Construction Site Accidents

Construction

Any analysis used to establish whether an injured person can collect damages from any potential defendant in a workplace accident must start with the legal duty the defendant had to the worker. The source of legal duty can be a statute and any regulations stemming from the statute, any contract dealing with the worksite, or any common law duties such as respondent superior.

1. Industry Background

Even though the construction industry has only 5% of the workforces it has 20% of the workplace fatalities in the United States. 25% to 30% of these fatalities are cause by falls from elevated positions. Ranking the fatalities on construction sites show that being struck by moving equipment is first, falls is second, and electrocutions third.

According to US government statistics, approximately 1 in 10 injuries on the job occur on construction sites. In 1997 this accounted for 189, 839 injuries. As the head of the trauma unit of a Philadelphia hospital which treats one construction worker a month for serious injury said, “Construction sites are extremely lethal areas” (Bartholomew Tortella as cited in the Philadelphia Inquirer, 2/11/00, pg. 1).

Most construction sites involve numerous companies at various levels, with the owner of the building or the developer using an architect and engineer to draw up the construction site plans. The owner or developer will also contract with a prime or general contractor to do the actual construction. If the prime does not do construction work, it is considered a construction manager. The prime usually contracts with subcontractors to do such work as demolition, excavation, foundations, steel erection, electrical and concrete work.

2. Statutory Duty

Any analysis used to establish whether an injured person can collect damages from any potential defendant in a workplace accident must start with the legal duty the defendant had to the worker. The source of legal duty can be a statute and any regulations stemming from the statute, and contract dealing with the worksite, or any common law duties such as a respondent superior.

The first place to look to see if any duty is owed the injured worker is the statute (laws) passed by city, state, and federal legislatures, as well as any administrative regulations which interpret these laws. A violation of the statute by the defendant which was the legal cause of the injury may impose a finding of negligence per se on the defendant. Essentially, this finding would make the defendant guilty of negligence and liability for the imposition of damages without the need of the injured to prove anything else.  Even if the defendant complied with all the requirements of a statute, it could still be found negligent from other evidence presented at trial. An example of this would be if a guard were installed on a machine pursuant to a federal safety legislature but the same machine did not have an adequate STOP/START button which as a result caused the accident.

A major law affecting worksite accidents is the Occupational Safety and Health Act (OSHA) passed by the U.S. Congress in 1970. The standards set up in OSHA dealing with constructions, as an example, hold the prime constructor responsible for enforcement of OSHA standards regardless of any contractual agreement between the prime and any sub-contractors. This non-delegable duty of the general extends to all employees on the constructions site regardless of who employs them, which can occur even if the general constructor has no employees himself on the job site. Further, the OSHRC (Occupational Safety and Health Review Commission) has further ruled that any employer, regardless of what level that may be on a multi-tier level construction site, who can get rid of a hazardous condition violating OSHA regulations must do so even though only employees of other companies are at the worksite. The employer, however, will be let off the hook from violating OSHA standards if the employee is unforeseeably disobeying the instructions of the employer. In order to show that the employee disobeyed instructions it is necessary for the employer to prove that it has work rules established to prevent a violation which have been connected to the employee, it has made efforts to uncover any violations, and it has enforced its rules when any violations such as discoveries occurred.

Although OSHA is the main source of statutory regulation of the construction industry, it is not the only source. Since OSHA was passed in 1970, there have been many changes in the construction industry. OSHA, however, especially that part dealing with construction, has not been changed. The standard of care, however, has evolved through a book entitled a Manual for Accident Prevention Construction as published by the Association of General Contractors.  Other standards applying to the job site may also be contained in the specific industry’s safety manuals as can be seen with steel erectors or demolition contractors.

Prior OSHA violations by the same company are available from the regional OSHA office.  Any prior citations for the same type of safety violation would go a long way towards establishing notice to the company. A duty can also be established by reviewing the contract between the property owner and the prime contractor. The contract will establish the responsibilities of each of the parties. Many recent contracts have very strong language whereby the general contractor almost insures the construction site as a safe place. Some contracts require the general contractor to review the subcontractor’s safety programs and to oversee and maintain safety at the site, including full compliance with OSHA Construction Safety Regulations. Change orders to the construct may also help establish which company was responsible for any particular aspect of the job.

