Assessing Construction Site Safety: Who’s Responsible?

Lt. Col. Bryan J. Smith, PE, Construction Site Safety Expert

Case Description/Summary: During the performance of a project to construct a multi-unit apartment complex, a second tier subcontractor foreman was injured while removing temporary stairs. One temporary stair riser section collapsed while he was working upon it to free it for removal, resulting in his twenty foot fall and severe personal injury.

Expert Analysis: Long after the incident, a site survey was conducted to inspect all of the removed temporary stair sections. No evidentiary findings could be made from the inspection. A review of all involved parties’ responsibilities revealed that the represented defendant firm was not responsible for this portion of contract work though they did have responsibility for all underground utilities and site improvements. The general contractor (GC) for the building portion of the project is held responsible for overall site safety by OSHA.

However, the GC is not required to assess the suitability or applicability of their subcontractor’s safety program. A GC can rely on his hired subcontractors to perform work in a “safe, professional, workmanlike manner” – which includes the proper assessment and protection of their employees against hazards inherent in the performance of their trade work, as well as adherence to all Federal, State and local laws. OSHA recommends that workers in the construction industry, who are working on surfaces with unprotected sides or edges which are six or more feet above the lower level, must be protected from falls by their employer. Testimony given in the matter revealed that the injured worker was performing work at an elevated height without any personal protective equipment (PPE), as required by OSHA. In this situation it was clear that a personal fall arrest system or device should have been used by the worker(s) at risk. It is common practice in the construction industry that the entity engaged to perform work is solely responsible for the “means and methods” used to perform it. The involved second tier subcontractor had the opportunity to select any of various methods to demolish the temporary stairs. That they chose to do so without the use of PPE, made them the “Exposing”, the “Creating” and the “Correcting” employer under OSHA’s Multi-Employer Citation Policy. The fact that the owner of the injured worker’s firm had the authority to demand the use of PPE by their workers, made them co-responsible as the “Controlling” employer along with the first tier subcontractor (who hired them) and the general contractor.

Result: The represented defendant firm settled for a minor amount.

Training and Supervision:

Asphyxiation Accident on Construction Site

Johann F. Szautner, P.E., PLS

Case Synopsis: Two construction workers were retrieved unconscious from a sanitary sewer manhole. They were assigned to prepare the sanitary sewer manhole for construction specification compliance testing. Both men succumbed to asphyxiation, a result of entering this manhole, the atmosphere of which had a severely depleted level of oxygen and contained a high concentration of CO2, according to subsequent testing. The contractor was cited by OSHA for workplace safety violations. The manufacturer and supplier of the manhole components was named a 3rd party co-defendant in the ensuing litigation.

Expert Analysis: The contractor had little experience in sewer construction and pertinent OSHA regulations for provision of a safe workplace. With the exception of attendance of a trenching and shoring seminar, formal training of the employees did not occur. The trenching and shoring seminar was given by a professional safety training provider but provided erroneous information on the classification of “new work to be tied in” as a “non-permit required space,” thus misleading attendants about the atmospheric hazards of entering a manhole. Additionally, the contractor did not have a competent person on-site; nor adequate equipment for a confined space entry; nor was a confined space entry permit program in place. The manufacturer of the precast concrete manhole supplied components to be assembled by the contractor. His product met the prescribed construction and performance specifications, industry standards and owner approved shop drawing instructions.  The manufacturer was not a site contractor and had neither the duty nor the authority to manage site safety, including proper confined space entry. One of the plaintiff’s experts concluded that the accident could have been prevented if the manhole manufacturer had provided warning labels with the supplied manhole components. The effectiveness of warning labels is inconclusive as they often fail to work and there is no proof that they actually reduce accidents.

Conclusion: Case settled with 3rd party defendant