By: Thomas H. Welby Published: November 2013

Safefy Policy: Construction Manager Not Liable Under OSHA for Conditions Leading to "Freakish" Accident

A recent ALJ decision demonstrates that, while a construction manager may, as a "controlling employer," be responsible for an OSHA violation by a subcontractor, the extent of the measures a controlling employer must implement, to satisfy the duty of reasonable care, is less than what is required of an employer with respect to protecting its own employees. Because the hazard in question was found to be outside the range of what could normally and reasonably be anticipated, the requisite of actual or constructive knowledge was negated, and the citation against the construction manager was vacated.

In Secretary v. Manhattan Construction ("Manhattan") was acting as construction manager on a resort expansion project. Two employees of E.C. Concrete ("ECC"), Manhattan's concrete subcontractor, were injured while entering a building under construction, when a half-dozen shoring beams fell from atop a scaffold on the seventh floor to ground level. An ECC crew on the seventh floor had used a crane to place the beams on top of a shoring scaffold, which tipped over when the crane's hoist chains became entangled with the scaffold's cross-brace.

Both Manhattan and ECC were issued "Serious" OSHA citations. Manhattan was alleged to have failed to use barricades to protect its subcontractor's employees from falling objects during overhead concrete work. It was not disputed that the first-floor entry being accessed by the ECC employees was not barricaded; that the guardrail system along the perimeter of the seventh floor had been removed; and that there was no canopy structure to protect persons in the entryway area from being struck by falling objects.

On the day of the occurrence, an ECC crew on the seventh floor was constructing a shoring system, to support the concrete pour for the roof. The tables supporting the seventh floor were still in place, and extended 3-4 feet beyond the concrete floor. The rented shoring system used by ECC was constructed in accordance with specifications provided by a consulting engineer. ECC had assembled and placed shoring scaffolds parallel to and approximately 6 feet from the floor perimeter. Each shoring scaffold weighed approximately 400 lbs., and was about 4 feet wide by 7 feet long, with four 10' vertical legs and cross-braces.

The ECC crew had used a crane located on the ground to hoist a half-dozen 17' long, aluminum beams, and place them on top of one of the shoring scaffolds. Each beam weighed about 60 lbs.

After the lift had been completed, the crane's hoisting chains became entangled with the scaffold's cross-brace, causing the scaffold to be lifted off the floor, and tip over onto the floor's perimeter. The scaffold did not fall off the floor, but rested precariously on the perimeter, extending over the edge. However, the 60-lb. aluminum beams did fall, injuring the two ECC workers below.

The construction manager contested the citation and penalties. At the trial, Manhattan argued that the Secretary had failed to show that Manhattan knew the employees on the ground were exposed to falling objects, because the accident was "unforeseen and freakish." Manhattan also asserted the "multi-employer work site defense," claiming that, as the construction manager, it did not create or control the alleged unsafe condition, and had no employees exposed to the condition.

Under the standard cited, when employees are exposed to falling objects, the employer must have all of them wear hard hats, and implement one of three additional measures. Since there were no toeboards, screens or guardrails, and no canopy structure, the employer was required to barricade the area to which objects could fall, prevent employees from entering the barricaded area, and keep objects that might fall a sufficient distance from the edge of the higher level, so that they would not go over the edge if accidentally displaced. OSHA's Safety Engineer testified that the hazard of falling objects resulted from the subcontractor's placement of the 10' high shoring scaffold just 5'8" from the concrete perimeter of the seventh floor.

In support of its multi-employer worksite defense, Manhattan strove to distinguish its role on the project as construction manager from that of a general contractor, and to push all responsibility off onto ECC, based on ECC's having agreed, in its contract, to ensure compliance with applicable safety standards.

The ALJ agreed that Manhattan was not responsible for performing the concrete work, or the shoring system, and had not placed the beams on the shoring scaffolds, or created an unsafe condition. The ALJ acknowledged, too, that there was no evidence that Manhattan's own employees had been exposed to the hazard of falling objects. (This last finding, in my estimation, was somewhat dubious, as Manhattan's personnel were always on site, and had access to the entry area into which the beams fell).

The ALJ found, nevertheless, that, its protestations notwithstanding, Manhatttan was a "controlling employer," and thus potentially responsible for the violation, even though it did not create the condition, and no employees of its own were exposed.

The ALJ credited ECC's superintendent's testimony that Manhattan had the authority to stop ECC's work, correct unsafe practices, and choose access points. Manhattan, the super testified, had "somewhat" directed ECC's work. Someone from Manhattan was on site at all times, ECC considered Manhattan to be no different from a general contractor, and ECC's contract was with Manhattan.

During the inspection that followed the accident, Manhattan agreed it was in control of the project, could correct hazards, and could stop the work of a contractor if it saw an unsafe condition. Although ECC was contractually responsible for safety, the ALJ found, Manhattan was not relieved of its responsibility to ensure a safe workplace: an employer cannot contract away its OSHA duties. Manhattan's designation as "construction manager" did not negate Manhattan's control over the subcontractors and the project. The ALJ found that Manhattan had the same degree over the project as a general contractor would have.

The ALJ found Manhattan to be a "controlling employer," and that the elements of the application of the cited standard, noncompliance, and employee exposure had all been proved. The ALJ nevertheless vacated the citation, and assessed no penalties. The ALJ rejected the Secretary's argument that ECC's actions, in placing the beams on the scaffold, and the scaffold so close to the perimeter, were open and obvious, wherefore Manhattan, with reasonable diligence, ought to have discovered them, and recognized them as hazards.

The standard cited, the ALJ found, required the Secretary to show, as a predicate to requiring abatement such as barricading, that "an employee is exposed to falling objects." That determination requires consideration of the nature of the object, and the distance of the object from the perimeter.

The scaffold, the ALJ reasoned, could not reasonably have been expected to tip over and pose a falling object hazard. It weighed more than 400 lbs., was stable, and located almost 6' from the perimeter.

The ALJ noted that the same OSHA engineer who did the post-accident inspection, and recommended the citation, had performed a second inspection about 5 weeks previously. Despite having observed ECC's shoring system under similar conditions, he had not identified any problems, or recommended a citation. But for the accident, he admitted, he would not have recommended a citation at the time of his later inspection.

The ALJ found persuasive testimony by an engineering expert that, under foreseeable conditions, there was no employee exposure to a hazard of falling objects posed by ECC's shoring system. Even assuming displacement of the beams atop the scaffold, he opined, the beams ought to have fallen not more than 18" from the base of the scaffold. This engineer had never designed a shoring system where he anticipated a crane picking up a scaffold, or beams on top of the scaffold being displaced.

In sum, the ALJ agreed with Manhattan that the accident was freakish: none of the Manhattan and ECC employees, with long careers in the industry, had ever experienced, heard of, or seen a similar accident.

The construction manager, the ALJ concluded in vacating the citation, could be charged with constructive knowledge of only such hazards as could normally and reasonably have been expected, based on knowledge, experience and expertise of the work being performed.

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