The major players at a construction site will have their own safety manuals or safety handbooks, or at least they should. Those important manuals/handbooks will be made available to their employees. Take the case of a general contractor. We know from prior blogs that a general contractor must designate a person with the responsibility of safety. That individual would have acknowledged by his/her own signature that he or she had received that safety handbook, had reviewed its contents, and understood its importance. After all, it is the expression of the company’s mission and thought process on a variety of issues, chief among them the issue of safety. I suggest it is very relevant and very helpful to have a copy not only of the manual/handbook but also the acknowledgment signature. As lawyers, we like to use the term “probative” and the acknowledgement is indeed probative as to the understanding of the importance of the company’s safety guidelines -guidelines that become their standard for what is right and safe.
Well, what about that safety manual or safety handbook? You want to get copies of every safety manual that was in effect from before the accident (of course), during the accident (of course), and even after the accident. The company’s manuals after the accident are useful because it could be that the changes to a policy were made as a response to your client’s accident. Take the scenario that the safety principle in an earlier handbook was violated. Why was it not followed, not adhered to, not abided by? Perhaps the general contractor or other defendant in your litigation felt the principle wasn’t sufficiently articulated in the earlier version. In that instance, we may have a newly articulated principle- a principle that, despite the oft heard argument that “it’s subsequent to the accident and therefore not admissible,” may well be admissible on some basis. In prior blogs, I’ve suggested a few ways to use those helpful changes.
But let’s turn to the significance of that failure to conform to the safety principle, where the principle was in effect at the time of the accident. How can it be used in your case and to your advantage?
It is well settled in Massachusetts, it is well settled in evidence law, that a violation of a safety provision, a company’s own safety provision, is evidence of negligence. We have seen that with violations of laws and violations of regulations time and again. A judge will instruct a jury, and your lawyer can argue in a mediation or otherwise that this will happen if the case were tried, that it is to be considered evidence of negligence. (Of course, as a preliminary finding, the jury must find that it was violated.) Sometimes an opposing lawyer will say that you cannot charge a company with not adhering to a particular provision of safety on the company’s part. But it is evidence and the courts have said this for over 100 years in Massachusetts. It is evidence of what the defendant thought was significant, what their state of mind is, and what they thought was necessary for safety. See Stevens v. Boston Elev Ry, 184 Mass. 476 (1904) where “[a] violation of printed or written rules designed to promote the safety of passengers is evidence of negligence.”
Thus the defendant’s own handbook, which should be acknowledged by the adversaries in your construction accident litigation as an important guide, will offer you an opportunity to demonstrate negligence in your construction accident case. This handbook, when coupled with industry regulations, customs in the industry, statutes, and the involved contracts will form a solid basis for your lawyer to establish negligence.
The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.
Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.