The last blog emphasized the conduct that is expected of the person in charge of a construction site. Those duties include paying attention to danger or potential danger. But that is not enough. There must be communication in a proactive way on the importance of safety. Communication cannot be overlooked. Yes, it starts at the top and it should start at the beginning of the project. At the outset, a subcontractor must be informed as to safety expectations. Meetings should be held regularly on the site to convey expectations and to monitor compliance. These meetings are in addition to visual observations. Thus you are correct to say that communication takes place even before a Project Manager becomes aware of a problem. Certainly, once there is a known problem, it must be dealt with immediately. But good practice means that safety is addressed in some detail before any problems or lapses are observed.
You may be familiar with an expression we often hear in politics: “What did he know and when did he know it”? I first became aware of this two-pronged question (actually lawyers will call that a compound question) almost 50 years ago during the Senate Watergate Committee hearings. The phrase has been echoed by political observers over the last several decades. It applies perfectly to assessing the conduct of the Project Manager or Project Superintendent.
There are many questions that can be used to ascertain what the person in charge knew and when did he know it. Did the manager or superintendent know exactly what work was being done by the subcontractor? Was it work that was called for in the contract? How much of this work had been completed at the time of the accident? Once again, we would ask a jury or a mediator to engage in commonsense. Was the client doing this particular job for several days or weeks before the accident? Common sense tells us that the superintendent had more time to address the safety implications of potentially dangerous behavior if it had been going on for a while.
Safety is addressed in safety meetings. The custom and practice of many job sites is to have regular meetings with the subcontractors. Anything less, and certainly if no meetings occur, should be characterized as “out of the norm.”
What documentation was made of any such safety discussions? Documentation will give your lawyer a basis in which to cross-examine people who are at this meeting about what went on. (If there is no documentation, that is an issue of course.) The more documentation there is will lead to more questions.
Pictures are a form of documentation as well. Who took the pictures? Was it the person charged with safety? Were there only pictures or were there videos? If there’s video there could well be audio. The audio done while the video was being recorded could provide admissions regarding the conduct of the Project Manager or superintendent. A thorough document request should result in the production of these job site pictures and videos. There is no legal basis to claim that these pictures and videos taken before the accident were made in anticipation of litigation. They are, as we plaintiff lawyers like to say, discoverable.
On many construction sites, pictures and videos are done regularly and extensively. There is an obvious reason for that: the General Contractor is publicity conscious so documentation of the progress of the site is a form of publicity, now or in the future. But it can have another purpose, namely to keep the owner of the project aware of what’s going on. The point is that pictures will offer a lot of insight as to what was going on at the site. Yes, a picture is worth a thousand words.
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.