Most construction projects have detailed specifications which are prepared by an engineer. Sometimes the engineer may have a duty to an injured person to establish safety regulations, or to specify in detail how work is to be performed. The specifications also identify blueprints and bid documents. All of these documents can also be read to establish a duty owed to the injured worker. Many times bid documents will not contain any provisions for safety as they should. The owner may also pre qualify the bidder to meet certain workers compensation claim levels before even considering that bidder on the job.

Weekly job meetings or coordination meetings are usually well documented and sometimes even videotaped. These meetings go a long way towards establishing the safety culture on the job site. Safety meetings are also held by the general contractor and all subs must attend them. Most job sites have various safety documents that include the project safety manual, minutes of any safety meetings, and accident reports. Each safety manual should deal with the various types of safety issues at the site – e.g. falling and electrocution. Owners typically have progress photos taken of the job site to refute any claims which may be brought against a job for delay.  These same photos can be used to establish OSHA violations on the job site prior to the accident happening.

3. Contract as a Source of Legal Duty

The first question regarding the contract between the owner and the general contractor is whether the contract imposes any duty on these two parties to the injured worker. In the case of Evans v. Otis Elevator (168 A2d 573), the elevator maintenance company argued that it owed no legal duty to the injured party because no contract existed between the injured person and the elevator maintenance company. The Pennsylvania Supreme Court rejected this argument and held that a contract can create affirmative duties to a third party such as the injured person, even though he was a stranger to the contract between the elevator maintenance company and the owner of the elevator.

It is not the express terms of the contract which govern the duty owed but rather the scope of the activities the parties to the contract are to perform. Sometimes the Court will impose a duty even when one does not explicitly exist in the contract. In the case of Hawthorne v. Dravo Corporation (460 A2d 266), the dredging company was held liable for failing to mark a deep dredging site even though the contract did not explicitly state this obligation. The court reasoned this way to protect third parties put at risk by the dredging work that was enumerated in the contract. In a construction accident case, Bisson v. John B. Kelly Inc. (170 A 139), the court held that a masonry subcontractor’s completion of his portion of the job according to his contract did not relieve him of liability to the injured worker. The court held that the subcontractor was also required to secure the brick wall which injured the worker, even thought the masonry subcontractor had left the job site,  because  its socio-legal duty had not been discharged. In another construction case, an engineering firm which contracted with a municipality to supervise the construction site for the activities of various subcontractors was held liable for the death of a workman at the site. The court held in Heath v. Heath Engineers Inc. (4V0 A2d 758 (1980)) that the engineering company had breached its third party duty to the decedent because it had not properly supervised the subcontractor which caused the accident.

4. Status of Injured Worker

The next question which must be answered is what is the status of the worker at the time of the injury. Most workers are considered business invitees by the law because the worker is performing some service which benefits the owner of the land. The status of an injured worker can change, however, if he enters an adjacent area to the worksite. This occurred in a case where a trucker delivering something to a business became a trespasser because he wandered into an area where he was not supposed to be.

The duty owed by the owner of the land where the injury occurred to the injured worker if he is a business invitee is very high. The owner in those circumstances may be required to discover the property’s “actual conditions and latent defects, followed by such repairs, safeguards, or warnings as may be reasonably necessary.” Further, an invitee is entitled to expect that the land upon which he is working has been made safe by the landowner. If the defect is created by the defendant, then no notice to the defendant is required. If the defect on the property was created by a third-party, then the defendant must have sufficient notice in order to cure it. On the other hand, an electrician who was invited onto business premises to repair malfunctioning electrical systems was not owed any duty to warn of the faulty system by the owner because the electrician’s expertise should have led him to discover the fault himself. A contrary ruling would result if the injured person had been a painter instead of an electrician.

An example of the above would occur if a worker was injured while repairing a storage tank at one of the local gas refineries. If the worker was employed by someone other than the owner of this refinery, he could sue the refinery owner for any dangerous conditions in or near the storage tank, for failing to warn the injured employee of the dangerous conditions. This duty to warn the employee exists even if the injured person was working for a contractor who had full control over the premises where the injury occurred. If the landowner warns the contractor of the defect, however, the landowner may insulate himself from liability even though the landowner did not individually warn each employee of the contractor. A landowner is also required to perform his operations at the job site in a way which will not subject workmen from other companies to danger.

