By: Thomas H. Welby Published: November 2012

Safety Policy: Don't Be "Penny Wise and Pound Foolish" with the Lives and Safety of Your Employees

Since most of our firm's clients are construction contractors, we hardly have to be told that getting work, and getting paid, are real problems for many in the industry.

With the national deficit crisis going from bad to worse, and many predicting dire economic conditions in the near future, everyone who wants to stay in business is, or ought to be, looking at ways to economize.

Even in these times, however, in reviewing cases for this series I'm appalled by accounts of employers that place their employees' lives and safety at risk, to avoid spending even insignificant amounts of money to protect them.

One recent case involved a multi-prime contractor job on a large, damp, water pollution control project owned by New York City.

The electrical prime contractor, which we'll call "XYZ Electric," was, as usual on "Wicks Law" projects, responsible to provide temporary lighting all over the site.

A 41-year-old employee of the concrete and steel contractor was standing on a metal scaffold, provided to him by his employer, removing wood forms from the ceiling with a hammer. It was raining, and the inside of the partially-constructed building in which he was working was damp. There were water puddles about a half-inch deep on the floor on which the scaffold stood. Plaintiff was using a lighting unit, supplied by XYZ, the electrical prime. The unit had been tied at floor level to the bottom vertical beam of plaintiff's scaffold, exposed to the rain. Plaintiff was wet, due to rain, sweat, and water that fell on him from the ceiling, as he was removing the wood forms.

Laborers stripping ceiling forms would customarily drop the debris down from the scaffolding. A witness later testified that approximately five lighting units had been taken out of service, after being damaged by debris dropped by workers in this manner.

In the plaintiff's case, debris tossed by him from the scaffold struck the lighting unit, damaging the unit's cover, but not the light bulb. The unit remained energized, its bulb remained lit, and the circuit breakers within the electrical distribution panels were not tripped. A worker heard a sound of electricity - but still the circuit breakers in the distribution panels failed to trip. Almost instantaneously, the plaintiff touched the wet, metallic scaffold with one of his hands, and received an electrical shock. His injuries were not fatal, but they included a permanent, 70% loss of vision in both eyes, as well as serious cervical/lumbar disc and nerve damage.

The lighting units, assembled from components purchased separately by XYZ, included a fixture (flood light), a power cord, and a clamp. The astonishing thing is that, while XYZ kept onsite, and issued for use by its own employees, power cords equipped with ground fault circuit interrupters (GFI's), the units it assembled and provided to workers other than its own employees were without this added level of protection.

In the state court personal injury action that ensued, XYZ's general foreman testified that GFI's were "a little more sensitive" than the circuit breakers in the distribution panels. "Most electricians," the foreman testified, provided two layers of shock protection (i.e., a GFI attached to the lighting unit, and operable, adequate circuit breakers servicing the temporary power line). The reason for the GFI's on the individual units, according to the foreman, was that there was "a lot of water on the job, you don't want to get electrocuted."

Others, XYZ's foreman testified, had requested to use XYZ's units which, unlike those supplied by XYZ to non-employees, were equipped with GFIs. The safer units, however, were never loaned out. Asked why this was, XYZ's foreman replied, "Money. Everybody supplies their own stuff."

To be sure, the injured plaintiff's own employer, which had affixed the XYZ-supplied unit to the metal scaffold in the rain, arguably ought to have noticed that a GFI-equipped power cord (costing just a few dollars more) would be safer. Indeed, the plaintiff himself can be said to be partly responsible for his own injuries, as if he wore work gloves at all, the same were not insulated. Everyone involved, I think, ought to have noticed that the lighting units were subject to damage from falling debris and other hazards, as several units in use on the project had been removed from service for just that reason.

The matter came before the Court, however, on a welter of motions and cross-motions, including one by XYZ for summary judgment, dismissing the injured plaintiff's several causes of action against it. One cause of action - the one based on New York's "Scaffold Law," Labor Law § 240(1), had to be dismissed, because the facts showed clearly that the occurrence was not gravity-related.

The additional Labor Law and common-law negligence causes of action were sufficient, the Court found, for the action to go to a jury. "Essential" to the Court's decision, its decision said, was deposition testimony by XYZ's foreman, in which he stated that, had the damaged lighting unit been equipped with a GFI, it would probably have tripped when the scaffold became electrified. Asked whether the circuit-breakers in the distribution panels ought to have prevented a person from being shocked by standing and holding onto an electrified metal scaffold, XYZ's witness testified, "I don't know the answer to that."

While the plaintiff's injuries in the case under discussion were not life-threatening, it is no small thing, at age 41, to lose 70% of your vision. Moreover, while XYZ was but one of several employers on the project site not to supply GFIs for use with the temporary lighting fixtures, it was the contractor with primary responsibility for the temporary lighting.

That, probably, XYZ had liability insurance, and its legal defense was probably paid for by its carrier, is beside the point. If you work on substantial, multi-employer projects, both under OSHA and under New York law, you may be exposed to liability for hazards including ones you did not create, and for injuries to employees not limited to your own.

It's hardly good for employee morale to recognize that the employer cares too little for the lives and safety of the workers carrying out the project to spring for GFI-equipped power cords, or other safety equipment. In addition to the importance of "doing the right thing," every "serious" OSHA violation, every injury grave enough to produce a lawsuit has indirect, as well as direct, costs (some of which may be overlooked but are nonetheless real). Yes, the monetary costs to comply with OSHA and the Labor Law, and to provide your employees with a safe workplace, are not negligible. From time to time, I'm sure, companies acting in good faith have to make tough choices regarding how to keep costs down - including those for safety measures above the bare legal minimum.

However, where as in the case discussed, it ought to be easy to draw the line in favor of adding an extra measure of protection, it is "penny wise and pound foolish" not to expend modest sums of money to do so.

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