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By: Geoffrey S. Pope Published: September 2020

Pre-Planning for Safety, and Taking Nothing for Granted

Public and commercial construction in the U.S. are marvels of order, usually, coming out of chaos.  Midsize and large projects can take months or years to build.  Those who do the building on a single project can include corporations with sleek offices, and hundreds of employees, and specialty trades, consisting of a single owner with some tools in a van, and a laptop computer.  As the job progresses, many of the players will arrive, perform discrete tasks, and disappear, and the “choreography” of activities (and associated safety hazards) can change from month to month, or even day to day.  Those who do the physical work may speak dozens of different languages, and may (or may not) have ongoing relations with other entities who perform work on the project.

OSHA, under its “multi-employer policy” will hold you, as a construction industry employer, responsible not only for violations that your company has caused, but potentially for conditions caused by others, to which your employees had access.  While, typically, it is the general contractor or construction manager that takes the lead on safety planning and oversight, even if you are a small, specialty trade, with just a few employees, you may be held liable under OSHA, if the party nominally heading up safety activities drops the ball.  Worse, you may have one or more employees injured, or even killed, if another actor is not knowledgeable, energetic, and scrupulous about ensuring compliance with OSHA’s construction standards.

A case I came across this month reminded me of the inadvisability of placing too much trust in others to follow sound safety practices.  The case in question wasn’t a construction case, and the party that may have fallen down on the job was a prosperous county in downstate New York.

The case involved two young women, Abigail, 17, who was driving a car owned by the mother of her passenger and friend, Kimberly, 19.  One night (with two additional friends in the back seat) they made two stops at convenience stores, where Kimberly made illegal purchases of alcohol.  Driving, apparently “buzzed,” down a country road, Abigail was distracted by a controversy with Kimberly over which songs should play on the car radio, and swerved onto the median that separated the roadway’s eastbound and westbound lanes.

The median was V-shaped, with a steep slope downward toward the center.  The errant automobile hit the opposite slope, turned over at least once, and came to rest on the median.  Abigail, the driver, was injured.

Abigail brought a personal injury action against multiple defendants.  As against the County, the theory of Abigail’s lawsuit was that the median had been constructed with a “non-recoverable slope,” and was therefore under a duty to provide safety equipment, to aid the driver of an errant vehicle in regaining control.

The decision I read was came from the New York Appellate Division, and modified the lower court’s determination by dismissing the lawsuit as against the vehicle owner (while affirming as to the dismissal of the action as against the convenience store owners, and the denial of summary judgment sought by each of Kimberly and the County).

As a municipal corporation, the County, in the field of traffic design engineering, enjoys a qualified immunity from liability arising out of a highway planning decision.  It will be subject to potential liability for a highway safety planning decision only if its study of the condition was plainly inadequate, or its traffic plan lacked a reasonable basis.  To qualify for such immunity, the municipal entity must establish that its discretionary determination was the result of a deliberate decision-making progress, the responsible planning body having examined and passed upon the very same question of risk that would ordinarily be decided by the jury.

The liability of a municipality begins and ends, however, with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition.  No liability can be found, unless the municipality’s negligence in carrying out its duty is a proximate cause of the accident (although it need not be the sole proximate cause).

Relevant to the case we are examining is that, while municipalities may be responsible to furnish safe guardrails, otherwise its duty, beyond the travel lanes and shoulders, only comes into play where it had actual or constructive notice (from a prior accident or other event) of a specific dangerous condition, and failed to take reasonable corrective measures.

In the case under discussion, I was somewhat startled to read, the police officer who responded to the incident testified that he had responded to other accidents in the same area, which (as the Court found) ought to have put the County on notice that the slope of the median was potentially unsafe.

Because of this testimony, and because the County’s witness was unable to state whether the median had a “recoverable” or “non-recoverable” slope (or complied with industry standards) the Appellate Division agreed with the plaintiff and the trial court that there existed a fact issue concerning the County’s entitlement to qualified immunity, precluding summary judgment for the County.

The moral here, of course, is that you mustn’t place too much confidence in people, or institutions, or other contractors to pay sufficient attention to safety, sand you should, on every project, make appropriate inquiries to ensure the safety of your employees (and document your efforts).

By way of analogy to a construction scenario, OSHA Subpart T, 29 CFR § 1926.850, mandates that, prior to permitting employees to start demolition operations, an engineering survey of the structure shall be made by a competent person, to determine the condition of the framing, floors, and walls, and the possibility of an unplanned collapse of any portion of the structure.  Any adjacent structure where employees may be exposed must be similarly checked.  The employer is required to have in writing evidence that such a survey has been performed.

Thus, if no pre-demolition engineering is carried out, your company (in addition to all other trades as may be found to have had employees working in the premises) is at risk of being cited for failing to have it performed.  This is so even if you are a follow-on trade, no one was relying on you to obtain the survey, nothing collapsed, and no one got hurt.

In addition, your failure to have in hand evidence that the survey was performed is an independent (if arguably “Other than Serious”) OSHA violation.

Given the risks of construction and the profusion of trades on most projects, communication is the key.  Many OSHA citations, and many injuries, can be averted, if even one trade isn’t shy about safety, and asking questions.

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