5. Statutory Employer Defense

Many companies for whom the injured workers has not worked directly at the worksite try to cut-off liability by asserting the statutory employer defense. This defense can be used if three criteria are met. The first criteria is control. Did the potential defendant control the job site where the accident happened? The next issue is whether the company trying to assert this defense do the same type of work being performed by the injured worker’s direct employer. The final criteria is whether a direct contract exists between the owner and the general, and the general and the sub who employed the injured worker. If all three criteria are met, the defendant may be able to assert to statutory employer defense and escape liability to the injured worker.

6. Negligence and the Standard of care

Once the duty of the defendant has been established to the injured worker, it is necessary to consider whether the defendant’s  behavior, or lack thereof was reasonable measured against the appropriate standard of care.  In the case where there is a danger to the human life, as at construction sites, an even higher degree of care is required (Bricchart vs Edison Light and Power Co., 8v A2d 44).

Ordinarily, the custom and practice in the industry will establish the standard of care for any particular construction accident. A breach of this standard may establish a prima facie case of negligence against the defendant. Nevertheless, the courts have held that this is not the only way to establish a breach of the standard of care due to the injured worker. The courts have reasoned that the standard of care itself of the industry may be negligent, and thus to enforce it would not make sense. The federal court stated what ought to be done in any particular setting “is a fixed standard of reasonable prudence, whether it is usually complied with or not” (Moushey vs US Steel Corp., 374 F2d 561).

The next issue in determining whether a defendant is negligent was whether the actions of the defendant or inactions of the defendant were foreseeable in causing harm to the injured worker. In a case where a catwalk at a plant collapsed, the company putting up the catwalk was not held liable where the owner of the plant did not reinstall the catwalk properly after it had been removed  (Mathis vs United Engineers and Constructors Inc., 554 A2d 96). The court held that it was not reasonably foreseeable and too speculative to held the catwalk company responsible in this situation. Conversely, the safety manual of the defendant can be introduced to show that the defendant was on notice as to the foresee ability of an accident happening (Densler vs Metropolitan Edison Co., 345 A2d 758).

7. Regional Performing Arts Center

An accident at the Regional Performing Arts Center in Philadelphia illustrates the various legal issues mentioned in this writing. On February 8, 2000, at approximately 8:30 AM, a ramp being constructed for an underground parking garage collapsed, dropping eight men about 40 feet into 40 tons of wet concrete. Seven of the injured were concrete workers and one was an electrician. The ramp collapsed when the concrete being poured into a wooden form was not properly supported by the steel grill. As best as can be reconstructed from various newspaper accounts, the Regional Performing Arts Center is the owner of the property where the accident happened.  This entity in turn contracted with L.F. Driscoll Company to oversee the project, along with Artis T. Ore. Driscoll then contracted with B. Pietrini and Sons for the support structure for the concrete. According to OSHA officials, the investigation of the accident focused on two issues. The first is the procedure used by the workers to pour the concrete. The second will be the design specifications for the support scaffolding which was installed shortly before the accident.

8. Damages in General

Once the liability of the defendants has been established, it is necessary to establish what monetary award to the injured worker is appropriate to place him or her back in the position he or she was in prior to the injury. The amount of damages to be awarded depends upon what is claimed by the injured worker and what is introduced at trial. Generally, the injured worker is entitled to past and future loss of earnings, medical expenses in the past and future, and pain and suffering.

9. Past Medical Expenses

The defendant must pay for reasonable and necessary medical care the injured worker had. Even if bills have been paid by insurance or forgiven does not prevent the plaintiff from introducing them at trial. Unfortunately, where a spouse provides services to the injured worker, such services are not compensable unless a specific contract is vested between the husband and wife.

10. Future Medical Expenses

In order to collect for future medical expenses if is necessary for a medical expert to state such care is required. The amount of proof required at trial is dependent on the type of care required and the condition of the worker at the time of the testimony. For instance, in the case of institutional care, the plaintiff’s life expectancy must be introduced at trial. Future medical expenses need not be reduced to present value.

11. Incidental Expenses

The courts have allowed recovery for the cost of assistance at work, renovations to one’s home, transportation and lodging for specialized medical care out of state.

