” danger that we see in other property negligence cases, in construction cases many times the injury worker does not have a real choice not to interact with a known hazard.  It may simply be an unavoidable part of the job to confront open and obvious dangers.  This illogical type of outcome has raised serious questions about whether the open and obvious rule applies in construction cases. 

C.        Worker’s Compensation Insurance.

Worker’s compensation law is world unto itself.  Most trial lawyers who handle the so-called “third-party” construction site liability claims do not venture into that world.  Nevertheless worker’s compensation affects the third-party claim in three substantial ways. 

1.         Exclusivity.

The Worker’s Compensation Act is a statute enacted by the Legislature to provide a no-fault system wherein injured workers are covered by the employer’s insurance for most of the medical expenses and lost wages while they are recuperating.  To qualify, the injured worker must have been an “employee” injured “in the course of his employment”. 

In exchange for receiving this benefit, the injured worker is barred from seeking any other legal redress from the employer beyond the context of a worker’s compensation claim.  In other words, an employee cannot sue the employer for damages in a civil action.  This is the exclusivity rule contained in the Worker’s Compensation Act.  Worker’s compensation is not a perfect system, but it helps those in need and it is better than nothing.

Because the exclusivity provision bars lawsuits against employers, injured workers often pursue additional avenues for recovery against responsible third-parties since their worker’s compensation benefits usually fall far short of full reimbursement for the impact of an injury.  In construction cases, this usually involves the general contractor and other sub-contractors or business entities responsible for the particular hazard or for causing the accident.

2.         The Department of Industrial Accidents.

Many worker’s compensation claims are disputed by the insurance company.  Either they argue that the worker was not injured in the manner he says he was or they argue that the injury is not as severe as the worker says it is.  The result is that the dispute is litigated in the Department of Industrial Accidents between the injured worker’s lawyer and the lawyer for the insurance company, and an administrative judge will review all of the evidence and make a decision.

What happens in the DIA can impact a third-party case against other entities.  Statements made by the injured worker, witnesses called to testify and medical examinations conducted can all affect the viability of a third-party case.

For these reasons, it is important at the outset of any worker’s compensation claim to consider third-party claims and to consult with a trial attorney so he or she can coordinate strategy with the worker’s compensation lawyer.

3.         Worker’s compensation liens.

When an employee suffers a work-place personal injury he will often file a worker’s compensation claim for benefits that pay the medical bills and reimburse the employee for a percentage of lost wages from time missed from work.  If the injury was caused by some third-party (not the employer), like another contractor on a job site or from a defective product used on the site, the employee can bring a personal injury claim against that third-party for damages.  If the third-party claim results in a recovery, the worker’s compensation paying insurer will be entitled to reimbursement of a proportionate share of the monies it paid out.  The remaining excess amount collected by the employee is treated as an offset against future compensation payments for ongoing medical treatment or disability arising from the same accident.

The settlement of a worker’s compensation lien in a third-party action requires court approval to make sure that the allocation is fair to all interested parties.  Since loss of consortium claims are not subject to a worker’s compensation lien, disputes can arise when the plaintiff-employee tries to allocate a significant portion of the third-party settlement to his spouse. 

D.        Videotape Surveillance.

Injured construction workers that file worker’s compensation claims or third-party tort claims against non-employer defendants can safely assume they will be followed by a videotape surveillance crew looking for some “gotcha” footage.  The film crew will try to capture the injured worker performing some physical act which they said they could not perform during the period of recuperation or convalescence.

Insurers and defense counsel often have surveillance film taken just before the plaintiff is deposed. A plaintiff who has been observed performing an activity inconsistent with the injury claim will be asked during the deposition what activities he or she can and cannot perform.  It is always a mistake to lie about or exaggerate the nature and extent of one’s injuries.  This usually spells doom for a case since judges and juries have little patience or sympathy for such conduct.

E.        Indemnification.

Indemnification provisions in construction contracts allow one party to transfer its liabilities to another party.  General contractors, with their inherent power in the construction hierarchy, have in the past tried to shift all liability to their subcontractors even when the subcontractors did not cause the incident.  This practice was not only unfair to non-culpable subcontractors, but it also allowed those in the best position to establish site-wide safety to delegate their safety obligations in violation of federal and state regulations.  Thus, in its wisdom, the Legislature passed G.L. c. 149, § 29C to address this situation.  The statute permits the use of indemnification provisions but only if they cannot be read to require one party to obtain indemnification from another party who is not a “cause” of the incident.

F.         What To Do.

Whenever someone has been seriously injured or killed as a result of some negligent act or omission on a construction site, there are a few things that must be done immediately to protect the person’s legal rights.  Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted.  Whether a legal claim is ever asserted or a lawsuit filed is a question for down the road.  For now, preliminary steps must first be taken in order to make an informed decision about one’s legal options.

1.         Consult with an expert plaintiff’s trial lawyer.

Seemingly simple negligence claims can turn out to be quite complex and riddled with pitfalls.  Large insurance companies have deeply vested economic interests in defending their insureds from liability.  They hire only the most experienced defense firms that fight tooth and nail to avoid responsibility.  Construction injury cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with those kinds of claims.  These are not cases for novices learning the ropes.  And this is not the arena for a jack-of-all-trades lawyer like a general practitioner.  You should only confer with an attorney who regularly handles high stakes negligence cases. 

For workers unfortunate enough to suffer a life-altering injury, their misfortune can be compounded by selecting the wrong attorney.  The major mistake people make is to contact the first personal injury law office they come across, whether it’s on television or on a billboard or the one with the big sign on the main street in town.  Those types of law firms generally handle a high volume of small cases that get “processed” by non-legal staff with little attention by the attorney.  Though these attorneys may advertise themselves as expert trial lawyers, chances are they are not.  In reality, they will simply refer your case to other attorneys in exchange for a referral fee.  Avoid this mistake and cut out the middle man by doing some research and finding the right king of legal counsel the first time around.  This will make all the difference for your case.

2.         Preserve any evidence.

In construction injury cases, any evidence of the incident, its cause and/or the injurious results must be identified and preserved.

3.         Identify witnesses.

It is also important to document the names and contact information for any witnesses to a construction site injury or to the conditions that caused it.  The witness list is not limited to those who actually saw or heard the accident occur.  It also includes anyone learned about the accident’s details after-the-fact like such as family members, co-workers, emergency medical technicians, nurses or doctors.

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