Construction sites are known to have heavy machinery, steep heights, and a whirlwind of activities from a large number of actors. Naturally, all this brings considerable risks. The statistics bear the danger out so it is no surprise that the industry is heavily regulated by federal, state and administrative bodies. We will talk about the many statutes and regulations that could apply, but first let’s talk about OSHA, the Occupational Safety and Health Administration.
OSHA is the federal agency that we all know very well. It has been around since 1970 and its mission really is the protection of people in the workforce and the protection of work sites. A violation of an OSHA regulation can be evidence of negligence under our Massachusetts evidence law. OSHA’s regulations are helpful in establishing the standard of what is to be expected on a construction site. Does it matter whether OSHA investigates an incident? Can there be a use for the regulations when OSHA does not come out? The fact is that if there is a violation of an OSHA regulation in the minds of the factfinder, a jury – whether OSHA has investigated or not- that evidence can be introduced in the construction accident case. It can be an effective weapon in settling or prevailing at a trial.
Just as OSHA has regulations, the Commonwealth of Massachusetts, by its regulatory authority, has its regulations. The State Board of Building Regulations and Standards has promulgated 780 CMR 107.6.3. I know that’s a lot of numbers, but it says something very important. It reads:
Construction contract services, the actual construction of the work, shall be the responsibility of the general contractor as identified on the building permit. That person shall execute and control all methods of construction in a safe and satisfactory manner in accordance with all applicable state, local and federal statutes and regulations.
The above expresses yet a second regulatory burden after OSHA. To recap: we have OSHA and then we have what is known as the CMRs, the Commonwealth of Massachusetts Regulations. We do not stop there in proving our case. We have what I refer to in other blogs as the American Institute of Architects Standard Form 201-2007. Those crucial provisions from that crucial document, particularly in Article 10, put the responsibility for safety on the general contractor. (It actually refers to the “contractor” but it unambiguously means the general contractor.) The upshot of Article 10 is that it sets out in about six subsections various responsibilities on general contractor. At minimum, it is a joint responsibility with the other actors on the site but there is no doubt that there is responsibility on the general contractor. It has been called a nondelegable duty. That means what it says in that the general can’t pass off the responsibility, try as it might. Additionally, as I say in another blog, there are safety manuals and safety protocols that a particular company might have disseminated to its employees and expect their employees to follow. That too is another source of proving your construction site case.
Finally, you will use your own expert who is familiar with OSHA and familiar with what goes on in a construction site. He/she will tell you what constitutes good and safe industry practice. Those practices deserve attention and respect. When you put all these elements together you come out with a sense that the burden is squarely on certain parties or on a particular party, usually the general contractor. That party, likely to be the defendant in your case, must adhere to good and safe construction practice. This will minimize the risk of injuries. The job of the construction accident lawyer is to establish that the failure to abide by these standards and rules, found in so many sources, was in all likelihood a substantial contributing cause of the client’s injuries.
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