12. Loss of Earning Capacity

An injured worker can recover for loss of past earnings as well as lost earning capacity. Lost earnings are actual monies which the injured worker would have earned but for the accident. Loss of earning capacity is a reduction of the injured worker’s ability to earn money irrespective of the specific job he or she held. The latter considers all possible earning capacities the injured worker could have in the future. It also recognizes that what someone is earning at any given time is not always reflective of what they could earn in the future. This is especially critical I the case of a young worker who is just entering the workforce. Even the elimination of the injured person’s job does not preclude a claim for loss of earning capacity. The key issue is whether the injured person’s “economic horizon” has been lessened and not whether that same job is available. In the case of Mathis v United Engineers and Constructors Inc., 554 A2d 96, the court held that a laborer who had been injured at a construction site was entitled to a reduction of earning capacity. The court reasoned that even though he was re-employed at his old job at the same hourly rate, his overall value in the labor market had decreased and he would earn less if he were fired. Expert testimony must be submitted at trial on how much the injured worker has suffered from a reduction of his or her earning capacity.

13. Loss of Past Earnings

The injured worker can recover for past loss of earnings and earnings capacity. In order to prove past lost earnings it is necessary to show the wage rate, the amount of work available, and the capacity at which the employer was operating at the time of the injury. Because of the collateral source rule, an injured worker can recover for wages since the accident even though he had been paid the wages.

14. Future Earnings

An injured worker must prove his disability will continue into the future in order to recover for future lost wages. This disability in the future must be quantified by a medical expert. This would include any permanent disability claimed by the worker, taking into account not just the worker’s life expectancy but the working life expectancy as well. Merely reaching retirement age does not necessarily cut off damages, as many people continue to work beyond their retirement age. Further, disability need not be total in nature, as the jury may consider any partial limitations on the injured person’s ability to work.

15. Fringe Benefits

Loss of paid vacations, health and life insurance, retirement benefits, and the employer’s contribution of Social Security benefits may also be recovered by the injured worker. Any actual receipt of fringe benefits in the future will normally be deducted.

16. Present Value

The award for future loss of earnings will not be reduced to present value. The underlying theory is that future inflation will offset any advantage the injured worker may have in receiving the monetary award in the present.

17. Income Taxes

Under Pennsylvania law, a jury may not consider income taxes in making an award of damages. This would apply both to past and future earnings, as well as a loss of earning capacity.

18. Pain and Suffering

In addition to recovery for medical expenses, wage loss and impairment of earning capacity, an injured worker can recover monetary damages for pain and suffering. Pain and suffering, both past and future, includes physical pain, mental anguish from an injury, humiliation, disfigurement and loss of life’s pleasures. The amount of money awarded for pain and suffering varies with each person. The amount to be awarded is not what an average person would be awarded, but rather what this individual should receive. Merely because a person has resumed his work or daily activities does not mean a claim for pain and suffering can be made. The injured worker may also recover for pain and suffering if his condition worsens. Fright or mental suffering directly related to the accident may also be rewarded even though no significant physical injury occurred. Even pre-impact fright is compensable, as in an injured worker witnessing a fellow person being injured may be sufficient to receive monetary damages. Disfigurement such as a scar from an injury is compensable. Merely because plastic surgery is available does not prevent such a recovery, because the reward is made at the time of trial. Loss of life’s pleasure is also compensable. It includes being able to carry on a normal life, reducing one’s serial activities, not being able anymore to marry and have children, and losing a feeling of well-being.

19. Permanent Impairment

Many times an injured worker suffers a permanent impairment as a result of an injury. A person’s life expectancy is established by federal government statistics will be used to determine the monetary amount which should be awarded for such permanent impairment.

20. Collateral Source Rule

A defendant may not benefit from what other sources, such as insurance companies, have paid to the injured worker. The jury cannot tell that the medical bills have been paid by an insurance carrier. Sometimes this results in double recovery, but that law allows for the injured worker to do this rather than benefiting the defendant for such payments. The Collateral Source Rule has been applied to health insurance payments, unemployment compensation, workers compensation, social security and retirement benefits.

21. Loss of Consortium

The spouse of an injured worker, whether husband or wife, may recover a monetary amount for loss of the injured spouse’s conjugal affection, comfort and assistance, protection, guidance, companionship, and the ability to perform sexual relations. Live-in companions are not covered by this loss, although there is some case law which states a common law spouse would be covered. A claim for loss of consortium only derives from that of the injured spouse. If the injured spouse does not recover on the liability issue, there can be no recovery for the spouse claiming loss of consortium.

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