Construction Companies Must Coordinate with Engineers to Establish Rigging Plans

The decision in Secretary of Labor v. Tower King, II, Inc. should serve as reminder to the construction industry, and companies specifically involved in work on telecommunications towers that rigging plans must be coordinated between the contactor and qualified engineers, and if there is a change to that plan it must be updated, accordingly.

This matter arose from tragic incident in September 2017, in Florida, where three employees of Tower King, II (“Tower King”) were killed while working on equipment attached to a communications tower that detached and fell 1000 feet to the ground. Tower King, was a small company engaged in the construction and maintenance of telecommunications towers. The company was founded by Kevin Barber who had over 30 years of experience in the industry. Tower King had been retained to perform work on a television station’s tower in Miami, Florida. The tower stood at about 1000 feet and had a three-armed structure at the top, which was called an arbor. Each arm of the arbor had a pedestal on which an antenna sits. According to Mr. Barber, the tower was meant to originally hold three antennas for three broadcaster but one broadcaster backed out, so to balance the pedestal a “dummy pole” was installed. Tower King was contracted to remove the dummy pole and pedestal on which it sat and replaced with two-section pedestal and working antennae. To lower the old equipment and erect the new equipment to the top of the tower, Tower King utilized a “gin pole” which is a lifting device consisting of a latticed or tubular boom that would raise or lower parts of the tower into the necessary position. The gin pole would be attached to the arbor using a bridle connection at the top and a basket connection at the bottom. The connections would be made using steel slings tightened with chains. The gin pole and the equipment that would attach to the tower comprised the rigging system.

Tower King contracted with Stainless Inc. (“Stainless”) to perform the engineering review of the project given that Tower King did not employ individuals with an engineering background. Tower King needed to ensure that the tower could ensure that the tower would be able to sustain the loads of the project, inclusive of the rigging system. Stainless was to conduct an engineering review to determine the imposed loads resulting from the rigging system and certify that the structure could withstand them. Mr. Barber chose Stainless for among other reasons, because they had originally designed and manufactured the tower. Mr. Barber followed the standard practice of providing the rigging plan he developed to Stainless, who performed the calculations and certified the plans. Tower King had five employees at the site, and while two remained on the ground, while three worked on the tower and were properly secured by a personal fall arrest system for which they were tied off to the gin pole. The gin pole would be first be attached to the tower by raising it in place and setting it on a track attached to the arbor. Once the gin pole is set, it would be “tied back” or attached to the tower with the rigging equipment and after this process is complete, the workers would begin the process of removing the dummy pole by first detaching the old equipment and lowering it to the ground, using the gin pole. The new equipment would in turn be raised to the arbor by the gin pole where it would then be attached.

At the time of the incident, Tower King’s employees were in the process of completing the work to replace the dummy pole. Three employees were tied to the gin pole while two were working on the ground. As the they were moving the old pedestal that had been lowered, the gin pole detached from the arbor and fell to the ground killing the three workers. Authorities reported to the scene and Tower King notified OSHA who investigated obtained documents and issued a citation against Tower King under the general duty clause which requires each employer to furnish to each of his employee a place which is free from recognized hazards that are likely to cause death or serious physical harm. The Citation provided that in this instance, the “employees were performing work…with out a complete rigging plan and exceeded the capacity of the rigging attachments of a gin pole that was attached to the tower and used to hoist loads, exposing employees who were tied off to the gin pole to fall hazards…” The Citation proposed a feasible abatement method of ensuring “a complete rigging plan was developed and implemented including when appropriate, having a qualified engineer review the pertinent parts of the plan such as the means and methods of rigging attachments of the gin pole. Tower King contested the Citation and the on-going litigation ensued.

The parties did not dispute that the accident was caused by the overloading of the rigging components at the bridle connection. However, the Secretary (of Labor) must establish that the “identified deficiencies could have resulted in a miscalculation sufficient to pose an overloading risk.” The applicable ANSI standards for communication towers as developed by the American Society of Safety Engineers and the Telecommunications Industry Association were discussed and as further commented by expert engineers testifying for either side. The industry standards do not specify the required contents of a rigging plan but rather identify considerations such as operational and non-operation construction loads, construction equipment, supporting structure, required load testing, etc.

Ultimately, the Administrative Law Judge (“ALJ”) gave more weight to Tower King’s expert. The ALJ found that the evidence did not establish that a failure to specify the angle (of the rigging components) at the bridle connections in the rigging plan submitted to Stainless deprived Stainless of information necessary to perform an accurate calculation of the imposed loads and the Secretary failed to establish this omission posed a significant risk. The parties also did not dispute that Tower King utilized a longer (and heavier) gin pole than in the plan submitted to Stainless due to field conditions and requirements. The submitted evidence was unclear as to specific decisions pertaining to the changing of the larger gin pole in the field but the ALJ found it was not the contents of the rigging plan submitted to Stainless that posed the hazard, but the deviation from that plan in the field and the Citation here did not address deviations from the plan but the contents of the plan. In light of the issues with the Citation in respect to the actual conditions in this unfortunate accident, the Citation was vacated. Nonetheless, to prevent accidents during rigging operations, the contractors must communicate with the engineers should there be a deviation of the plans due to field conditions that would impact imposed loads.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445